U.S. Court of Appeals for the 4^th Circuit

Constitutional; privileges and immunities clause: Where a Prince George’s county statute barred nonresidents who are not employed by the county from purchasing tax-delinquent properties at the county’s limited auction, and the restriction was not closely related to the advancement of a substantial county interest, it violated the privileges and immunities clause and was struck down. Brusznicki v. Prince George’s County, No. 21-1621 (filed Aug. 2, 2022).

Securities; Joint-and-several disgorgement liability: Although a company officer claimed it was wrong to hold him jointly-and-severally liable with his company for disgorgement of $681,554 because he only personally received $156,963 from the fraudulent scheme, his argument was rejected. The Supreme Court has not prohibited joint-and-several liability in this context, and the disgorgement order was warranted here because of the company’s conduct in the scheme and the officer’s control of the company. U.S. Securities and Exchange Commission v. Johnson, No. 21-1711 (filed Aug. 4, 2022).

Maryland Court of Appeals

Municipal; final agency action: Where the Town of Upper Marlboro challenged a decision of the Prince George’s County Council to remove two schoolhouses from the county’s list of historically protected sites, the challenge failed because the county satisfied the requirements of the Prince George’s County Code. The Town of Upper Marlboro v. The Prince George’s County Council, No. 55, Sept. Term, 2021 (filed Aug. 1, 2022).

Maryland Court of Special Appeals

Negligence; negligent infliction of emotional distress: Where parents heard the defendant’s truck crash into their house, just below the room of their sleeping children, a jury will decide if they can recover for negligent infliction of emotional distress. Bogert v. Thompson, No. 1171, Sept. Term, 2021 (filed July 28, 2022).

Constitutional; handgun carry permits: Where Maryland requires an applicant to demonstrate “good and substantial reason” for carrying a handgun, but the Supreme Court struck down a similar requirement under NY law, the Maryland law was struck down as unconstitutional. In the Matter of William Rounds, No. 1533, Sept. Term, 2021 (filed July 27, 2022.

Contract; wills and codicils: Where a son challenged a codicil executed by his late mother that revoked her bequest of a life estate in her real property to him, but the statutory requirements for the codicil were satisfied and there was insufficient proof the mother lacked “the necessary mental capacity,” his challenge failed. In The Estate of Theresa Ruth Steiner, No. 757, Sept. Term, 2021 (filed July 28, 2022).  

Criminal; ineffective assistance of counsel: Although the defendant was ordered to not speak with his counsel during the overnight recess, and a Supreme Court decision holds that instruction is improper, his ineffective assistance of counsel claim failed because there was no showing that the instruction actually prevented the defendant and defense counsel from communicating. State v. Clark, No. 1614, Sept. Term, 2021 (filed July 28, 2022).

Medical malpractice; intervening and superseding causes: Where the testimony suggested there could have been intervening and superseding causes for the death of the decedent, the trial court did not err in giving these instructions to the jury. Handy v. Box Hill Surgery Center LLC, No. 0973, Sept. Term, 2021 (filed July 27, 2022).

Tort; duty of agent: Where the trial court denied an owner’s complaint against his former horse trainer for breach of contract and breach of fiduciary duty, and failed to address the fraud count, those were reversible errors. Braude v. Robb, No. 675, Sept. Term, 2021 (filed July 29, 2022).

Zoning; extrinsic evidence: Where a homeowner argued a deed was ambiguous and that the court should rely on extrinsic evidence to interpret it, but the deed’s terms unambiguously conveyed the disputed property to the state in fee simple absolute, no extrinsic evidence was necessary. Wilkinson v. Board of County Commissioners of St. Mary’s County, No. 0478, Sept. Term, 2020 (filed July 28, 2022).

U.S. Court of Appeals for the 4^th Circuit

Constitutional

Privileges and immunities clause

BOTTOM LINE: Where a Prince George’s county statute barred nonresidents who are not employed by the county from purchasing tax-delinquent properties at the county’s limited auction, and the restriction was not closely related to the advancement of a substantial county interest, it violated the Privileges and Immunities Clause and was struck down.

CASE: Brusznicki v. Prince George’s County, No. 21-1621 (filed Aug. 2, 2022) (Judges Agee, Richardson, FLOYD).

FACTS: Plaintiffs attend government auctions where they bid on tax-delinquent properties. A Maryland statute directs Prince George’s county to offer defaulted properties to a select class of people (comprising largely those living and holding government positions there) before listing the properties for regular public auction.

The district court held the privileges and immunities clause “clear[ly]” applied because the statute curtailed “the ability of nonresidents to engage in the fundamental right of acquiring property within the state.” But it also recognized a “compelling” county interest in “community-revitalization.” It thus accepted that certain protectionist measures may be appropriate in principle, so long as “the discrimination practiced against nonresidents bears a substantially close relationship to the reason proffered by the State.”

But the two provisions permitting veterans and federal employees to bid in the auction no matter where they live or work troubled the district court. So the court severed those two provisions, but otherwise left the statute intact.

LAW: Ten days after the district court issued its judgment, Maryland reinserted the veteran and federal-employee provisions, albeit capping them only to veterans and federal employees who work in the county. It also narrowed the scope of the limited auction to vacant and uninhabitable properties. The attorney general claims that these amendments have mooted plaintiffs’ claims. The court disagrees.

