Maryland Appellate Court

Medical Malpractice; certificate of qualified expert: Where the Healthcare Malpractice Claims Act, or HCMCA, allows a plaintiff to submit a certificate of qualified expert from a person who is not board certified in the defendant’s specialty if the expert “taught medicine in the defendant’s specialty or a related field of health care,” there is no temporal limitation to “taught medicine.” A newly retired professor, for instance, could be said to have “taught medicine,” just the same as a professor who taught decades ago. Jordan v. Elyassi’s Greenbelt Oral & Facial Surgery PC, No. 1049, Sept. Term, 2021 (filed Dec. 29, 2022).  

Administrative; authority to charge fees: Where purchasers of real property at tax sales argued that Baltimore city lacked authority to charge them a $125 fee to review their proposed deeds before it executed and issued them, their arguments were rejected. The tax sale statute is unambiguous and permits the city to collect the deed review fee before executing and delivering a tax deed. Al Czervik LLC v. Mayor & City Council of Baltimore, No. 2026, Sept. Term, 2021; Thornton Mellon LLC v. Mayor & City Council of Baltimore, No. 144, Sept. Term, 2022 (filed Jan. 3, 2023).  

Contract; frustration of purpose and impossibility: Where owners of a pub argued that business closure orders implemented during the Covid-19 pandemic made it impossible for them to pay rent, the circuit court erred in finding that impossibility excused their performance. The lease did not prohibit carry-out or delivery service. Critzos II v. Marquis, No. 293, Sept. Term, 2022 (filed Jan. 3, 2023).  

Criminal; property crime restitution: Where the circuit court ordered the defendant to pay the attorney’s fees the victim incurred in preventing the dissipation of his stolen funds, it erred. Nothing in the legislative history or caselaw supports the view that a property crime victim can recover these types of damages. Shivers v. State, No. 879, Sept. Term, 2021 (filed Jan. 3, 2023).

Medical Malpractice

Certificate of qualified expert

BOTTOM LINE: Where the Healthcare Malpractice Claims Act, or HCMCA, allows a plaintiff to submit a certificate of qualified expert from a person who is not board certified in the defendant’s specialty if the expert “taught medicine in the defendant’s specialty or a related field of health care,” there is no temporal limitation to “taught medicine.” A newly retired professor, for instance, could be said to have “taught medicine,” just the same as a professor who taught decades ago.

CASE: Jordan v. Elyassi’s Greenbelt Oral & Facial Surgery PC, No. 1049, Sept. Term, 2021 (filed Dec. 29, 2022) (Judges Reed, Shaw, ALBRIGHT).

FACTS: Under the HCMCA, the plaintiff in a medical malpractice action typically must file a valid certificate of qualified expert, or CQE, to support a claim of malpractice. If the defendant is board certified in a specialty, the statute also imposes a further requirement on the attesting expert (board certification in the same or a related specialty), as well as two exceptions to that requirement. This appeal concerns the exception for an attesting expert who “taught medicine in the defendant’s specialty or a related field[.]”

Appellant brought a malpractice action against Dr. Ali Reza Elyassi and his practice. Dr. Elyassi is board certified in a specialty, and the attesting expert who signed Dr. Jordan’s CQE is not. The attesting expert, however, has clinical experience in a related field within five years of the alleged malpractice at issue. He also taught as an assistant professor in that same field for approximately two years during the 1970s. The circuit court struck Dr. Jordan’s CQE and dismissed her complaint with prejudice, holding that the attesting expert’s teaching experience was not recent enough to satisfy the exception to the board certification requirement.

LAW: By its terms, the exception applies to experts who “taught medicine in the defendant’s specialty or a related field of health care.” The natural reading of “taught medicine” is not time-bound. It refers equally to teaching experience in the recent past and in the distant past. A newly retired professor, for instance, could be said to have “taught medicine,” just the same as a professor who taught decades ago.

Dr. Elyassi contends that what “taught medicine” actually means is “taught medicine . . . within 5 years of the date of the alleged act or omission.” But, to refer to a narrower category of teaching experience (such as only recent teaching experience), the General Assembly would have needed to add words to the “taught medicine” exception—much as it did elsewhere by employing the phrase “within 5 years of the date of the alleged act or omission[.]” Certainly, the General Assembly could have done so. But this court cannot add words to a statute to change its meaning, even were we to imagine a reason for doing so.

