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Law Digest – Maryland Court of Appeals – Sept. 28, 2017

Court of Appeals

Criminal Law, Imperfect self-defense: Where a criminal defendant accused of murdering her husband presented evidence that her husband physically abused her throughout their 24-year marriage, that his abuse had escalated in the weeks preceding his death, and that at the time of his killing she lived in a constant state of fear, the defendant was entitled to a jury instruction on imperfect self-defense because defendant presented sufficient evidence that she actually believed she was in “imminent or immediate” danger to receive a jury instruction on imperfect self-defense, and reversal was required because the trial court’s misstatement of the elements of imperfect self-defense in its jury instruction was not harmless error. Porter v. State of Maryland, No. 88, Sept. Term, 2016.

Evidence, Frye-Reed test: Because there existed an “analytical gap” between an expert neuropsychologist’s review of a personality assessment inventory of the defendant and the expert’s conclusions about the defendant’s conduct, which were proffered as part of an imperfect self-defense argument, the circuit court properly excluded the expert’s opinion testimony on the basis that the expert’s opinion did not meet the Frye-Reed test. Savage v. State of Maryland, No. 82, Sept. Term, 2016.  

Family Law, Marital property: Under the Maryland Family Law statute permitting a valid agreement to exclude property acquired during the marriage from marital property, an agreement entered into by a husband and wife during the course of their marriage made manifest by three property deeds by which title was transferred to the wife by her husband was sufficient to exclude those properties from consideration as marital property. McGeehan v. McGeehan, No. 93, Sept. Term, 2016.

Real Property, Liens: A declaration recorded by a developer in the county land records, which created a contractual obligation on the part of future homeowners to pay an annual assessment to finance the developer’s construction of water and sewer infrastructure and gave notice of a lien for the homeowner’s failure to fulfill that obligation, did not itself create an enforceable lien where the declaration did not comply with the procedures of the Maryland Contract Lien Act, which provides a process for creating a lien on real property based on a contractual obligation that has priority over other liens as of the date a statement of lien is recorded in the land records. Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Company, LLC, No. 71, Sept. Term, 2016.  

Civil Procedure, Intervention: Medical cannabis growers who had been granted pre-approvals for medical cannabis grower licenses were entitled to intervention as of right in an action filed by a business that applied for but did not receive pre-approval for a medical cannabis grower license and  which sought to challenge the process of pre-approving and licensing medical cannabis growers, because the growers had vested and protectable interests that were not adequately protected by any other party in the action. John and Jane Doe v. Alternative Medicine Maryland, LLC, No. 98, Sept. Term, 2016.

Criminal Law

Imperfect self-defense

BOTTOM LINE: Where a criminal defendant accused of murdering her husband presented evidence that her husband physically abused her throughout their 24-year marriage, that his abuse had escalated in the weeks preceding his death, and that at the time of his killing she lived in a constant state of fear, the defendant was entitled to a jury instruction on imperfect self-defense because defendant presented sufficient evidence that she actually believed she was in “imminent or immediate” danger to receive a jury instruction on imperfect self-defense, and reversal was required because the trial court’s misstatement of the elements of imperfect self-defense in its jury instruction was not harmless error.

CASE: Porter v. State of Maryland, No. 88, Sept. Term, 2016 (filed Aug. 7, 2017) (Judges Barbera, ADKINS, Watts & Hotten) (Judges Greene, McDonald & Getty, dissent).

FACTS: Karla Porter was charged in the circuit court with the murder of her husband, William Raymond Porter (“Ray”), and related offenses. Porter met Ray in 1982. While they were dating, Ray began exhibiting controlling behaviors. After they were married in 1986, Ray began physically and verbally abusing Porter.

Ray’s physical and verbal abuse escalated in the year preceding his death in March 2010. During this time, Ray repeatedly expressed a desire to move to Florida. In early 2010, Ray picked up one of his handguns and yelled at Porter, stating that he did not want to take their children or his parents with them when they moved. He pointed his gun at her head and said, “Maybe I am not even going to take you. I should just kill you now.”

Porter testified that in the weeks leading up to Ray’s death she was “terrified almost on a daily basis.” She explained that she “things were just out of control” and that she was constantly “walking on eggshells.” Beginning in mid-2009, Porter approached multiple people about killing her husband. That summer, she gave her daughter’s boyfriend, Daniel Blackwell, $1,000 to “take care of” her husband. The week before Christmas, she asked one of Ray’s coworkers, Tony Fails, to kill him. Neither Blackwell nor Fails took any action against Ray.

In January 2010, Porter asked an acquaintance, Paige Huemann, if she knew where she could obtain some potassium cyanide to poison Ray. Eventually, Porter’s nephew put her in touch with Walter Bishop, who agreed to kill her husband in exchange for $400. As to her mental state, Porter testified, “In my mind, I knew he was going to kill me at any point.”

On March 1, 2010, Porter told Ray that the alarm had gone off at the gas station that they owned. Ray went to the station, and, at around 6:30 a.m., Bishop came in and shot Ray twice. Porter told the police that the gas station had been robbed and that the thief had shot her husband. Porter was arrested a week later. She admitted to police that she had paid Bishop to “beat up” her husband. Porter was charged with murder, conspiracy to commit first-degree murder, solicitation to commit first-degree murder, and use of a handgun in the commission of a crime of violence.

During the trial, Porter presented two expert witnesses to testify as to her mental state at the time of Ray’s killing: Dr. Neal Blumberg, a forensic psychiatrist; and Dr. Mary Ann Dutton, a clinical psychologist. The Porters’ daughter, Megan, also took the stand. She testified that her father often called her mother “a lazy bitch or a fat cunt” and told her “that she was worthless.” Megan had seen bruises on her mother’s arms and legs.

At the conclusion of the trial, the State objected to any jury instruction as to self-defense, but then proposed an instruction on imperfect self-defense for the court to use if it decided Porter was entitled to one. The State explained that it added language to the pattern jury instruction on imperfect self-defense because the instruction did not include all of the required self-defense elements. Porter objected to this change. She also requested that the jury be instructed to consider imperfect self-defense as applied to solicitation and conspiracy, not just murder.

