Maryland Supreme Court

Sanctions; flagrant and persistent MARPC violations: Where an attorney failed to adequately represent his client in litigation, failed to sufficiently communicate with the client, billed for legal services he did not provide and made knowing and material misrepresentations to the court, he was disbarred for his “flagrant and persistent” violations. Attorney Grievance Commission of Maryland v. Parris, Misc. Docket AG No. 22, Sept. Term, 2021 (filed Feb. 1, 2023).  

Maryland Appellate Court

Criminal; knowing waiver of jury trial: Where a man argued the trial judge should have confirmed he wasn’t impaired when he waived his right to a jury trial, but nothing the record suggested his demeanor was of concern or should have prompted the court to ask more specific questions, his waiver was knowing and voluntary. Hammond v. State, No. 44, Sept. Term, 2022 (filed Feb. 2, 2023).  

Criminal; Interstate Agreement on Detainers Act: Where the Maryland circuit court trial of a man held in federal custody was delayed numerous times, most significantly because of court closures during the COVID-19 pandemic, that delay did not violate the Interstate Agreement on Detainers Act, which ordinarily required trial within 180 days. COVID-related court closures constitute an example of administrative unavailability that excuse compliance with the act. Timberlake v. State, No. 585, Sept. Term, 2022 (filed Feb. 2, 2023).

Criminal; sexual abuse of a child: Where a man was convicted with sexually abusing a child as a “parent,” but the child was his stepchild and the statute’s contemplated meaning of “parent” is limited to biological or adoptive parents, the conviction was vacated. Mohan v. State, No. 1853, Sept. Term, 2021 (filed Feb. 2, 2023).

Insurance; contribution among insurance carriers: Where multiple insurance carriers were sued for allegedly breaching their duty to defend a general contractor, the circuit court erred when it determined that settling defendants’ settlement agreements extinguished whatever contribution rights a non-settling insurer may have against them. Selective Way Insurance Co. v. Fireman’s Fund Insurance Company, No. 753, Sept. Term, 2021 (filed Feb. 3, 2023).

Maryland Supreme Court

Sanctions

Flagrant and persistent MARPC violations

BOTTOM LINE: Where an attorney failed to adequately represent his client in litigation, failed to sufficiently communicate with the client, billed for legal services he did not provide and made knowing and material misrepresentations to the court, he was disbarred for his “flagrant and persistent” violations.

CASE: Attorney Grievance Commission of Maryland v. Parris, Misc. Docket AG No. 22, Sept. Term, 2021 (filed Feb. 1, 2023) (Judges Fader, Watts, Booth, Biran, Gould, EAVES, Raker).

FACTS: The Attorney Grievance Commission of Maryland filed a petition alleging that Keith Anthony Parris violated nine Maryland Attorneys’ Rules of Professional Conduct, or MARPC. The circuit court held a hearing, at which Parris did not appear. The hearing judge considered the evidence that the commission submitted at the hearing and then filed findings of fact and conclusions of law with this court. Parris did not file any exceptions to the findings of fact and conclusions of law.

LAW: Parris’s misconduct in this case arises out of his representation of the Chaddsford Community Association Inc. The court finds that Parris’s derelict representation of Chaddsford concurrently violated professional conduct rules of competence, diligence, communication, expediting litigation and fairness to opposing party and attorney.

Parris repeatedly failed to respond to discovery requests, failed to adequately comply with the circuit court’s orders compelling discovery and failed to file any opposition to the firm’s motions for sanctions and motion for default. Parris neglected to apprise Chaddsford of the firm’s discovery requests or of the deadlines to respond to the discovery requests, to advise Chaddsford of the court orders compelling discovery and the possibility of sanctions and to inform Chaddsford of the summary judgment, sanctions, and default motions.

Parris failed to substantively answer Chaddsford’s numerous and reasonable requests for information, and when he did communicate with Chaddsford, he intentionally omitted his shortcomings that resulted in harm to Chaddsford. When Parris did provide discovery, he produced untimely and incomplete discovery responses on behalf of Chaddsford despite court orders compelling complete responses. Parris’s continuous inaction at each stage of the litigation resulted in significant harm to Chaddsford in the form of a $75,000 default judgment and court-imposed sanctions of $1,225 in attorney’s fees with post judgment interest.