Moreover, the omission of a temporal limit on teaching experience here appears to have been intentional. By including a five-year limit in a different part of the same statutory section, the General Assembly not only illustrated that the phrase “taught medicine” is not naturally time-bound, but also demonstrated that it knew how to impose a time restriction on that phrase when it so desired.

Dr. Elyassi nonetheless reasons that because the statute was designed to impose heightened CQE requirements when the defendant is board certified, the exception’s plain language cannot mean what it says because heightened CQEs requirements will not always be imposed in practice. For example, an expert might satisfy the recency requirement through recent teaching experience, and then need nothing further in order to satisfy the exception to the board certification requirement. Contrary to Dr. Elyassi’s argument, however, the court thinks this makes sense.

Next, Dr. Elyassi argues that, even if there is no temporal limit to the “taught medicine” exception, the attesting expert’s teaching experience here occurred so long ago that we should not deem it experience in a “related” field. The court does not need to engage in a detailed review of the similarities and differences between periodontics and oral and maxillofacial surgery, however, because Dr. Elyassi concedes that (at least since the development of implantology), the two fields of health care are sufficiently similar here. Further, Dr. Elyassi’s novel argument was not adequately presented to nor decided by the circuit court.

If the plaintiff fails to file a valid CQE, then the statute provides that the court must dismiss the action without prejudice. Here, the circuit court dismissed Dr. Jordan’s complaint with prejudice for a purported failure to file a valid CQE, on the theory that the statute of limitations had run and that a dismissal without prejudice would have had the same effect. However the HCMCA does not afford any discretion. As such, as an independent ground for reversal, the circuit court erred in dismissing Dr. Jordan’s complaint with prejudice.

Judgment of the Circuit Court for Prince George’s County reversed.

Administrative

Authority to charge fees

BOTTOM LINE: Where purchasers of real property at tax sales argued that Baltimore city lacked authority to charge them a $125 fee to review their proposed deeds before it executed and issued them, their arguments were rejected. The tax sale statute is unambiguous and permits the city to collect the deed review fee before executing and delivering a tax deed.

CASE: Al Czervik LLC v. Mayor & City Council of Baltimore, No. 2026, Sept. Term, 2021; Thornton Mellon LLC v. Mayor & City Council of Baltimore, No. 144, Sept. Term, 2022 (filed Jan. 3, 2023) (Judges NAZARIAN, Friedman, Wright Jr.).

FACTS: After they secure a certificate of sale and meet certain post-judgment statutory obligations, tax sale purchasers are entitled to have the deed to the property executed and issued to them by the tax collector. As a condition of issuing the deed, however, § 14-847(b) of the Tax-Property Article, or TP, also requires purchasers to bear “all expenses incident to the preparation and execution of the deed.” Baltimore city charges purchasers a $125 fee to review their proposed deeds before the city executes and issues them.

The tax sale purchasers in these companion cases contend that the city lacks authority under TP § 14-847(b), or the tax sale statute more broadly, to charge that fee, and that the city is obliged to execute the deed without further charges once they have paid the purchase price and the taxes, interest and penalties on the property. The purchasers challenged the fee in the circuit court in two different cases—in one case where they paid the fees and sought after-the-fact declaratory relief and another where they refused to pay the fee and filed a motion under Maryland Rule 2-648 seeking to compel the city to execute the deed.

The circuit court rejected the challenges, finding in both cases that the tax sale statute is unambiguous and permits the city to collect the deed review fee before executing and delivering a tax deed, and in the second case that the buyers weren’t entitled to relief under Rule 2-648.

LAW: There is no dispute that the city incurs expenses incident to reviewing and executing tax deeds. The legal question posed by Thornton Mellon is whether those expenses are properly borne by Thornton Mellon, as “holder of the certificate of sale,” or by the city, as tax collector (and, ultimately, by city taxpayers). Thornton Mellon’s overarching view is that it is entitled to execution, and thus to a completed deed, “on payment to the collector of the balance of the purchase price, due on account of the purchase price of the property, together with all taxes and interest and penalties on the property that accrue after the date of sale.”

Although it acknowledges that it bears the expenses incident to the preparation and execution of the deed, Thornton Mellon argues that because TP § 14-847(b) “makes no reference to the tax collector,” the collector lacks authority to charge expenses relating to the deed. But Thornton Mellon’s interpretation of (b) artificially restrains the meaning of the word “all,” the only word modifying the holder’s obligation to bear expenses to the preparation and execution of the deed.