While plaintiffs now stand on the same footing as county residents with respect to well-maintained properties, they remain disadvantaged when it comes to vacant, uninhabitable ones. As for the veteran and federal-employee amendment, it truncated plaintiffs’ rights further rather than expand them. If previously, Maryland only prohibited one of the plaintiffs (the honorably discharged veteran living in Illinois) from transferring the lien certificates, it now prevents him from participating at all.

The attorney general also urges that, conceptually, there can be “no live controversy” where plaintiffs mount “an as applied challenge to the superseded law.” But plaintiffs challenge the statute on its face, not as applied. Perhaps even more importantly, the district court offered a facial remedy, striking the federal-employee and veteran provisions from the statute. In short, a live controversy remains.

Turning to the merits, a two-step inquiry determines when a residency classification offends Privileges and Immunities protections. At the threshold, “the activity in question must be sufficiently basic to the livelihood of the Nation.” But even if it is, courts “will invalidate it only if [they] conclude that the restriction is not closely related to the advancement of a substantial state [or county] interest.”

Here, the statute bars nonresidents who are not employed by the county from purchasing property at the county’s limited auction. That bar is categorical, direct and absolute. Maryland even prohibits assignment of the lien certificates on the back end. Even the most generous understanding of the privileges and immunities clause thus compels the conclusion that the statute abridges a fundamental right.

At step two, the attorney general argues the county has a compelling goal in refurbishing the neighborhoods, promoting homeownership and reducing blight. Even assuming those constitute appropriate state goals, meeting them does not require excluding nonresidents. Moreover the text of the statute itself belies any claims of a substantial relationship between community revitalization and exclusion of nonresidents.

In the alternative, the attorney general contends that lien-certificate sales implicate uniquely governmental activity comparable to a state purchasing goods or services— activities, he claims, courts have exempted from Privileges and Immunities’ reach. The court disagrees.

Because the district court granted a consent motion specifying that liens that have already been purchased will not be voided if § 14-817(d) is enjoined, the injunction should apply “prospectively to future auctions” only.

Plaintiffs ask the court to hold the already-purchased liens transferrable, arguing that the anti-alienation provision in § 14-821(b) should be declared unconstitutional. The court instead holds that without the limited-auction provision, the anti-alienation clause can do no work, for it applies only to “certificate[s] of sale issued to a purchaser at a limited auction under § 14–817(d).”

Because the provisions are non-severable, the court reverses the district court, holds that § 14-817(d) violates the privileges and immunities clause and that § 14-821(b) cannot be severed from it and remands with instructions to enter summary judgment in plaintiffs’ favor, enjoining defendants from conducting limited auctions under § 14-817(d) going forward and allowing the transfer of the already-purchased liens.

Reversed and remanded with instructions.

Securities

Joint-and-several disgorgement liability

BOTTOM LINE: Although a company officer claimed it was wrong to hold him jointly-and-severally liable with his company for disgorgement of $681,554 because he only personally received $156,963 from the fraudulent scheme, his argument was rejected. The Supreme Court has not prohibited joint-and-several liability in this context, and the disgorgement order was warranted here because of the company’s conduct in the scheme and the officer’s control of the company.

CASE: U.S. Securities and Exchange Commission v. Johnson, No. 21-1711 (filed Aug. 4, 2022) (Judges Niemeyer, DIAZ, Floyd).

FACTS: Mark Johnson challenges the district court’s disgorgement order against him and Owings Group LLC, the entity he founded and controlled. Together, Johnson, Owings, and three codefendants perpetrated a fraudulent scheme in violation of federal securities laws. The district court ordered Johnson to disgorge $681,554, and imposed a monetary penalty in the same amount. Johnson argues that the disgorgement order violates Liu v. SEC, 140 S. Ct. 1936 (2020), and that the district court erroneously premised the associated monetary penalty on joint-and-several liability.

LAW: Johnson argues that the district court erred in finding him jointly and severally liable for disgorgement with Owings because he personally received only $156,963 from the fraudulent scheme. Johnson posits that his case presents “an ideal opportunity to rule on [1] whether, and [2] to what extent, a control person defendant in an SEC enforcement action may be found jointly and severally liable for disgorgement with the entity he controls.”

But the Liu court answered Johnson’s first question. Had the court wanted to prohibit joint-and-several disgorgement, it could have. Instead, the court only set limits on collective liability. And it remanded the case to the lower court to determine whether the defendants were “partners in wrongdoing.”

Turning to Johnson’s second question, given Johnson’s control of Owings and Owings’s conduct in the scheme, the district court’s joint-and-several disgorgement order was warranted. Johnson and Owings were “partners engaged in concerted wrongdoing.” Owings created false impressions about the investment program’s success; assured investors of a return with no factual basis and helped create shell companies to mollify—and mislead—investors. Owings also promoted the program at investor conferences, falsely represented how investor proceeds would be used and supplied prospective investors with agreements to participate in the program.

Johnson’s control of Owings was no passive thing. Johnson founded the company and served as its Chief Executive Manager and controlling member. In short, Owings’s conduct in the scheme generated its ill-gotten gains—and Johnson controlled that conduct.

Johnson next asserts the SEC didn’t allege that his funds were commingled with Owings’s—and that the lack of such evidence renders joint-and- several disgorgement unjust. Rather, his “net profits were no more than four percent of the total [] investor funds.” So, contends Johnson, requiring him to disgorge Owings’s ill-gotten gains (along with his own) transforms an equitable remedy into a penalty. The court disagrees.