Parris took no action to vacate the default judgment against Chaddsford and did not notify Chaddsford of the default judgment until approximately five months later. For these reasons, Parris violated Rules 1.1, 1.3, 1.4, 3.2, 3.3(c) and 3.3(d). Furthermore throughout the litigation, Parris periodically billed Chaddsford for legal services he did not provide, collecting from Chaddsford unreasonable fees totaling $8,830.

Next, pursuant to Rule 19-740, this court treats as established the hearing judge’s finding that Parris made knowing and intentional misrepresentations to the circuit court in his June 28, 2019, answer to the motion for summary judgment. Parris stated that he was “still in the process of gathering discovery” and “had been hindered in this process in not receiving documents and pleadings” from the opposing firm. But the circuit court record reflects that the opposing firm served a copy of answers to interrogatories on April 15, 2019. This court therefore agrees with the hearing judge’s conclusion that Parris’s conduct violated Rule 3.3(a)(1).

Parris failed to respond to bar counsel’s correspondence in 2020 dated July 2, July 29, November 10 and November 16. Even after receiving hand delivered copies of bar counsel’s letters at his residence and stating that he would respond, Parris still failed to respond in any manner. Thus, Parris violated Rule 8.1(b). And because the court concludes that Parris violated multiple rules of professional conduct, Parris also violated Rule 8.4(a).

The commission identified that Parris has an absence of a disciplinary record, which the hearing judge found was a present mitigating factor. On the other hand, the hearing judge found the existence of seven aggravating factors. This court agrees with the hearing judge that clear and convincing evidence supports each of these aggravating factors. “To safeguard the public from future harm and to protect its perception of the legal community at large,” disbarment is the appropriate sanction for Parris’s “flagrant and persistent MARPC violations.”

Disbarment ordered.

Maryland Appellate Court

Criminal

Knowing waiver of jury trial

BOTTOM LINE: Where a man argued the trial judge should have confirmed he wasn’t impaired when he waived his right to a jury trial, but nothing the record suggested his demeanor was of concern or should have prompted the court to ask more specific questions, his waiver was knowing and voluntary.

CASE: Hammond v. State, No. 44, Sept. Term, 2022 (filed Feb. 2, 2023) (Judges Wells, GRAEFF, Nazarian).

FACTS: After a three-day bench trial, the circuit court convicted Robert Eugene Hammond of first-degree assault, use of a firearm in the commission of a crime of violence, possession of a firearm with a felony conviction, illegal possession of ammunition and possession of a controlled dangerous substance.

LAW: Appellant contends that the circuit court violated his constitutional right to a jury trial because it failed “to ensure that he knowingly and voluntarily waived his right to a jury trial.” Rule 4-246(b) clearly states that a court may not accept a jury trial waiver until it “determines and announces on the record that the waiver is made knowingly and voluntarily.” To challenge a failure to comply with Rule 4-246(b) on appeal, however, there must be an objection raised in the trial court.

Appellant concedes that no objection was made to the court’s failure to announce on the record its determination that the waiver was knowing and voluntary. He requests, however, this court to exercise its discretion to review the issue. The court declines to address this unpreserved issue. If an objection had been raised below, the court easily could have corrected the error.

Appellant next contends that the court violated his constitutional right to a jury trial because the court failed to ensure that his waiver of this right was knowing and voluntary. Unlike a claim that the procedure in Rule 4-246(b) was not followed, a claim of a constitutional violation of the right to a jury trial does not require an objection to preserve the claim.

Considering the totality of the circumstances, however, the record shows that appellant knowingly and voluntarily waived the right to a jury trial. The court advised appellant of his right to have a trial by jury, which “is twelve people” who would have to make a unanimous decision that he was guilty beyond a reasonable doubt. If he waived that right, the court, as one person, would decide if he was guilty or not. At the end of the court’s advisement, appellant indicated that he wanted to waive his right to a jury trial and be tried by the court. The Supreme Court of Maryland upheld a waiver based on a similar colloquy. Moreover, the record reflects that appellant discussed the waiver of his right to a jury trial with his counsel.