The court agreed to read the State’s proposed instruction. As to Porter’s request regarding solicitation and conspiracy, the court found that imperfect self-defense could apply to those crimes. The jury ultimately found Porter guilty of first-degree murder, conspiracy to commit first-degree murder, three counts of solicitation to commit first-degree murder, and use of a handgun in commission of a crime of violence. She was sentenced to life plus 40 years in prison.

Porter filed a motion for a new trial, which the court denied. Porter appealed to the Court of Special Appeals, affirmed the judgment of the circuit court.

Porter appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals and remanded for retrial.

LAW: Porter argued that she was entitled to a jury instruction as to imperfect self-defense, and that the circuit court’s misstatement of law within the instruction constituted reversible error. Unlike perfect self-defense, imperfect self-defense does not require the defendant to demonstrate reasonable grounds to believe that he or she was in imminent danger. Rather, the defendant is required only to show that the defendant actually believed that he or she was in danger, even if that belief was unreasonable. State v. Smullen, 380 Md. 233, 252 (2004).

Additionally, to assert imperfect self-defense, the defendant is not required to show that the defendant used a reasonable amount of force against his attacker, but only that he or she actually believed the amount of force used was necessary. Id. Lastly, to have acted in imperfect self-defense, a defendant need only have subjectively believed that retreat was not safe; that belief need not have been reasonable. Burch v. State, 346 Md. 253, 283 (1997). The legal theory supporting the imperfect self-defense doctrine is that a defendant’s actual, though unreasonable, belief that he is in imminent danger “negates the presence of malice, a prerequisite to a finding of murder.” State v. Faulkner, 301 Md. 482, 500-01 (1984).

Here, the State conceded that the trial judge gave an erroneous jury instruction on imperfect self-defense. The court misstated the law regarding the use of force, instructing the jury that to find that Porter acted in imperfect self-defense, she must have “used no more force than was reasonably necessary to defend herself.” In fact, imperfect self-defense requires only that the defendant actually believed that the force used was necessary, not that the force used was objectively reasonable. Smullen, 380 Md. at 252. The court’s instruction also implied that the jury should objectively evaluate whether Porter could safely retreat. It told that jury to find imperfect self-defense only if “retreat from the threat was unsafe.”

This erroneous imperfect self-defense instruction affected the verdict, and thus constituted reversible error. Porter presented extensive evidence during her trial that the violence she feared would in fact come to fruition. Research has shown that men who physically abuse their partners are likely to do it again. See, e.g., Kit Kinports, Defending Battered Women’s Self-Defense Claims, 67 Or. L. Rev. 393, 425 n.133 (1988).

Moreover, battered spouse syndrome is defined, in part, by the repetition of the cycle of violence. See Smullen, 380 Md. at 254. Here, Porter and Dr. Dutton both testified to the escalation of violence in the Porters’ marriage. Dr. Blumberg testified that Porter suffered from battered spouse syndrome, which was caused by a cycle of violence that repeated throughout her 28-year-long relationship with Ray. Thus, the State was incorrect in arguing that the “imminent or immediate” requirement supported a rejection of Porter’s imperfect self-defense argument. In a cyclical, abusive relationship, the threatened violence will come to fruition; it is often only a matter of when.

The second justification for requiring defendants to face “imminent or immediate” danger before responding with force – that there are other options until that point – also did not support the State’s argument that Porter was not entitled to an imperfect self-defense instruction. The expert witnesses in this case provided the jury with information as to why Porter did not pursue other avenues of escape. Admitting this testimony but then denying the self-defense instruction because the threat was not “imminent,” i.e., she had time to escape, was illogical and unjust. See V.F. Nourse, Self-Defense and Subjectivity, 68 U. Chi. L. Rev. 1235, 1268, 1280–91 (2001).

Porter presented sufficient evidence that she feared imminent harm to be entitled to an imperfect self-defense jury instruction. The substantive error in the delivered instruction was not harmless and infected the verdict as to each of the charges against her. The judgment of the Court of Special Appeals was accordingly reversed and the case was remanded for a new trial.

COMMENTARY: The State argued that self-defense – perfect or imperfect – is not available to defendants who hire a third party to take action against their abusers. This argument was withou merit. Imperfect self-defense negates the element of malice, not premeditation. Faulkner, 301 Md. at 500–01. A woman claiming imperfect self-defense must present evidence that she feared imminent or immediate danger at the time of the killing; she does not have to show that she acted spontaneously. The means by which a woman takes defensive action against her abuser does not affect whether she actually believed she was in imminent danger at the time of the killing. As such, a woman who recruits help in taking defensive action does not forfeit her right to claim imperfect self-defense by doing so.

DISSENT: Even if a battered spouse has a subjective belief that death or serious bodily harm at the hands of her abuser is inevitable, a murder planned weeks or months in advance can at most be considered a response to a generalized threat or expected future threat, but not a response to an imminent or immediate threat. Furthermore, the events of this case fell squarely into the category of “contract killing,” in which “courts have unanimously refused to permit instructions to the jury on self-defense claims.” John W. Roberts, Between the Heat of Passion and Cold Blood: Battered Woman’s Syndrome As an Excuse for Self-Defense in Non-Confrontational Homicides, 27 LAW & PSYCHOL. REV. 135, 145 (2003). As such, Porter was not entitled to an imperfect self-defense instruction and, therefore, the trial court’s error in issuing an improper imperfect self-defense instruction was harmless.

PRACTICE TIPS: When a defendant accused of murder presents evidence of self-defense, a proper instruction enables the jury to reach one of three verdicts: (1) guilty of murder, if the jury concludes that the defendant did not have a subjective belief that the use of deadly force was necessary; (2) not guilty, if the jury concludes that the defendant had a reasonable subjective belief; and (3) guilty of voluntary manslaughter, if the jury concludes that the defendant honestly believed that the use of force was necessary but that this subjective belief was unreasonable under the circumstances. To prove that the defendant is guilty of murder beyond a reasonable doubt, the State carries the burden of showing that he did not act in perfect or imperfect self-defense.