When Liu discussed commingling funds, it did so in the context of two individuals—a married couple. But the court’s analysis says little about whether disgorgement is appropriate when the wrongdoers are an entity and a control person. For one thing, there’s no way for an entity to actively receive the scheme’s profits or enjoy the scheme’s fruits except through its control person.

The SEC sought a penalty of $3.1 million, the scheme’s total investor proceeds, while Johnson sought either no penalty or $156,963, his personal gain. The district court found both recommendations off-base and instead imposed a penalty of $681,554, which mirrored the disgorgement amount.

Johnson contends that the district court impermissibly premised the civil penalty on joint-and-several liability, as it did for disgorgement. But Johnson misconstrues the district court’s order. In fact, as Johnson concedes, the court didn’t “expressly order[] a ‘joint-and-several’ penalty.” It ordered a penalty equal to Johnson’s disgorgement, which happened to be joint and several. This is a distinction with a difference.

Last, Johnson contends he provided uncontroverted information about his dire financial straits. But, says Johnson, the court didn’t discuss that information before imposing an “unduly punitive” penalty. The court finds no abuse of discretion. Though the district court didn’t explicitly discuss Johnson’s financial situation, it’s clear that the court considered it, along with the remaining factors. The court understood that all the defendants were insolvent but decided that Johnson’s substantially more serious role in the scheme warranted a penalty all the same.

Affirmed.

Maryland Court of Appeals

Municipal

Final agency action

BOTTOM LINE: Where the Town of Upper Marlboro challenged a decision of the Prince George’s County Council to remove two schoolhouses from the county’s list of historically protected sites, the challenge failed because the county satisfied the requirements of the Prince George’s County Code.

CASE: The Town of Upper Marlboro v. The Prince George’s County Council, No. 55, Sept. Term, 2021 (filed Aug. 1, 2022) (Judges Fader, Watts, HOTTEN, Booth, Biran, Eaves, Adkins).

FACTS: Pursuant to the procedures outlined in the Prince George’s County Code, on July 23, 2019, the council passed an initiating resolution, CR-72-2019, that directed the planning board to initiate the process for considering whether to adopt a minor amendment that would remove the two schoolhouses from the county’s list of historically protected sites.

A joint public hearing was held on the proposed minor amendment, during which representatives of the Town of Upper Marlboro argued against its adoption. The town, however, did not seek judicial review of CR-72-2019 itself. The council ultimately adopted the minor amendment through a subsequent resolution, CR-98-2019, on Nov. 19, 2019.

Within 30 days, the town filed a petition for judicial review of CR-98-2019. The circuit court circuit court ruled against the town, finding that the adoption of CR-72-2019 and CR-98-2019 was not arbitrary and capricious, and was supported by substantial evidence in the record.

The Court of Special Appeals found that the town forfeited its right to directly challenge CR-72-2019 because the town failed to directly appeal within 30 days of the passage of the resolution. The court declined to reach the merits of whether CR-98-2019 was procedurally deficient because the challenge to CR-98-2019 was “based exclusively on alleged deficiencies with CR-72-2019.” The court concluded that the town cannot circumvent the 30-day appeal window by bringing “an appeal of CR-72-2019 through CR-98-2019.”

LAW: The court holds that CR-72-2019 was not a final agency action subject to judicial review. The title of CR-72-2019 as an initiating resolution provides the first indication that there was more work for the council to do before enacting the minor amendment.

The district council and planning board took further action by holding additional public work-sessions on the testimony from the joint public hearing and recommendations regarding the minor amendment. The decision to adopt the minor amendment was expressly left for subsequent council action, subject to community input and public response.

The council could have decided, after the joint public hearing and public work-sessions, not to adopt the minor amendment. Requiring the town to appeal CR-72-2019 before the town knew whether it would be satisfied with the ultimate decision of the council risks unnecessary litigation. Furthermore, permitting judicial review of an initiating resolution such as CR-72-2019 would require the courts to insert themselves into the administrative process before it has a chance to fully develop.

Assuming, for the sake of argument only, that CR-72-2019 and CR-98-2019 were administratively distinct actions, the court would still hold that CR-72-2019 was not a final agency action subject to judicial review. A determination that certain agency actions are administratively distinct does not mean, as a matter of law, that they are final for the purpose of review.

Unlike CR-72-2019, however, CR-98-2019 was a judicially reviewable final agency action. As such, the town correctly asserted its judicial challenge to the resolution’s passage within 30 days. Accordingly, the town could challenge the adoption of the minor amendment in CR-98-2019 by alleging deficiencies in CR-72-2019.

Turning to the merits, the court must determine whether the council acted in a legislative or quasi-judicial capacity when enacting CR-72-2019. If the council acted in a legislative capacity, review is limited as to whether the council acted within its legal boundaries. Conversely, if the council acted in a quasi-judicial capacity, the court applies the substantial evidence test to determine whether a reasoning mind would reach the decision of the council based on facts in the record.

The town conceded at oral argument that the council was acting in its legislative capacity when adopting the minor amendment. The court’s review is therefore limited to determining whether the council acted within its legal boundaries when it adopted CR-72-2019. The court finds that CR-72-2019 adequately “set forth the purpose” of the minor amendment as required by law.