Subsection (a) states that the city, as tax collector, executes the deed. But the natural and ordinary meaning of subsection (b) is that Thornton Mellon (or its assignee), as “the holder of the certificate of sale,” pays “all expenses incident to the preparation and execution of the deed . . . ,” whatever their source. As the city points out, “since TP § 14-847(a) specifies that it is the collector who does the executing, it is the collector’s expenses incident to execution that the holder must pay.”

To avoid the broad, plain language of subsection (b) (that it pay “all expenses incident to the preparation and execution of the deed”), Thornton Mellon argues that because TP §§ 14-813 and 14-818 specify what the city may charge during tax sales, § 14-847(b)’s general description of expenses can’t authorize a new charge by the city. But that argument misconstrues the other sections.

This court’s interpretation of TP § 14-847 is consistent with the Supreme Court of Maryland’s recent opinion in Mayor & City Council of Baltimore v. Thornton Mellon, LLC, 478 Md. 396 (2022). The court thus affirms the circuit court for the city’s reasoning in the declaratory judgment action, but vacates the order and remands to the circuit court with direction that it enter declaratory judgment consistent with this opinion and in favor of the city.

Judgment of the Circuit Court for Baltimore City affirmed in one case and vacated in second case.

Contract

Frustration of purpose and impossibility

BOTTOM LINE: Where owners of a pub argued that business closure orders implemented during the Covid-19 pandemic made it impossible for them to pay rent, the circuit court erred in finding that impossibility excused their performance. The lease did not prohibit carry-out or delivery service.

CASE: Critzos II v. Marquis, No. 293, Sept. Term, 2022 (filed Jan. 3, 2023) (Judges Kehoe, BERGER, Arthur).

FACTS: Commercial landlord John Critzos II appeals an order of the circuit court granting judgment in favor of his former tenants, David and Carolyn Marquis. The Marquises conceded that they did not make rent payments as required by the commercial lease. The circuit court nevertheless determined that the Marquises’ failure to satisfy their obligations under the commercial lease at issue was excused by the legal doctrines of frustration of purpose and impossibility.

LAW: The circuit court found that the parties to the lease at issue in this case could not have reasonably contemplated a pandemic resulting in a government closure of all businesses. Critzos argues that the potential of a global infectious disease event was known in 2015 at the time the lease was made, and, therefore, the circuit court erred in determining that the COVID-19 related executive orders were not reasonably foreseeable. The court is not persuaded, however, that it was reasonably foreseeable that an infectious disease could cause the level of disruption experienced worldwide beginning in March of 2020.

The court turns, therefore, to whether the executive orders issued at the onset of the COVID-19 public health emergency rendered the Marquises’ performance under the terms of the commercial lease for a brewery/pub legally impossible or excused by the frustration of purpose doctrine. As the circuit court observed, as of the time this matter was before the circuit court in September 2021, the parties agreed “that they had found no reported Maryland cases on point as to whether the impossibility and frustration defenses properly might be invoked in the context of the COVID-19 pandemic.” To this court’s knowledge, there remain no Maryland cases addressing this precise issue. Other courts have reached differing conclusions as to the applicability of the frustration of purpose/legal impossibility defense in this context.

From these out-of-state cases the court gleans that the focus necessarily must be upon what is expressly permitted by the terms of the lease. The lease at issue in this case provided that the Marquises “shall use the Leased Premises for Brewery/Pub only,

and for related activities but for no other purposes unless written consent is provided by the Landlord.” Notably, the lease did not prohibit takeout dining — a factor that other courts have considered important in assessing frustration of purpose and legal impossibility claims.

The circuit court relied upon Wischhusen v. Am. Medicinal Spirits Co., 163 Md. 565 (1933), a Prohibition-era case involving a whiskey distiller who had been hired to produce alcohol for medicinal purposes but was denied a federal permit to do so. The court held that because there was no way for the distiller to fulfill his duties under the contract without violating the law, his performance was excused.

The circuit court reasoned that the operation of the brewery/restaurant by the Marquises would have been similarly criminal after the issuance of the governor’s executive orders. This court disagrees. The whiskey distiller in Wischhusen was completely prohibited from working in the role for which he had been hired. In contrast, the lease did not limit the Marquises to operating an indoor, in-person restaurant and brewery, nor did the lease prohibit carry-out or delivery service. The executive orders certainly limited the Marquises’ business operations, but they did not render the sole purpose of the lease illegal.