Evidence

Frye-Reed test

BOTTOM LINE: Because there existed an “analytical gap” between an expert neuropsychologist’s review of a personality assessment inventory of the defendant and the expert’s conclusions about the defendant’s conduct, which were proffered as part of an imperfect self-defense argument, the circuit court properly excluded the expert’s opinion testimony on the basis that the expert’s opinion did not meet the Frye-Reed test.

CASE: Savage v. State of Maryland, No. 82, Sept. Term, 2016 (filed Aug. 4, 2017) (Judges Barbera, GREENE, Adkins, McDonald, Watts, Hotten & Getty).

FACTS: In August 2013, Eddie Savage was charged in the circuit court with murder and related offenses stemming from an assault on Kenneth and Joshua Sparks. Savage pled not guilty. Prior to trial, Savage filed a pre-trial notice of intent to offer the testimony of Dr. William Garmoe, a board-certified neuropsychologist, who would testify regarding the psychological and cognitive effects of Savage’s past brain injury and trauma due to the effects of gunshot wounds he had suffered in 2003.

The State responded by requesting a Frye-Reed hearing to address its concerns regarding the reliability and general acceptance of Garmoe’s methods and his opinion. At the pre-trial Frye-Reed hearing, the defense offered that Dr. Garmoe would specifically testify on the basis of a report that he had prepared following his interview of Savage and the administration of various tests. Dr. Garmoe explained in detail his method for assessing and examining Savage. Dr. Garmoe stated that following his review of Savage’s medical records, he conducted a “neurophysiological battery,” a comprehensive assessment considering intellect, thinking and memory, attention, processing speed, and executive abilities.

With respect to the specific tests he administered, Dr. Garmoe referred the court to the list of tests set forth in his report. Based on his testing and evaluation of Savage, Dr. Garmoe set forth the view that given the residual cognitive and psychological effects of his traumatic brain injury (“TBI”), “under such conditions of chaos and stress,” Savage would be more likely to perceive himself to be facing an imminent threat and have greater difficulty controlling his reactions. Dr. Garmoe’s report continued that Savage viewed the world through an untrusting and suspicious perspective, and often was hyper-vigilant to possible threats.

Dr. Garmoe emphasized that none of the tests or measures that he employed were “novel” or new tests, and were not used “outside of the way in which they would be typically used in the neuropsychological assessment.” He also explained that his examination and testing approach of Savage were consistent with what he and his colleague neuropsychologists would use in performing this type of assessment.” When asked whether his conclusions were accurate to any degree of scientific certainty, Dr. Garmoe stated that he was confident in his assessment.

When the circuit court inquired about the purpose for which Dr. Garmoe’s opinion would be admitted, defense counsel indicated Savage’s theory of self-defense. The circuit court inquired, for clarification, whether Dr. Garmoe’s conclusions were intended to establish a “Not Criminally Responsible”  (“NCR”) defense. Defense counsel told the court, “It’s not an NCR defense.” Defense counsel then elaborated on how the expected testimony would factor in establishing imperfect self-defense.

Following the hearing, the circuit court held that the Frye-Reed standard had not been met, and precluded Dr. Garmoe from offering the disputed opinion as to how someone reacts in a situation of “chaos and stress” at trial. The case went to trial, and, although Dr. Garmoe was permitted to testify, his testimony was constrained by the trial court’s Frye-Reed ruling. During the State’s closing argument, the prosecutor suggested that the testimony of Savage’s friend, Joel Hills, defied “common sense,” thus undermining Savage’s theory of self-defense. Defense counsel objected that these remarks were improper. The trial court overruled the objection.

Savage was convicted of second degree murder, attempted second degree murder and associated offenses. He was sentenced to 30 years of imprisonment for second degree murder conviction, 30 years for attempted second degree murder, and one year for reckless endangerment, to be served consecutively. For sentencing purposes, the convictions for attempted second degree murder and reckless endangerment were merged with his conviction for second degree murder.

The Court of Special Appeals upheld all but one of Savage’s convictions. Savage appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.

LAW: Savage argued that the trial court erred in concluding that Dr. Garmoe’s testimony about the effects of a traumatic brain injury failed to meet the Frye-Reed standard. Savage contested the application of Frye-Reed to an “opinion” in the first place, and urged that, in any event, Frye-Reed should reach only the scientific underlay of an expert’s opinions, and not the conclusions derived from that science. Savage maintained that Dr. Garmoe’s diagnosis, methods and opinions – based in part on the well-respected Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) – were clearly generally accepted within the appropriate behavioral scientific discipline, especially in the valid field of neuropsychology.

The standard enunciated in Frye v. United States and adopted by the Court of Appeals in Reed v. State makes evidence emanating from a novel scientific process inadmissible absent a finding that the process is generally accepted by the relevant scientific community. Clemons v. State, 392 Md. 339, 343-44 (2006). In the present case, it could be assumed that Dr. Garmoe’s “approach” was generally accepted by the relevant scientific community, even if it was “debated,” and that he was competent to render a diagnosis of traumatic brain injury. On the record, however, it could not be concluded that Dr. Garmoe’s ultimate opinion adequately reflected the data and information available to him.

Dr. Garmoe’s ultimate opinions, that “under such conditions of chaos and stress” Savage would be more likely to perceive himself to be facing an imminent threat and have greater difficulty controlling his reactions, and that Savage viewed the world through an untrusting and suspicious perspective, and often was hyper-vigilant to possible threats, were conclusory. Dr. Garmoe did not articulate a connection between the performance data from the testing or explain how Savage’s representations during the interview led to the evaluations of hyper-vigilance to “possible threats,” and an overarching “untrusting and suspicious perspective,” and how these affects emerged “under such conditions of chaos and stress.”