Although the town argues that the county code demands particular factual detail regarding the “purpose” of a proposed minor amendment, the court disagrees. The county code did not require CR-72-2019 to specify either why the council sought to remove the historic designation of the two schoolhouses, or how the schoolhouses would be utilized in the future. Even if it did, CR-72-2019’s statement that the minor amendment concerned only the historic designation status of the two schools would be sufficient to demonstrate that the scope of the minor amendment was appropriately limited.

Judgment of the Court of Special Appeals affirmed on alternative grounds.

Maryland Court of Special Appeals

Negligence

Negligent infliction of emotional distress

BOTTOM LINE: Where parents heard the defendant’s truck crash into their house, just below the room of their sleeping children, a jury will decide if they can recover for negligent infliction of emotional distress.

CASE: Bogert v. Thompson, No. 1171, Sept. Term, 2021 (filed July 28, 2022) (Judges Kehoe, Nazarian, SALMON).

FACTS: In the early morning hours of Sept. 22, 2019, Thomas A. Thompson Jr. crashed his truck into the house where the appellants resided. None of the appellants were struck by the truck, but they claim that the crash caused them emotional injuries.

Ordinarily, a plaintiff “cannot recover for emotional injury caused by witnessing or learning of negligently inflicted injury to the plaintiff’s property.” There are two exceptions to this rule. One exception is that there may be recovery in cases involving property damage caused by fraud, malice or like motives.

A second exception is known as the personal safety exception, which provides that there may be recovery when the defendant’s negligence causes property damage that results in emotional injuries that are due to the plaintiff’s reasonable fear of safety for himself/herself or for members of his or her family. The issue is whether the personal safety exception is applicable here

LAW: Appellee claims that “[u]pon being awakened by the incident the [a]ppellants knew they were not in danger.” It is clear that when appellee uses the word “appellants” in the above argument, he is referring to Mr. and Mrs. Bogart individually.

The court disagrees with appellee’s assertion that there is no dispute that after hearing the crash, Mr. and Mrs. Bogert knew that they were not personally in danger. At a minimum, there is a dispute of material fact in that regard.

Excerpts from Mr. Bogert’s deposition, and the inference that can be legitimately drawn from those excerpts, could be interpreted by a fact-finder as meaning that after he heard what sounded like an “explosion,” he initially thought he was not in danger because he believed he was hallucinating but he then realized that what he heard was not imaginary (because his wife had also heard the loud noise), which caused him to run to the front of the house to find out what caused what sounded like a mortar attack.

Similarly, read in the light most favorable to the appellants, Mrs. Bogert’s reaction to the sound of the crash, coupled with the dangerous condition she saw when she entered A. A.’s room (and what she saw immediately thereafter), a fact-finder could legitimately find that Mrs. Bogert feared for her safety.

Even if neither Mr. nor Mrs. Bogert feared for their own safety due to appellee’s negligence, under the personal safety exception, they could nevertheless recover for emotional injuries if the defendant’s negligent act caused them to have a reasonable fear for the safety of their children. In their depositions, neither Mr. nor Mrs. Bogert were asked whether the sounds that they heard that woke them caused them to fear for their children’s safety.

But it can be inferred from how they reacted to the sound that defendant’s negligence did cause such fear. After all, they immediately jumped out of bed and ran to the girls’ rooms which were in the direction from which they heard what Mr. Bogert said sounded like a “mortar round” hitting his house. Further, according to their parent’s depositions, both A.A and A. E. were terrified by the crash that occurred immediately below their bedrooms. Their fear and anxiety were manifested by the fact that they both vomited shortly after the accident.

Appellee appears to argue that the plaintiffs must have witnessed the accident for the personal safety exception to be applicable. The court rejects that contention. A tortious act that causes what sounds like a loud explosion and also causes damages to personal property in a plaintiff’s home, would likely cause a plaintiff to be just as afraid for his safety and the safety of family members if he hears the explosion but does not see what caused it, as a plaintiff who sees the cause by witnessing the negligent act or acts unfold. The cases, cited by appellee, do not suggest otherwise.

Judgment of the Circuit Court for Harford County reversed.

Constitutional

Handgun carry permits

BOTTOM LINE: Where Maryland requires an applicant to demonstrate “good and substantial reason” for carrying a handgun, but the Supreme Court struck down a similar requirement under NY law, the Maryland law was struck down as unconstitutional.

CASE: In the Matter of William Rounds, No. 1533, Sept. Term, 2021 (filed July 27, 2022 (Judges WELLS, Reed, Salmon).

FACTS: William Rounds has an established history of training and experience with the use of firearms. He is a U.S. Army veteran, a lifetime member of several gun-related organizations and has both received and provided training in firearms handling, shooting and safety.

In 2006, after moving back to Maryland, Rounds applied for and was again granted a handgun carry permit. Every three years since, Rounds has applied for a renewal of the permit, and Maryland State Police, or MSP, has granted one, until 2017. Upon MSP’s denial in 2017, Rounds appealed to the handgun review board which granted his renewal.

According to Rounds, he has consistently indicated on his Maryland applications that his “good and substantial reason” for carrying a handgun is that he frequently purchases silver (often in the form of coins) for personal investment from persons unknown to him, and he sometimes carries cash in amounts between $500 and $3,000 to make these purchases.