Appellant contends that his waiver colloquy was insufficient because there were “two critical ‘factual triggers’ that should have prompted the trial court to inquire that [he] was not under the influence of drugs or alcohol such that his free will was not impaired.” Those triggers included that: (1) he was charged with drug offenses in this case and (2) he had a criminal history of drug-related issues. Counsel for appellant indicated in oral argument that, in any case where the defendant has been charged with drug offenses or had a history of drug-related offenses, the court is required to ask specific questions regarding the voluntariness of a jury trial waiver.

This court disagrees. There is nothing in the record to suggest that appellant’s demeanor was of concern or should have prompted the court to ask more specific questions regarding the voluntariness of appellant’s waiver of his right to a jury trial. The record here was sufficient to support the court’s conclusion that appellant’s jury trial waiver was knowing and voluntary.

Appellant’s next contention is that there was insufficient evidence to support his convictions for first-degree assault and second-degree assault. The court finds that by participating in actions that resulted in a barrage of gunfire penetrating the house, appellant created a zone of danger to all the residents in the home. He intended to place everyone in the house in fear of imminent physical harm. The evidence was sufficient to support appellant’s conviction for the intent to frighten assault.

Judgment of the Circuit Court for Cecil County reversed.

Criminal

Interstate Agreement on Detainers Act

BOTTOM LINE: Where the Maryland circuit court trial of a man held in federal custody was delayed numerous times, most significantly because of court closures during the COVID-19 pandemic, that delay did not violate the Interstate Agreement on Detainers Act, which ordinarily required trial within 180 days. COVID-related court closures constitute an example of administrative unavailability that excuse compliance with the act.

CASE: Timberlake v. State, No. 585, Sept. Term, 2022 (filed Feb. 2, 2023) (Judges WELLS, Graeff, Nazarian).

FACTS: The circuit court trial of Michael Timberlake, who was then a federal prisoner, was delayed numerous times, most significantly, due to court closures ordered by the Supreme Court of Maryland, during the COVID-19 pandemic. In fall 2020, several months prior to Timberlake’s rescheduled trial date in February 2021, but nearly a year after he had been brought to Maryland, Timberlake moved to dismiss on two grounds related to the trial delay. The circuit court denied the motion to dismiss.

LAW: In State v. Pair, 416 Md. 157 (2010), the Supreme Court of Maryland found  that, with the exception of the Fifth Circuit, all federal and state courts that had addressed the issue had concluded a prisoner was “‘unable to stand trial’ on the charges underlying the detainer whenever such unavailability can be attributed to ‘legal’ or ‘administrative’ reasons[.]” This court has little trouble concluding that the COVID-related court closures constitute another example of administrative unavailability.

Accordingly, the Interstate Agreement on Detainers Act, or IADA, was not violated by the continuance of Timberlake’s trial beyond the original IADA deadline of April 13, 2020, because of the complete closure of all courts. The circuit court’s denial of his motion to dismiss is affirmed.

Timberlake next contends the circuit court erred in denying his motion to dismiss for a violation of Maryland rules (commonly referred to as Hicks) because on Sept. 11, 2020, when the court postponed his trial date beyond the adjusted Hicks deadline of Jan. 29, 2021, the postponement was not ordered by an administrative judge, nor was a good cause finding made. Timberlake contends that when the administrative judge late made a good cause finding on September 22 to justify the continuance, it did not remedy the violation because, as Timberlake sees it, “the damage was done” with the September 11 postponement which was not made by the administrative judge.

Decisions from Maryland appellate courts have made clear that only an administrative judge or his or her designee can postpone a case beyond its Hicks date. Assuming then that it was error on Sept. 11, 2020, for the non-administrative judge to move the trial date beyond Hicks, this court must determine whether administrative judge’s finding of good cause for postponing Timberlake’s trial beyond the Hicks date, made 11 days later on September 22—a date still before the Hicks date of Jan. 29, 2021—can remedy that error, or if instead, this court cannot consider any actions relating to the postponement except September 11.

The court finds that dismissal for a Hicks violation is, at a minimum, not mandatory where the 180-day period has not yet expired. At the time of Timberlake’s motion to dismiss—Sept. 22, 2020—the 180-day time period had not run out (nor was it approaching expiration), so the second condition for a Hicks violation was not satisfied. There was still time for the administrative judge to make a good cause finding justifying postponement beyond the 180 days, or, to move the trial to within the 180 days if he found good cause to be lacking.