Dr. Garmoe testified at the hearing that his results were based on Savage’s “presentation and interview” along with testing, including Savage’s descriptions about his own functioning, as well as testing, including the results of the Personality Assessment Inventory. Dr. Garmoe recorded Savage’s version of the events of this case, as well as the statement of charges and contrasting stories by the complainants. He also reviewed medical records from 2003, when Savage suffered multiple gunshot wounds to the face. The testing showed difficulties with Savage’s processing speed, decreased flexibility in thinking and “deficits in new learning and recent memory.”

In his report, Dr. Garmoe observed that residual effects of Savage’s traumatic brain injury “fell primarily in the mild range.” He reported that Savage continued “to struggle with depression and anger.” With respect to Savage’s “Current Psychological Status,” however, Dr. Garmoe related that Savage said that his current mood was generally good and his “anger meter” was low, although he acknowledged a tendency to “fly off the handle easily” and was enrolled in anger management classes while incarcerated. Perhaps one of the most important parts of Dr. Garmoe’s report was his review of Savage’s results on the Personality Assessment Inventory (“PAI”) test, in which Dr. Garmoe concluded, in part, that Savage viewed the world “through an untrusting and suspicious perspective,” and was often “hyper-vigilant to possible threats.”

Although his methods in this case appeared to be comprehensive, Dr. Garmoe did not adequately reveal how his ultimate conclusions were derived from the evidence he set forth at the hearing and in his report. No adequate details, for example, were presented with respect to the PAI testing, which appeared to be a major component of Dr. Garmoe’s analysis. By presenting his opinion about Savage, Dr. Garmoe did not reveal any similar analytics in the requisite detail so as to build a connection between his methods and observations, especially in the PAI, and his ultimate conclusion. See Blackwell v. Wyeth, 408 Md. 575, 580 (2009); see also Chesson v. Montgomery Mutual Insurance Co., 434 Md. 346, 380 (2013). The presence of an “analytical gap” between the information available to him and Dr. Garmoe’s ultimate opinion undermined the validity of this evidence, regardless of whether the tests he administered were the appropriate methodology.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: Savage additionally asserted that the Court of Special Appeals erred by upholding the trial court’s denial of Savage’s objection to improper closing argument by the prosecutor. Savage contended that by asserting that the testimony of Joel Hills defied common sense, the prosecutor called into question Savage’s constitutional right to remain silent under the Fifth Amendment. However, because the prosecutor’s focus was primarily on the conflicting testimony of Joel Hills, this argument was without merit. The prosecutor suggested to the jury that Hills was not a credible witness. Secondarily, the prosecutor commented upon Savage’s testimony to the extent that his testimony mirrored that of Hills and should not be believed under the circumstances. As such, there was no error. See Doyle v. Ohio, 426 U.S. 610 (1976).

PRACTICE TIPS: The warnings mandated by Miranda v. Arizona, 384 U.S. 436  (1966), as a prophylactic means of safeguarding Fifth Amendment rights, require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. While parties are generally granted wide latitude during closing argument, counsel’s summation may not abridge a defendant’s constitutional right to remain silent.

Family Law

Marital property 

BOTTOM LINE: Under the Maryland Family Law statute permitting a valid agreement to exclude property acquired during the marriage from marital property, an agreement entered into by a husband and wife during the course of their marriage made manifest by three property deeds by which title was transferred to the wife by her husband was sufficient to exclude those properties from consideration as marital property.

CASE: McGeehan v. McGeehan, No. 93, Sept. Term, 2016 (filed Aug. 10, 2017) (Judges Barbera, Greene, Adkins, McDonald, Watts, Getty & BATTAGLIA (Senior Judge, Specially Assigned)).

FACTS: In October of 2014, Ann and Michael McGeehan separated after an 18-year marriage, during which they had eight children. Two months later, Michael McGeehan filed for divorce in the circuit court. There ensued an acrimonious debate, which culminated in a divorce in December of 2015.

The parties’ dispute involved, among other things, three pieces of real property: (1) property located on Embassy Park Road in Washington, DC (“Embassy Park”), purchased in December of 1998 and titled initially in both names as tenants by the entirety; (2) another property located in Mason Neck, Virginia (“Mason Neck”), purchased in 2000 and titled initially in the husband’s name; and (3) property located on Farside Road in Ellicott City, Maryland (“Farside”), purchased in 2002 and titled as tenants by the entirety. A fourth property located at Log Jump Trail in Ellicott City, Maryland (“Log Jump”), purchased in September 2013 by the McGeehans and titled as tenants by the entirety was also relevant, because proceeds of sales of the Farside and Embassy Park properties were rolled into the Log Jump purchase. Only the Log Jump and Mason Neck properties were owned by the parties at the time of their divorce.

The circuit court found that in 2000, Ann McGeehan learned that Michael had taken $50,000 out of her sole bank account without her knowledge or permission to purchase the Mason Neck property. In 2005, when she received a tax bill from the State of Virginia for over $592,000, she discovered that Michael had been trading her premarital stock account. This discovery triggered a time of crisis for the couple. At that time, Ann made a new will leaving everything to her children and had her family’s estate attorney write up a waiver of the statutory share for her husband to sign.

Having lost trust in husband, Ann demanded that he transfer the parties’ Embassy Park Drive home, Farside home in Ellicott City, and the property in Virginia into her sole name. Michael did so, although he alleged that the transfer was done for estate planning purposes. The parties subsequently continued in their marriage, with Michael in charge of the parties’ finances.

Ann McGeehan testified that the Embassy Park property was sold in 2012 or 2013, and the proceeds from that sale yielded a little more than $400,000. She further testified that Farside was sold in 2014, and the proceeds of Embassy Park and Farside were used to purchase Log Jump. Ann asserted that the 2005 Mason Neck gift deed from Michael McGeehan acted not only to transfer title to Ann but also to remove Mason Neck from consideration as marital property. She asserted that the 2005 deeds from Michael to Ann relating to Embassy Park and Farside made them nonmarital property, such that their subsequent sales and contribution of their proceeds to the purchase of Log Jump rendered any portion of the value of Log Jump nonmarital.