In March 2020, Rounds applied for his 2020 carry permit renewal, citing once more his silver-purchasing activities. The MSP denied his renewal. The basis was his alleged failure to demonstrate “good and substantial reason” under Public Safety § 5-306(a)(6)(ii). Maryland courts have interpreted this requirement to mean the applicant must demonstrate having received actual threats or assaults.

Accordingly, the MSP has internally promulgated a standard operating procedure which mandates that applicants citing personal protection as their reason for carrying a handgun provide “[c]opies of documented evidence that the applicant’s life is in imminent danger or is currently being targeted by individuals wishing to do the applicant harm.” Likewise, it defines “Apprehended danger/fear” as “an objectively established concern that the Applicant’s life is in danger or that the applicant is being targeted by individuals wishing to do him or her harm.”

Rounds stipulated that he does not operate a business, and had received no threats, assaults or attacks, documented or otherwise. The only incident Rounds reported was a brief verbal altercation with another driver, which apparently concluded without any violence. The denial decision was affirmed on an administrative appeal and by the circuit court.

LAW: On June 23, 2022, the Supreme Court released its decision in New York State Rifle & Pistol Association, Inc. v. Bruen, No. 20-843, 597 U.S. — (June 23, 2022), reversing the U.S. Court of Appeals for the Second Circuit and holding unconstitutional New York’s statutory requirement for unrestricted concealed carry permit applicants to demonstrate “proper cause” under N.Y. Penal Law §400.00(2)(f). The court concluded there was no “such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” It thus held New York’s proper cause requirement violates the Fourteenth Amendment.

This ruling requires this court to now hold Maryland’s “good and substantial reason” requirement unconstitutional. And were the similarities between this requirement and New York’s now stricken proper cause requirement not self-evident enough, the Bruen court expressly noted that Maryland was one of six states to “have analogues to the ‘proper cause’ standards,’” citing Md. Pub. Safety § 5-306(a)(6)(ii) and quoting its “good and substantial reason” language.

Concluding the “good and substantial reason” requirement of § 5-306(a)(6)(ii) is unconstitutional, the rationale and resulting judgment of the circuit court in this case is invalid. As a result, because the only grounds on which MSP based its denial of Rounds’ permit was the “good and substantial reason” provision under § 5-306(a), now rendered unconstitutional, Rounds qualifies for a handgun carry permit under the remaining provisions of the statute. On remand, the circuit court must order that MSP issue Rounds his permit as requested.

Judgment of the Circuit Court for Somerset County reversed.

Contract

Wills and codicils

BOTTOM LINE: Where a son challenged a codicil executed by his late mother that revoked her bequest of a life estate in her real property to him, but the statutory requirements for the codicil were satisfied and there was insufficient proof the mother lacked “the necessary mental capacity,” his challenge failed.

CASE: In The Estate of Theresa Ruth Steiner, No. 757, Sept. Term, 2021 (filed July 28, 2022) (Judges Nazarian, Zic, MEREDITH)

FACTS: This appeal challenges the denial of a petition to caveat a holographic codicil of Theresa Ruth Steiner. The disputed codicil revoked the testator’s bequest of a life estate in her real property to Harold Steiner, who was the testator’s only child. The codicil also limited other bequests of personal property to him and removed him as a beneficiary of her residuary estate. These changes inured to the benefit of others, including Krystal Renee Steiner Vogtman, who is Harold’s daughter and a personal representative of the estate.

The orphans’ court denied Harold’s challenge to the codicil. When he appealed, the circuit court reviewed his caveat petition de novo. The circuit court held that the codicil was facially valid and that Harold failed to prove that it was not a valid instrument.

LAW: The circuit court found sufficient evidence, both from the codicil itself and from other circumstances surrounding it, to establish a prima facie case that the statutory requirements governing execution of testamentary instruments were satisfied.

The codicil is handwritten in block printed letters that are consistent over two consecutively-numbered pages. “PAGE 2 of 2” contains substantive testamentary language consisting of two bequests. Both of the witnesses’ signatures and the testator’s signature all appear on the same page below language attesting “In Witness Whereof, I have subscribed my name below, This 5^th day of June, 2020,” and next to descriptive labels stating either “Witness Signature” or “Testator Signature[.]”

The codicil bears several other “indicia of validity” on its face. The text of the codicil reflects the testamentary nature of the document, which referred to the unchallenged will. The testator’s revised bequests in the codicil went to persons who had previously been named as beneficiaries in the will she had undisputedly signed four months earlier.

Moreover, Adrian Herget, who witnessed the codicil, also witnessed the will, signing in what appears to be the same hand, beneath a full attestation clause. Likewise, Ginger Herget, who signed the codicil as a notary, had also signed as a witness to the execution of the will below the same attestation clause and in handwriting consistent with her notary signature on the codicil.

In two prior decisions, the Court of Appeals held a testamentary instrument may be facially valid, giving rise to a presumption of due execution, when “subscribed by two witnesses, both of whom signed their name following the word ‘witnesses.’” Here, the codicil bears attestations of two individuals who indicated that they were each signing the document as a “Witness.”

Further, based on the facial validity of the codicil and the paucity of evidence that the testator’s medical and mental condition prevented her from forming testamentary intent on the date she signed it, the circuit court did not err in finding that there was insufficient proof that the testator lacked “the necessary mental capacity on the specific date of June 5th, 2020, to make the decision to sign the codicil.” Likewise, the circuit court did not err in finding that Harold failed to prove fraud in the execution of the codicil.