This court has found no cases, and Timberlake points to none, where Maryland’s appellate courts have affirmed the grant of a motion to dismiss based on Hicks made before the expiration of the 180-day period. The court accordingly concludes that the September 22 hearing was premature for a motion to dismiss based on an alleged violation of Hicks.

Reviewing the September 22 hearing as the proceeding that ultimately determined the trial would be held after the Hicks date, this court nevertheless would not find it violates the statute or rule: an administrative judge made a good cause finding for postponing Timberlake’s trial until after the Hicks date, and Timberlake has not demonstrated that that judge clearly abused his discretion or argued that good cause was lacking as a matter of law.

Judgment of the Circuit Court for Howard County reversed.

Criminal

Sexual abuse of a child

BOTTOM LINE: Where a man was convicted with sexually abusing a child as a “parent,” but the child was his step-child and the statute’s contemplated meaning of “parent” is limited to biological or adoptive parents, the conviction was vacated.

CASE: Mohan v. State, No. 1853, Sept. Term, 2021 (filed Feb. 2, 2023) (Judges BERGER, Harrell) (Judge Friedman, concurs).

FACTS: Brandon Mohan was charged in the circuit court with committing sexual abuse of his minor stepchild. The jury convicted Mohan of child sexual abuse, one count of third-degree sex offense, one count of fourth- degree sex offense and one count of second-degree assault. The question is whether the General Assembly intended the term “parent” to apply to an individual such as Mohan, who is a stepparent with parental responsibilities.

LAW: Md. Code § 3-602(b)(1) of the Criminal Law Article, or CR, designates three discernable classes of persons prohibited from causing sexual abuse to a minor: (1) parents; (2) other persons who have permanent or temporary care or custody of a minor and (3) other persons who have responsibility for the supervision of a minor. The terms “family member” and “household member” are clearly defined in CR § 3-601(a).

Here, the state, rather than charging Mohan generally under the statute, charged and tried Mohan specifically and only as a “parent” of the minor, which is not defined. The circuit court utilized three “factors” to conclude Mohan was a “parent” under the criminal statute: (1) he was married to the minor’s biological mother at the time of the abuse and acted as a “live-in” stepparent; (2) he was a de facto parent under the four-factor test in Conover v. Conover, 450 Md. 51 (2016), and (3) he stood in loco parentis to the minor. The court rejects each factor.

The most logical and harmonizing conclusion is that “parent” is meant to be narrowly construed as biological or adoptive parent only. The classes of individuals that share characteristics of de facto parenthood and in loco parentis are identified in other subsections of the statute. Interpreting “parent” to include these classes would render both “parent” and the other subsections redundant and would unnecessarily broaden the penal statute.

The court thus concludes that the criminal statute’s contemplated meaning of the term “parent” is limited to biological or adoptive parents. Indeed, the legislative history of the statute at issue supports this analysis. Mohan’s conviction for child sexual abuse is reversed. His sentence for third-degree sexual offense (which was completely suspended) is vacated and the conviction for that offense is remanded for resentencing.

Mohan also argues that the circuit court improperly admitted out-of-court statements, specifically witness statements reciting his wife’s statements of the minor’s disclosure of Mohan’s alleged abuse as well as Mohan’s alleged admissions. The court holds that the circuit court did not err in admitting this evidence as prior consistent rehabilitative statements under Md. Rule 5-616(c)(2).

Judgment of the Circuit Court for Wicomico County reversed in part and affirmed in part.

CONCUR: I concur in the judgment reached by my colleagues in the majority, but only because I am bound by precedent to follow what I consider to be an incorrect reading of CR § 3-602(b). A plain reading of CR § 3-602 (b)(1) does not create “three discernable classes,” but one class that encompasses all people who are a parent or in a parent-like relationship to their sexual abuse victim.

This clear, plain and commonsense reading of the statute is, however, foreclosed by the Supreme Court of Maryland’s decision in Pope v. State, 284 Md. 309 (1979), and this court’s opinion in Tapscott v. State, 106 Md. App. 109 (1995). I write separately, therefore, in the fervent hope that the Supreme Court of Maryland will take this opportunity to correct this misreading of the statute or so that the General Assembly can revise the statute to make even more plain the meaning that should always have been plain.