The judge determined that the Mason Neck property retitled in 2005 to Ann McGeehan’s name was marital property. The judge also determined that the Log Jump property, titled as tenants by the entirety upon purchase, was marital property. Ann appealed the circuit court judgment to the Court of Special Appeals, arguing that the circuit court had erred in classifying Mason Neck and, implicitly, Farside as marital property. The Court of Special Appeals affirmed the judgment of the trial court.

Ann McGeehan appealed to the Court of Appeals, which affirmed the judgment of divorce, vacated the property award, and remanded the case to the circuit court.

LAW: On appeal, Ann McGeehan argued that the circuit court erred in classifying Mason Neck and, implicitly, Farside as marital property because there was a “valid agreement” under §8-201(e) of the Family Law Article excluding the two pieces of real property from marital property. Section 8-201(e) of the Family Law Article defines “marital property,” provides that real property titled as tenants by the entirety is marital property, unless excluded by valid agreement, and also allows all other property “excluded by valid agreement” to be excluded from marital property. The statute, however, does not define what constitutes a “valid agreement.”

There are, generally, three different types of agreements that can be entered into in order to effect property disposition between spouses upon divorce: the separation agreement, the antenuptial agreement, and the postnuptial agreement. An antenuptial agreement, also referred to as a premarital or prenuptial agreement, is entered into by prospective spouses prior to marriage and settles in advance alimony or property rights of the parties upon divorce. Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law §14-2. An antenuptial agreement is interpreted according to the objective theory of contracts and subject to traditional contract defenses, such as fraud, duress, coercion, mistake, undue influence, incompetency, or unconscionability at the time the agreement was entered into. Id. §§14-1, 14-2[b].

Unlike other contracts, however, a confidential relationship exists between the parties, as a matter of law in an antenuptial agreement. Id. §14-2(b). To establish the validity of an antenuptial agreement, its proponent must show that there was no “overreaching,” requiring an exploration of “whether in the atmosphere and environment of the confidential relationship there was unfairness or inequity in the result of the agreement or in its procurement. Id. Similar to an antenuptial agreement is a postnuptial agreement, which is a contract between a married couple that sets forth the rights, duties and responsibilities of the parties during and upon termination of the marriage through death or divorce. Id. §14-15.

In the present case, both parties asserted that two decision of the Court of Special Appeals, Falise v. Falise, 63 Md. App. 574 (1985), and Golden v. Golden, 116 Md. App. 190 (1997), needed to be considered to determine what the General Assembly intended in adopting the language of “valid agreement” in §8-201(e)(3)(iii) of the Family Law Article. In Falise, the Court of Special Appeals held that in order to exclude property “by valid agreement” from the reach of a monetary award, the parties must specifically provide that the subject property must be considered “non-marital” or in some other terms specifically exclude the property from the scope of the Marital Property Act.” Falise, 63 Md. App. at 581. In so doing, the Court enmeshed the notion of reclassification of the property as non-marital into its interpretation of the language of valid agreement. Id.

The Falise holding regarding the language of reclassification led to disparate results in interpreting separation agreements. See Carsey v. Carsey, 67 Md. App. 544 (1986). In Golden, the Court of Special Appeals decided merely that the trial court had erred in finding the existence of an premarital oral agreement that essentially iterated “what was hers was hers and what was mine was mine.” Golden, 116 Md. App. at 193. None of the subsequent cases addressing the issue has applied the Falise reclassification requirement to determine the validity of the postnuptial agreement.

Here, the trial judge found that the 2005 agreement between Ann and Michael McGeehan made manifest by the transfer by deed of Embassy Park, Farside, and Mason Neck to Ann was made during the course of their marriage to appease her for the loss of her inherited stock portfolio. With respect to the Mason Neck property, having already classified Log Jump as marital, the trial judge found that the parties intended that the property would be Ann’s. The judge then neutralized that agreement, however, by requiring the Falise reclassification language.

In so doing, the trial court obviated its central finding by requiring that the parties insert the reclassification language of nonmarital as mandated in Falise. The Falise dictates were inapplicable to negate the McGeehans’ postnuptial agreement to transfer Mason Neck and its value to Ann McGeehan. The basis for the trial judge’s finding that the parties’ mutual agreement was that the property would be Ann’s property were the deeds that conveyed the property to the wife as her sole and separate property; the wife’s discovery of her alienated inheritance; the simultaneous execution during the marriage of the deeds for Mason Neck, Farside, and Embassy Park; and the execution of a new will by Ann McGeehan excluding Michael and Michael’s waiver of his statutory share.

The judge’s finding of validity of the agreement was supported in the record and in jurisprudence addressing validity of postnuptial agreements. The same conclusion could be drawn regarding the Farside and Embassy Park deeds executed contemporaneously with Mason Neck. As a result, there was a valid postnuptial agreement to exclude Mason Neck as the nonmarital property of Ann McGeehan.

Accordingly, the judgment of absolute divorce was affirmed; the judgment granting the monetary award was vacated; and the case was remanded to the circuit court.

COMMENTARY: With respect to Log Jump, it would be necessary for the trial judge, on remand, to initially consider whether there was a valid agreement to exclude Log Jump as nonmarital under §8-201(e)(2) of the Family Law Article. Absent such an agreement, the judge would then need to consider whether the source of funds for the purchase of Log Jump, based upon the testimony elicited that the proceeds of the sale of Farside and Embassy Park, which were transferred in 2005 to Ann McGeehan, was traceable thereby to her contribution under Section 8-205(b)(8)–(9) of the Family Law Article.

PRACTICE TIPS: A spouse’s potential future interest in receiving a marital award for marital property, which is contingent upon a divorce and the decisions of a trial court, is akin to the expectancy interest of a potential beneficiary in a will, which is contingent upon whether the testator decides to include that individual in his will and under what terms. Maryland law has long recognized that the contractual conveyance of such future expectancy interests may be valid and enforceable.

Real Property

Liens 

BOTTOM LINE: A declaration recorded by a developer in the county land records, which created a contractual obligation on the part of future homeowners to pay an annual assessment to finance the developer’s construction of water and sewer infrastructure and gave notice of a lien for the homeowner’s failure to fulfill that obligation, did not itself create an enforceable lien where the declaration did not comply with the procedures of the Maryland Contract Lien Act, which provides a process for creating a lien on real property based on a contractual obligation that has priority over other liens as of the date a statement of lien is recorded in the land records.