With respect to Harold’s assertion that the testator, witnesses and notary did not execute the codicil in each other’s presence because he believed the testator’s health prevented her from traveling to Baltimore for it to be signed, the circuit court pointed out that there was no direct evidence of where the codicil was signed, and the evidence on that point was at best inconclusive. Finally, while Harold contends that the circuit court relied on the orphan’s court, instead of conducting a de novo review, based upon a reading of the entire transcript, this court is satisfied that the circuit court did review the challenge to the validity of the codicil de novo.

Judgment of the Circuit Court for Garrett County affirmed.

Criminal

Ineffective assistance of counsel

BOTTOM LINE: Although the defendant was ordered to not speak with his counsel during the overnight recess, and a Supreme Court decision holds that instruction is improper, his ineffective assistance of counsel claim failed because there was no showing that the instruction actually prevented the defendant and defense counsel from communicating.

CASE: State v. Clark, No. 1614, Sept. Term, 2021 (filed July 28, 2022) (Judges GRAEFF, Sharer) (Judge Nazarian dissents).

FACTS: Damien Gary Clark was tried by a jury on multiple charges, including second-degree murder. At the conclusion of his direct testimony, the court instructed him not to speak with anyone, including his attorney, during the overnight recess. Defense counsel did not object to the court’s instruction.

The jury convicted Clark of multiple charges, and he was sentenced to 50 years’ incarceration. His convictions were affirmed by this court in an unreported opinion.

Appellee then sought post-conviction relief. After a hearing in which his defense counsel testified that, that at the time of trial, he was not specifically aware of Geders v. United States, 425 U.S. 80 (1976), in which the court held that an order restricting an accused from consulting with counsel “about anything” during a lengthy overnight recess was improper, the post-conviction court granted appellee a new trial, finding that he received ineffective assistance of counsel due to counsel’s failure to object to the trial court’s no-communication instruction.

LAW: A defendant seeking to prove ineffective assistance of counsel must prove: (1) “that his or her counsel performed deficiently” and (2) “that he or she has suffered prejudice because of the deficient performance.” Here, Clark failed to prove that he was prejudiced by counsel’s failure to object to the court’s instruction.

To establish prejudice, a defendant generally must show: (1) that there is “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; or (2) that the result of the proceeding was fundamentally unfair or unreliable.’” Clark contends, and the dissent agrees, that the court’s instruction, by itself, constituted a deprivation of his Sixth Amendment right to the assistance of counsel.

The court disagrees with the premise that there was a showing of an actual deprivation of the right to counsel, and therefore, with the conclusion that a presumption of prejudice is warranted. Rather, to show a deprivation of the right to counsel in this context, there must be a showing that the instruction actually prevented the defendant and defense counsel from communicating.

The court holds that, although an order to the defendant not to discuss his or her testimony with anyone during an overnight recess is improper, it does not, by itself, constitute a deprivation of the right to counsel. Rather, to show that the instruction resulted in a violation of the defendant’s Sixth Amendment right to counsel, there must be some evidence that there was an actual deprivation of counsel. This evidence may be in the form of an objection to the court’s instruction or some other evidence showing that the defendant wanted to speak with counsel and would have done so absent the instruction.

Here, the circuit court appeared to presume prejudice based on its finding of an actual deprivation of counsel. However, there was no showing of an actual deprivation of appellee’s right to counsel, given that there was no objection to the instruction and there was no other evidence showing that appellee would have talked with counsel absent the instruction. Accordingly, appellee was not entitled to a presumption of prejudice.

It was thus appellee’s burden to prove prejudice, i.e., to “articulate how specific errors of counsel undermined the reliability of the finding of guilt.” Appellee makes no argument that, but for the lack of overnight consultation, the result of the trial would have been different. Appellee failed to show prejudice due to counsel’s failure to object to the court’s no-communication instruction, and therefore, he failed to prove his claim of ineffective assistance of counsel. The circuit court erred in granting him a new trial in this regard.

Judgment of the Circuit Court for Howard County reversed.

DISSENT: Although the deprivation that occurred here is identical to the deprivation in Geders, the majority requires Mr. Clark to prove retroactively that he actually had planned to exercise the Sixth Amendment right the trial court forbade him from exercising—otherwise no harm, despite the foul. He is worse off in constitutional and real-life terms for his counsel’s indisputably deficient performance (the majority doesn’t challenge that finding), no small irony in a right to counsel case. I dissent, respectfully, and would affirm the judgment of the postconviction court.

Medical malpractice

Intervening and superseding causes

BOTTOM LINE: Where the testimony suggested there could have been intervening and superseding causes for the death of the decedent, the trial court did not err in giving these instructions to the jury.

CASE: Handy v. Box Hill Surgery Center LLC, No. 0973, Sept. Term, 2021 (filed July 27, 2022) (Judges WELLS, Berger, Leahy).

FACTS: This appeal arises from a medical malpractice suit brought by representatives of Brenda Rozek, who died on Sept. 16, 2012, against Dr. Ritu Bhambhani MD, her private practice, Ritu T. Bhambhani, M.D., LLC and her surgery center, Box Hill Surgery Center LLC.