Insurance

Contribution among insurance carriers

BOTTOM LINE: Where multiple insurance carriers were sued for allegedly breaching their duty to defend a general contractor, the circuit court erred when it determined that settling defendants’ settlement agreements extinguished whatever contribution rights a non-settling insurer may have against them. 

CASE: Selective Way Insurance Co. v. Fireman’s Fund Insurance Company, No. 753, Sept. Term, 2021 (filed Feb. 3, 2023) (Judges Berger, ARTHUR, Kenney).

FACTS: The parties to this case are liability insurance companies that did not provide a defense for a common insured (Questar) in an underlying lawsuit. Nationwide provided a defense and then sued the other carriers. All of those insurers, except one, settled claims against them for an alleged breach of a contractual duty to defend the insured. Selective Way, the non-settling insurer proceeded to trial, at which a jury found it liable for $994,719.54 of defense costs from the underlying lawsuit. Selective Way received a $588,152.00 credit against the judgment amount to account for payments made by other insurers for the settlements of the claims against them.

Selective Way then brought a separate action against the other insurers in the circuit court for Baltimore County. It alleged that the amount of defense costs that it has been ordered to pay exceeds its proportionate share of the defense obligation to the insured.

The circuit court entered summary judgment against Selective Way. The court concluded that the contribution claim must fail because the settling insurers had already been released from their contractual obligations before Selective Way asserted the contribution claims.

LAW: The circuit court entertained the premise that Selective Way and the other defendant insurers, at some point in time, may have shared a common obligation to pay for the costs of defending Questar in the construction-defect lawsuit. The court went on to conclude that Selective Way had no right of contribution because, in the court’s view, the alleged “common liability” between Selective Way and the defendants “no longer” existed when Selective Way filed its complaint for contribution.

The court’s analysis highlights two facts in combination: (1) Nationwide released the settling insurers from all claims by Nationwide related to the construction-defect lawsuit and the declaratory judgment action and (2) those releases took effect before Selective Way filed its complaint seeking contribution from those insurers. This analysis suggests that, to the extent that Selective Way may have had any right of contribution from the defendant insurers, Selective Way needed to assert claims for contribution preemptively before the other insurers settled the claims brought by Nationwide.

Maryland law, however, does not make cross-claims mandatory. This court disagrees with the circuit court to the extent that it suggested that Selective Way lost whatever contribution rights it might have had by failing to assert a cross-claim in Nationwide’s declaratory judgment action.

According to the circuit court, the decisive fact was that, by the time that Selective Way filed its complaint seeking contribution, the settling defendants no longer had any

“contractual obligation” to Questar or to Nationwide (which claimed to be subrogated to Questar’s contractual rights). This reasoning seems to condition each insurer’s equitable obligations to other insurers on the continuing existence of the insurer’s contractual obligation toward the insured.

Other courts have concluded that a settlement agreement that absolves an insurer of its contractual obligations to the insured does not extinguish the rights of other insurers to receive equitable contribution from the settling insurer. Given the overwhelming weight of the relevant authorities, the circuit court erred when it determined that the defendants’ settlement agreements with Nationwide extinguished whatever contribution rights Selective Way may have had against those insurers. When this case returns to the circuit court, the defendants are free to advance any other grounds for judgment in their favor.

One group of defendants explain that, in addition to seeking contribution with respect to its liability for the defense costs incurred by Nationwide in defending the construction-defect lawsuit against Questar, Selective Way seeks contribution towards its expected liability (in an amount that has yet to be determined) for certain attorneys’ fees and other costs incurred by Nationwide in prosecuting the declaratory judgment action against Selective Way.

These defendants argue that, at a minimum, this court should affirm the court’s determination that Selective Way is not entitled to contribution with respect to the fees and costs incurred by Nationwide in prosecuting the declaratory judgment action against Selective Way. The court agrees. Selective Way has failed to articulate a theory under which the defendants might be liable for contribution with respect to its liability for the attorneys’ fees and costs that Nationwide incurred in prosecuting the declaratory judgment action to establish that Selective Way breached its duty to defend.

Judgment of the Circuit Court for Baltimore County affirmed in part and reversed in part.