CASE: Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Company, LLC, No. 71, Sept. Term, 2016 (filed Aug. 16, 2017) (Judges Barbera, Greene, Adkins, MCDONALD, Watts, Hotten & Getty).

FACTS: The Washington Suburban Sanitary Commission (“WSSC”), a bi-county state agency, was established by State law to construct and operate water supply, sewerage, and storm water management systems in the Washington Suburban Sanitary District. In 1998, by statute, the burden of constructing and paying for new water and sewer facilities in a private development to connect to the WSSC system was shifted from the WSSC to the developer, although the WSSC remained responsible for overseeing that construction and operating the system. In 1999, a developer, Saddlebrook West, LLC, entered into an agreement with the WSSC to assume responsibility for the construction of water and sewer facilities for a development in part of the Sanitary District located in Prince George’s County.

Saddlebrook planned to develop a residential subdivision known as Saddlebrook West (“the Subdivision”) in a portion of Prince George’s County located within the Sanitary District. Saddlebrook planned ultimately to develop a total of 330 lots. The first phase of the Subdivision consisted of 187 lots on which single-family homes would be built. As part of Saddlebrook’s development plan, a related entity, Saddlebrook West Utility, LLC (“Utility”), would undertake the construction to connect the lots in the Subdivision to water and sewer service provided by the WSSC. Responsibility for maintenance of the infrastructure in the future would be shared by the WSSC and the individual lot owners.

On Feb. 4, 2000, Saddlebrook purchased the land on which the project was to be built. Saddlebrook subsequently filed in the land records of Prince George’s County an instrument titled a Declaration, which provided for payments of an annual assessment by future homeowners to a related entity, Saddlebrook West Utility, LLC (“Utility”). The Declaration, which provided for the granting of a lien by future homeowners to Utility to secure the payment of the annual assessment, purported to give priority to that lien at a date before the development was constructed or any homeowner had granted a lien under the terms of the Declaration.

Some years later, on Oct. 7, 2010, Utility commenced a foreclosure proceeding in the circuit court against property located at 8201 River Park Road (“the Property”), owned by Sherrylyn Mitchell, relating to unpaid water and sewer charges based on the Declaration. On March 5, 2012, Select Portfolio Servicing, Inc., the holder of deed of trust that arose out of the financing of the Property, together with Long Beach Mortgage Company and Chase Bank, N.A. (collectively, “the Lender”), filed a motion to stay and dismiss the foreclosure proceeding. That same day, the Lender filed the declaratory judgment action, alleging, among other things, that the Declaration did not itself create a lien that gave Utility a priority over the Deed of Trust. It stated that, if the Declaration did create a lien, Utility would have had to pay approximately $60,000 in recordation and transfer taxes at the time it was filed and would not have had to record the Statements of Lien under the Maryland Contract Lien Act.

Following a bench trial, the circuit court concluded that the Declaration was a valid, enforceable first-priority lien encumbering the Property. The Lender appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court. The Lender then appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals and remanded the case.

LAW: The Lender first argued that a lien could not be created on the Property by the Declaration without following the procedures of the Maryland Contract Lien Act, Maryland Code, Real Property Article (“RP”), §14-201 et seq., which addresses the creation and enforcement of a lien on real property arising from a breach of contract. Pursuant to the statute, a lien may be created and enforced only if: (1) the contract expressly provides for the creation of a lien; and (2) the contract expressly describes the party in whose favor the lien is created and the property against which the lien is imposed. RP §14-202(a). The lien is to secure only damages, the cost of collection, late charges, and attorney’s fees provided for in a contract or awarded by a court. RP §14-202(b).

To establish a lien, the party seeking to create the lien must, within two years of a breach of the contract, give written notice to the party whose property is to be subject to the lien and include certain information specified in the statute. RP §14-203(a)-(b). Within 30 days after receiving the notice, the property owner may file a complaint in the circuit court contesting the establishment of the lien and requesting a hearing. RP §14-203(c). In that proceeding, the party seeking to impose the lien has the burden of proof. RP §14-203(d). The statute provides additional procedures for the imposition of a lien based on a showing of probable cause pending trial, removal of the lien upon the filing of bond by the property owner, and a trial to determine any issues relevant to establishing or denying a lien. RP §14-203(g) – (k).

With respect to enforcement of the lien, the statute provides that the lien may be foreclosed by the party who obtained the lien “in the same manner, and subject to the same requirements,” as the foreclosure of mortgages and deeds of trust on property containing a power of sale or an assent to a decree. RP §14-204(a). The statute preserves the right of the lienholder to bring suit for any deficiency against a person personally liable for the damages. RP §14-204(b). Currently, the statute requires that any foreclosure action be brought within 12 years of the recording of the lien. RP §14-204(c). The statute explicitly excludes land installment contracts, deeds of trust, and mortgages from its purview. RP §14-205.

As noted, the Declaration itself asserted that it established a lien on each lot, granted at the time a homeowner accepts a deed on the lot, but with priority dating from the earlier recordation of the Declaration. However, the mere fact that a document says something is so does not make it so. The Circuit Court and Court of Special Appeals both concluded that the Declaration created a covenant running with the land, and the Lender did not appear to contest that issue. As such, the Declaration fit the definition of “contract” under the Maryland Contract Lien Act, and the establishment and enforcement of a lien for nonpayment of the water and sewer infrastructure assessment under the Act was appropriate.

It did not necessarily follow, however, that the Declaration by itself established an enforceable lien. The Declaration itself was not a statement of lien and, unless Utility followed the procedures set forth in RP §14-203, it did not have a lien under the Act for unpaid assessments. A lien to secure the payment of delinquent water and sewer charges owed under the Declaration could only be established and enforced under the provisions of the Maryland Contract Lien Act.