At trial, plaintiffs’ theory of negligence rested on Dr. Bhambhani’s use of drugs from a compounding pharmacy, which plaintiffs argued constituted a breach of the standard of care because, in their view, drugs from compounding pharmacies are inherently riskier and should only be used in limited cases, such as a when the patient has an allergy.

Dr. Bhambhani’s defense was primarily that the conduct of New England Compounding Center, or NECC, a compounding pharmacy, which allowed a lot to become contaminated with fungi and which failed to terminally sterilize the contents of the vials, was an intervening and superseding cause of Rozek’s death.

The jury returned a verdict that found that Dr. Bhambhani breached the standard of care in the treatment of Rozek and that Dr. Bhambhani’s breach caused the illness and death of Rozek. However, the jury also found that NECC’s negligence was an intervening and superseding cause of Rozek’s illness and death. Dr. Bhambhani was thus found not liable.

LAW: Analysis of whether a jury instruction is correctly given is guided by a three-part test: “(1) the requested jury instruction must be a correct exposition of the law; (2) the particular law must have been applicable to the evidence before the jury; and (3) the substance of the requested instruction must not have been fairly covered by the instructions actually given.” The first and third requirements are easily satisfied. Therefore, the focus is on whether an intervening and superseding instruction was applicable in light of the evidence that was presented before the jury.

From the testimony of the plaintiff’s expert, Dr. Saberski, one can identify five instances of alleged breach of the standard of care. At least one of these potential breaches occurred before NECC’s alleged intervening conduct in late June 2012: Dr. Bhambhani’s purchase of preservative-free methylprednisolone acetate, or MPA, from NECC beginning in 2008.

Appellants argue that, as a matter of law, Dr. Bhambhani’s breach in stocking her office with MPA from NECC could not have caused the harm to Rozek, and it was not until the MPA was injected that the negligent act occurred. The court is not persuaded by this argument, especially considering that their own expert witness testified that the stocking was one source of the harm. Furthermore, at trial, plaintiffs’ counsel told the court that plaintiffs were alleging more than one theory of breach.

Considering the plaintiffs’ theory that it was a breach of the standard of care for Dr. Bhambhani to order MPA from NECC in 2008, and in stocking her office with a supply of MPA from NECC, it easily meets the minimum threshold of evidence needed to establish a prima facie case of intervening cause as it is not disputed that this occurred before NECC’s conduct. The evidence was supplied by expert witnesses for both sides who testified to the breaches of care and the negligence of NECC.

Appellants next argue that it was error to instruct the jury on superseding cause because as a matter of law, NECC’s conduct could not have been a superseding cause of Rozek’s death. The court disagrees. In light of the testimony from multiple witnesses, the minimum threshold requirement to allow a jury question to be generated was easily met, and therefore the trial court did not abuse its discretion in instructing the jury on superseding cause and including it on the verdict sheet.

In their brief (and at oral argument) appellants insist that it was not extraordinary or unusual, and was completely foreseeable, that NECC, being a compounding pharmacy, would manufacture and ship compromised drugs. But, as appellants acknowledge, whether an intervening force rises to the level of a superseding cause is generally a question for the jury.

Judgment of the Circuit Court for Harford County affirmed.

Tort

Duty of agent

BOTTOM LINE: Where the trial court denied an owner’s complaint against his former horse trainer for breach of contract and breach of fiduciary duty, and failed to address the fraud count, those were reversible errors.

CASE: Braude v. Robb, No. 675, Sept. Term, 2021 (filed July 29, 2022) (Judges REED, Zic, Meredith).

FACTS: Herman Braude filed a complaint against his former horse trainer, John Robb, alleging, among other things, breach of contract, breach of fiduciary duty and fraud. After a bench trial, the circuit court denied Braude’s complaint for breach of contract and breach of fiduciary duty but did not address the fraud count.

LAW: The trial court found no enforceable contract because there was a lack of consideration. The court ruled that the exchange between the parties was a “gratuitous willingness” by Mr. Robb “to drop a claim, but a gratuitous act is not enforceable as a contract.” According to the court, to the extent there was some suggestion that Mr. Robb would be the trainer, that was not sufficient consideration because it was “not articulated as part of the deal[.]” This court disagrees with the trial court’s ruling.

If Mr. Braude’s version of events were found credible and if the court found that he had relied to his detriment on Mr. Robb’s promise to drop a claim for him, Mr. Braude might recover under his claim for detrimental reliance. Because the trial court failed to make a credibility determination, this court must remand for a new trial.

The trial court next stated that “material terms of the contract [were] . . . not laid out” and then suggested that too much time had elapsed between the offer and acceptance. Additionally, the court ruled that Mr. Braude failed to mitigate his injury because he did “not [] put down his own claim.” The court also found that Mr. Braude failed to mitigate his injury when Mr. Braude chose not to claim Hydra in her next six claim races.

The court’s rulings do not take into account the long-time partnership between the parties nor the context in which the oral contract took place, i.e., because of the risk involved in a claiming race, waiting to drop a claim slip until after observing the horse is one way, and a very reasonable way, to minimize the risk. Moreover, even if Mr. Braude had unreasonably delayed in telling Mr. Robb that he had the money until the start of the races on Saturday, according to Mr. Braude’s testimony, Mr. Robb still agreed to drop a claim slip for Hydra.