The court also fails to see how the 30-day period specified in the lease during which the landlord could elect to terminate the lease after a fire or other casualty somehow gives rise to an option for the tenant to terminate the lease under entirely different circumstances that did not render the premises entirely unusable. Nor does the court consider it particularly significant that the lease did not contain a force majeure clause.

Judgment of the Circuit Court for Anne Arundel County reversed.

Criminal

Property crime restitution

BOTTOM LINE: Where the circuit court ordered the defendant to pay the attorney’s fees the victim incurred in preventing the dissipation of his stolen funds, it erred. Nothing in the legislative history or caselaw supports the view that a property crime victim can recover these types of damages.

CASE: Shivers v. State, No. 879, Sept. Term, 2021 (filed Jan. 3, 2023) (Judges Friedman, BEACHLEY, Salmon).

FACTS: Following a two-day trial, a jury in the circuit court convicted Sharon Shivers of one count of theft of property valued between $25,000 and $100,000. At the restitution and sentencing hearing, the trial court ordered appellant to pay $6,000 in restitution—$5,000 directly to the victim (John Smith, the elderly father of Ms. Shivers) and $1,000 to the victim’s attorney. The court then sentenced appellant to six months’ incarceration.

LAW: Appellant first argues that the state failed to establish that she possessed the requisite intent to deprive Mr. Smith of his money, and that she did not actually deprive him of the money. Appellant asserts that she possessed a good faith belief that she could withdraw the funds to “safeguard” them for her father due to his allegedly deteriorating mental state.

Appellant further notes that Mr. Smith was able to immediately determine where his money was, and that, because she possessed a good faith belief that she was simply protecting Mr. Smith’s assets, there was insufficient evidence to show that Mr. Smith would not be able to eventually recover his funds. Appellant further argues that Mr. Smith never placed explicit restrictions on her access to the money. Appellant’s arguments are unpersuasive.

There is ample evidence on this record for the jury to have found the essential elements of theft beyond a reasonable doubt. The uncontradicted evidence showed that appellant withdrew $85,000 from Mr. Smith’s account, made the funds inaccessible to Mr. Smith and refused to return the funds upon request.

Appellant next argues that the trial court erred in excluding evidence that related to her perception of Mr. Smith’s mental acuity. In all three instances, however, appellant failed to meet her burden of establishing that the evidence—which was presumably excluded as hearsay—was admissible. In fact, at no point during the trial did appellant even raise the hearsay arguments she now presents in her brief. Even assuming, arguendo, that the evidence was improperly excluded, any error was harmless beyond a reasonable doubt.

Appellant’s final argument on appeal is that the sentencing court erred in ordering her to pay $6,000 in restitution. Prior to sentencing, the court held a hearing on Mr. Smith’s request for restitution. At the hearing, William Byrd, Esquire, testified that Mr. Smith retained him to recover the stolen funds. After being retained, Mr. Byrd communicated with a Prince George’s County detective as well as with the bank where Mr. Smith kept his money. Mr. Byrd explained that he successfully obtained a temporary restraining order and a preliminary injunction to prevent appellant from dissipating Mr. Smith’s funds. Mr. Byrd testified that Mr. Smith had paid $5,000 in legal fees, and that Mr. Smith still owed an outstanding balance of $1,000.

The court awarded attorney’s fees because it determined that the victim suffered a “direct out-of-pocket loss” pursuant to § 11-603(a)(2)(ii) of the Criminal Procedure Article, or CP. The phrase “direct out-of-pocket loss” is not defined in the subtitle’s definitional section. This court’s review of the plain statutory text and legislative history leads it to conclude that CP § 11-603(a)(2)(i)-(iv) exclusively authorizes a court to award restitution for a victim’s expenses and losses resulting from physical or mental injury.

Nothing in the legislative history or caselaw construing the statute would support the view that a property crime victim could recover actual medical and hospital expenses, loss of earnings, or rehabilitation expenses as set forth in subsections (i), (iii) and (iv) of the statute. It would therefore be illogical to conclude that subsection (ii)’s authorization for direct out-of-pocket loss would be applicable to victims of theft and other property crimes, but the adjacent subsections would not. The circuit court thus erred in awarding Mr. Smith attorney’s fees he incurred to recover his funds pursuant to CP § 11-603(a)(2)(ii)’s provision for direct out-of-pocket loss.

Judgment of the Circuit Court for Prince George’s County regarding the conviction is affirmed; regarding the restitution is reversed.