Without following these procedures, the Declaration did not itself create an enforceable lien. Therefore, to the extent that the language of the Declaration attempted to establish priority for a lien that did not exist, it could not be given effect. Simply stated, the Declaration was recorded before anyone had a duty to pay an assessment.

Accordingly, the judgment of the Court of Special Appeals was reversed, and the case was remanded to that court with instructions to remand to the circuit court with instructions to vacate the declaratory judgment previously entered and to enter a new declaratory judgment to this effect.

COMMENTARY: Saddlebrook and Utility also asserted that the Declaration created a lien itself under the common law, regardless of whether it did so pursuant to the Maryland Contract Lien Act. However, they identified no authority for a common law right to create such a lien that is not a deed of trust, mortgage, or land installment contract. Saddlebrook and Utility additionally attempted to find a basis for the creation of a lien by the Declaration in the definitions in the foreclosure rules adopted by the Court of Appeals and codified in Title 14 of the Maryland Rules. See Maryland Rules 14-201 et seq.  However, the adoption of rules of procedure is not an occasion for the creation of substantive law concerning interests in real property and, even if it were, the rules in question govern the procedures for foreclosure of a lien, not the creation of the lien.

The Declaration fit quite comfortably into the definition of “lien instrument” under the Maryland Contract Lien Act. A statement of lien obtained under the procedures of the Act, such as those that Utility twice obtained against the property in this case, is a “lien” under the rule as “a lien upon property” “authorized to be created by a lien instrument” – i.e., the Declaration. Nothing in the rule purported to authorize a document like the Declaration to create a lien independent of the substantive law.

PRACTICE TIPS: Under the Tax-Property Article, a recordation tax is imposed on any instrument recorded in the land records based on the principal amount of the lien at the time of recordation. Non-payment of those taxes does not invalidate a properly created lien, but does serve as evidence that the developer itself did not perceive the recording as creating a lien.

Civil Procedure

Intervention 

BOTTOM LINE:  Medical cannabis growers who had been granted pre-approvals for medical cannabis grower licenses were entitled to intervention as of right in an action filed by a business that applied for but did not receive pre-approval for a medical cannabis grower license and  which sought to challenge the process of pre-approving and licensing medical cannabis growers, because the growers had vested and protectable interests that were not adequately protected by any other party in the action.

CASE: John and Jane Doe v. Alternative Medicine Maryland, LLC, No. 98, Sept. Term, 2016 (filed Aug. 25, 2017) (Judges Barbera, Greene, Adkins, McDonald, WATTS, Hotten, Getty & Wilner (Senior Judge, Specially Assigned)).

FACTS: The process of pre-approving and licensing medical cannabis growers in Maryland is governed by Md. Code Ann., Health Gen. (1982, 2015 Repl. Vol.) (“HG”) §13-3301 et seq. In 2013, the General Assembly authorized the Natalie M. LaPrade Medical Cannabis Commission to be responsible for pre-approving and licensing medical cannabis growers in Maryland. The General Assembly directed that the Commission would be independent, but would function within the Department of Health and Mental Hygiene.

In October 2016, Alternative Medicine Maryland, LLC (“AMM”), a business that applied for, but did not receive pre-approval for, a medical cannabis grower license, filed suit in the circuit court against the Commission and its members and the Department. In its complaint for declaratory judgment and preliminary and permanent injunctive relief, AMM contended that, during the pre-approval process, the Commission failed to follow applicable law with respect to the requirement to consider racial and ethnic diversity, and requested that the Commission be prohibited from issuing final approvals for the first group of medical cannabis grower licensees until the Commission took corrective action, consisting of actively seeking racial and ethnic diversity among medical cannabis grower licensees and conducting a study on the existence of discrimination with respect to the medical cannabis statutes. Essentially, AMM requested that the Commission be required to reconduct the pre-approval process.

Medical cannabis growers that had received pre-approvals for medical cannabis grower licenses (“the Growers”), a coalition and trade association that advocate for the use of medical cannabis (“the Trade Association”), and patients who would potentially receive medical cannabis as treatment for illnesses (“the Patients”), filed a motion to intervene in the action. These non-parties also filed a motion to dismiss, contending, among other things, that the doctrine of laches barred AMM’s claims. Following a hearing, the circuit court denied the motions to intervene and the motion to dismiss.

On May 15, 2017, AMM filed a motion seeking a temporary restraining order and a preliminary injunction preventing the Commission from issuing final approvals for medical cannabis grower licenses and from conducting inspections of the 15 businesses whose applications for medical cannabis grower licenses were pre-approved. Following a hearing, the circuit court issued a temporary restraining order. Meanwhile, most of the Growers and Patients who had previously sought to intervene filed renewed motions to intervene, which the circuit court denied. The Growers, the Trade Assocation, and the Patients then appealed to the Court of Special Appeals.

While the case was pending in the Court of Special Appeals, most of these same Growers, Patients, and the Trade Association appealed to the Court of Appeals and filed a motion to stay the proceedings in the circuit court. The Court of Appeals granted the motion to stay. Subsequently, the Court of Appeals reversed the circuit court’s judgment with respect to its denial of intervention of the Growers and remanded the case to the circuit court with instructions to grant intervention as of right to the Growers. The Court of Appeals affirmed the circuit court judgment with respect to its denial of intervention of the Trade Association and  the Patients. In addition, the Court of Appeals remanded the case to the circuit court for further proceedings including determination of the issue of laches and lifted the previously-issued stay.

LAW: The Growers who sought to intervene in AMM’s action contended that the circuit court erred in denying their motion to intervene and the renewed motion to intervene. They argued that they were compelled by regulation to spend millions of dollars in order to be awarded pre-approvals for cannabis licenses. For this reason, they asserted, they had vested and protectable interests that were not adequately protected by any other party in the action.