Accordingly, if Mr. Braude’s version of events were found credible, there was an offer and acceptance when the parties spoke before Big Boots’ race. If the court finds that Mr. Braude reasonably relied on Mr. Robb to claim the horse for him under the theory of detrimental reliance, Mr. Braude was under no duty to claim the horse himself. The court also notes that Mr. Braude repeatedly testified that he did not drop a claim slip because for over 30 years he had relied on Mr. Robb to do so.

Mr. Braude argues that the trial court erred in rejecting his breach of fiduciary duty count, finding that Mr. Robb did not owe him a fiduciary duty because Mr. Robb was not Mr. Braude’s exclusive agent for the purpose of claiming Hydra. The court agrees that the trial court erred.

While it is true that Mr. Robb could serve as a non-exclusive agent for other principals at the same time, he could not serve as an agent for more than one principal who was seeking to purchase the same horse. Mr. Robb specifically testified that he could only claim one horse at a time. When the agent form was signed and notarized, Mr. Robb was Mr. Braude’s agent and owed him a fiduciary duty. Mr. Gould did not sign an agent form with Mr. Robb until a week after the Hydra race. If Mr. Braude is credible, Mr. Robb breached his fiduciary duty of care to Mr. Braude by placing himself in a position where his interests conflicted with those of Mr. Braude.

Finally, the trial court incorrectly concluded that there was no factual basis or law that required it to address the fraud claim.

Judgment of the Circuit Court for Montgomery County reversed and remanded.

Zoning

Extrinsic evidence

BOTTOM LINE: Where a homeowner argued a deed was ambiguous and that the court should rely on extrinsic evidence to interpret it, but the deed’s terms unambiguously conveyed the disputed property to the state in fee simple absolute, no extrinsic evidence was necessary.

CASE: Wilkinson v. Board of County Commissioners of St. Mary’s County, No. 0478, Sept. Term, 2020 (filed July 28, 2022) (Judges Leahy, ZIC, Ripken).

FACTS: This case concerns a dispute over ownership and access rights regarding a piece of real property located in St. Mary’s County. John Allen Wilkinson owns property that lies on either side of the disputed property. He filed suit against the Board of County Commissioners of St. Mary’s County, asserting ownership of the disputed property. Christopher and Barbara Aiken own undeveloped property to the south of Wilkinson’s property and the disputed property. The Aikens successfully intervened as defendants, asserting that they have access rights over the disputed property.

The circuit court found that the county owned the disputed property in fee simple and denied Wilkinson’s motion for summary judgment. The court further granted the county’s motion for summary judgment as to all claims asserted by Wilkinson and the Aikens. As to the claims between the Aikens and Wilkinson, the court denied the Aikens’ motion for summary judgment and entered judgment in favor of Wilkinson.

LAW: In 1945, Joan Brady, a predecessor-in-interest to Wilkinson, deeded portions of her land to be used for the Scotland Beach to Point Lookout highway and extension of Bay Front Drive. Wilkinson contends that the deed is ambiguous and that the court should have considered extrinsic evidence. The court disagrees. The terms are unambiguous in that it did not create an easement over the disputed property, but rather, conveyed the disputed property to the state in fee simple absolute. And because the Brady deed did not convey the disputed property as an easement, the court need not consider Wilkinson’s arguments regarding abandonment and termination of an easement by estoppel.

Wilkinson maintains alternatively that the disputed property was conveyed in fee simple determinable rather than fee simple absolute because the Brady deed describes the state’s purpose for obtaining the disputed property. The court disagrees. A statement of purpose does not automatically create a fee simple determinable. Consequently, the county owns the disputed property in fee simple absolute, and the court did not err in granting the county’s motion for summary judgment on its declaratory judgment claim and did not err in denying Wilkinson’s motion for summary judgment.

Turning to the Aikens’ cross appeal, the circuit court ruled against them because, it held, all of their claims were based on the incorrect legal conclusion that there is, or was, a public road on the disputed property. This court hold, however, that the circuit court erred in concluding that no public road was established after Station Marker 14. First, there was an offer to dedicate the disputed property to public use as evidenced by the Brady deed and plat 1919. And the state accepted the offer to dedicate the disputed property to public use as evidenced by the 1945 deed. The 1988 deed further provides support that there was an acceptance.

As such, the circuit court erred in granting the county’s motion for summary judgment as the Aikens’ counts premised on the existence of a public road. For the same reason, the court additionally erred in granting summary judgment in favor of Wilkinson as to those counts.

The Aikens next argue that they were entitled to summary judgment on their quiet title claim against Wilkinson. The circuit court determined that this count failed as a matter of law because the Aikens failed to comply with § 14-108 of the Real Property Article and failed to join necessary parties. The court agrees. The Aikens alleged that “[t]he Wilkinsons and others have asserted a right to use the Aiken property and/or questioned the Aikens’ ownership and have otherwise created a cloud on the Aikens’ title.” The court agrees that they did not comply with § 14-108 by failing to join these “others” as defendants.

Finally, in granting the county’s motion for summary judgment on the Aikens’ interference with easement claim, the circuit court stated that the Aikens “fail[ed] to allege that [they] provided a notice of claim to the County as required by the [Local Government Tort Claims Act].” This court agrees.

Judgment of the Circuit Court for St. Mary’s County affirmed in part and vacated in part.