Maryland Rule 2-214(a), which governs intervention as of right, states that a person shall be permitted to intervene in an action upon a timely motion when the person has an unconditional right to intervene as a matter of law, or when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties. Thus, Maryland Rule 2-214(a)(2) actually contains four requirements for intervention as of right: (1) the motion to intervene is timely; (2) the person claims an interest relating to the property or transaction that is the subject of the action; (3) the person is so situated that the disposition of the action, as a practical matter, may impair or impede that person’s ability to protect that interest; and (4) the person’s interest must  is not adequately represented by existing parties to the suit. suit. Md.-Nat’l Capital Park & Planning Comm’n v. Town of Washington Grove, 408 Md. 37, 69-70 (2009).

As to the first requirement, timeliness, whether a motion to intervene is timely depends on the purpose for which intervention is sought, the probability of prejudice to the parties already in the case, the extent to which the proceedings have progressed when the movant moves to intervene, and the reason or reasons for the delay in seeking intervention. Id. at 70. To satisfy the second and third requirements, the person seeking to intervene must show that it has “an interest for the protection of which intervention is essential and which is not otherwise protected.” Id. at 75. An interest satisfies the second and third requirements where the person seeking to intervene may be bound by a judgment in the case. See id. at 75. The interest of the person seeking to intervene must be such that the person has standing to be a party – i.e., the outcome of the lawsuit might cause the person to suffer some kind of special damage differing in character and kind from that suffered by the general public. Duckworth v. Deane, 393 Md. 524, 540 (2006).

The fourth requirement, inadequate representation by the parties, necessitates a comparison of the interest asserted by the person seeking to intervene with that of each existing party. Washington Grove, 408 Md. at 102. The “interest-analysis” test is used for determining whether the lack of adequate representation requirement has been met. Id. at 102. This cascading test holds that: (1) if the proposed intervenor’s interest is not represented or advocated to any degree by an existing party, or if the existing parties all have interests which are adverse to those of the proposed intervenor, the intervenor should be permitted to intervene; (2) if the proposed intervenor’s interest is similar, but not identical, to that of an existing party, a discriminating judgment is required on the circumstances of the particular case, but the proposed intervenor ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee; (3) if the interest of an existing party and the proposed intervenor are identical, or if an existing party is charged by law with representing the proposed intervenor’s interest, a compelling showing should be required to demonstrate why this representation is not adequate. Id. at 102-03.

Here, the AMM did not argue that the Growers’ motion to intervene was untimely. Neither did the AMM allege any prejudicial delay. As such, the motion to intervene was timely filed, satisfying the first element of intervention as a matter of right, timeliness.

The second and third requirements necessary for intervention as of right, a claim of an interest and impairment or impediment to the ability to protect that interest, were also fully satisfied. The Growers averred that, after receiving pre-approvals for medical cannabis grower licenses, the Growers had expended significant amounts of money to prepare to meet the State’s regulatory deadline, had contracted for facilities, hired employees, and taken other actions in reliance on their status as pre-approval awardees. After receiving pre-approvals for medical cannabis grower licenses, the Growers had one year in which to become operational or their pre-approvals would become subject to rescission. See COMAR 10.62.08.06E.

Thus, the Growers plainly had an interest that intervention was necessary to protect. As required by relevant case law, the Growers demonstrated that intervention was essential to protect their status as pre-approval awardees and, in one instance, a medical cannabis grower licensee. It was clear that the Growers might be disadvantaged by the outcome of this case.

Finally, the Growers easily satisfied the fourth factor, inadequate representation. As competitors in the medical cannabis growing industry, the Growers and AMM obviously had interests that were adverse to each other. In addition, the Growers’ interest was in making sure that they maintained their pre-approval status and received medical cannabis grower licenses, while the Commission’s interest was in assuring that the selection process comported with applicable law. The Growers had an interest in achieving the outcome in which they were the recipients of medical cannabis grower licenses as opposed to other growers; the Commission did not share this interest. Under the “interest-analysis” test, the Growers showed that their interest was not fully represented or advocated by either AMM or the Commission.

In sum, the Growers were entitled to intervention as of right because the four requirements for intervention as of right under Maryland Rule 2-214(a)(2) were satisfied. The circuit court abused its discretion in denying the Growers intervention as of right, and also in denying them permissive intervention. The circuit court did not err or abuse its discretion in denying intervention as of right or permissive intervention as to the Patients and the Trade Association non-parties.

Accordingly, the judgment of the circuit court was reversed with respect to the denial of intervention of the Growers and the case was remanded the case to the circuit court with instructions to grant intervention as of right to the Growers; the circuit court judgment was affirmed with respect to the denial of intervention of the Trade Association and the Patients; and the case was remanded the case to the circuit court for further proceedings including determination of the issue of laches.

COMMENTARY: In contrast to its holding with respect to the Growers, the circuit court properly denied intervention as of right and permissive intervention as to the Patients and the Trade Association. The Patients argued that they were the people for whom the medical cannabis statute was passed, and thus had an interest in the action. The interest claimed by the Trade Association was that they advocated for prompt access to medical cannabis, patient rights, and the interests of the Growers. While these non-parties might be said to have an overall interest in having the medical cannabis industry becoming operational without undue delay, it could not be said with any degree of certainty that the outcome of this lawsuit might cause them to incur any kind of special damage differing from that suffered by the general public. See Duckworth v. Deane, 393 Md. 524, 540 (2006).

As such, the generalized and theoretical interests claimed by the Trade Association and Patients were not adequate to satisfy the second requirement for intervention as of right under Maryland Rule 2-214(a)(2), namely, that “the person claims an interest relating to the property or transaction that is the subject of the action.” Washington Grove, 408 Md. at 69, 968. The Patients and the Trade Association also did not fulfill the third requirement for intervention as of right under Maryland Rule 2-214(a)(2) because the Patients and the Trade Association were not so situated that the disposition of the action, as a practical matter, may impair or impede their ability to protect that interest. Washington Grove, 408 Md. at 69. In addition, the circuit court did not abuse its discretion in denying permissive intervention to the Patients and the Trade Association.

PRACTICE TIPS: Laches is one of the affirmative defenses recognized and expressly listed in the Maryland Rules. Although ordinarily the doctrine of laches must be pled as an affirmative defense, a court may, on its own initiative, invoke the doctrine of laches where appropriate.