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+"{\"id\": \"1024343\", \"name\": \"SEA WATCH STORES et al., v. COUNCIL OF UNIT OWNERS OF SEA WATCH CONDOMINIUM\", \"name_abbreviation\": \"Sea Watch Stores v. Council of Unit Owners of Sea Watch Condominium\", \"decision_date\": \"1997-11-12\", \"docket_number\": \"No. 77\", \"first_page\": \"622\", \"last_page\": \"623\", \"citations\": \"347 Md. 622\", \"volume\": \"347\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:13:48.715844+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SEA WATCH STORES et al., v. COUNCIL OF UNIT OWNERS OF SEA WATCH CONDOMINIUM.\", \"head_matter\": \"702 A.2d 260\\nSEA WATCH STORES et al., v. COUNCIL OF UNIT OWNERS OF SEA WATCH CONDOMINIUM.\\nNo. 77,\\nSept. Term, 1997.\\nCourt of Appeals of Maryland.\\nNov. 12, 1997.\\nMary T. Keating, Baltimore, for Petitioners.\\nLee H. Ogburn and Kevin F. Arthur, Kramon & Graham, P.A., Baltimore, for Respondent.\\nSubmitted before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ.\", \"word_count\": \"131\", \"char_count\": \"784\", \"text\": \"ORDER\\nThe Court having considered the respondent's motion to dismiss the writ of certiorari on the ground of mootness, it is this 12th day of November, 1997,\\nORDERED, by the Court of Appeals of Maryland, that the motion to dismiss be, and it is hereby, denied, and it is further\\nORDERED, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.\"}"
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+"{\"id\": \"1043473\", \"name\": \"William Smith vs. State of Maryland\", \"name_abbreviation\": \"Smith v. State\", \"decision_date\": \"1887-12-16\", \"docket_number\": \"\", \"first_page\": \"168\", \"last_page\": \"170\", \"citations\": \"68 Md. 168\", \"volume\": \"68\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:31:30.363698+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Smith vs. State of Maryland.\", \"head_matter\": \"William Smith vs. State of Maryland.\\nLottery ticket\\u2014Sec. 171, of Art. 72, of the Revised (Jode\\u2014 Indictment\\u2014Evidence.\\nSection 171 of Article 72, of the Revised Code, enacts that the Courts shall construe liberally the provisions relating to lotteries, \\u201c and shall adjudge all tickets, parts of tickets, certificates, or any other device whatsoever, by which money or any other thing is to be paid or delivered on the happening of any event or contingency in the nature of a lottery, to be lottery tickets.\\u201d Under an indictment charging the traverser with having sold a lottery ticket, evidence that he had sold to the person named in the indictment, pieces of paper commonly known as \\u201cpolicies,\\u201d that entitled the purchaser to receive a specified sum of money on the happening of the contingency of certain numbers being drawn in a lottery of the same date, is relevant to the issue and admissible.\\nAppeal from the Criminal Court of Baltimore.\\nThe case is stated in the opinion of the Court.\\nThe cause was argued before Alvey, C. J., Yellott, Robinson, Irving, Bryan, and McSherry, J., for the appellant, and submitted on brief for the appellee.\\nW. Hollingsworth Whyte, for the appellant.\\nCharles B. Roberts, Attorney-General, for the appellee.\", \"word_count\": \"777\", \"char_count\": \"4560\", \"text\": \"Yellott, J.,\\ndelivered the opinion of the Court.\\nThe appellant was indicted and tried in the Criminal Court of Baltimore City ; the first count in the indictment charging him with having sold a lottery ticket to one William Bailey. On this count there was a verdict of guilty. At the trial the State offered to prove by said Bailey \\\" that he had played policy on the defendant,\\\" and that he paid for and received pieces of paper which are commonly known as policies, and which, on the happening of the contingency of certain numbers being drawn in a lottery of the same date but in another State, would entitle him to the sum of one dollar and eighty cents.\\nThe evidence offered was objected to, but the Court \\u2022ruled that it was admissible, and the traverser excepted to the ruling and took an appeal. The appellant contends that the evidence was not relevant to the issue, because he was indicted for selling a lottery ticket, and, coming into Court to defend himself against this charge., had to encounter evidence tending to show that he had committed another and a different offence. In other words he assumes that the sale of slips of paper commonly known as policies is not the sale of lottery tickets. And he relies on the case of Stewart vs. State, 62 Md., 412, as authority in support of this assumption. But there is an apparent distinction between the case referred to and that presented by this record. In Stewart vs. State the indictment charged the traverser with stealing \\\"certain promissory notes for the payment of money.\\\" The State offered in evidence a \\\" silver certificate,\\\" and this Court decided that a \\\"silver certificate\\\" issued by the United States is not a promissory note within the meaning of section 101, of Article 30 of the Code. But in this case we are relieved from the difficulty of construction, as the legislative enactment, in unambiguous terms, clearly indicates how the statute shall be construed. Sec. 171, Article 72, of- the Eevised Code reads thus:\\n(Decided 16th December, 1887.)\\n\\\"The Courts- shall construe the foregoing provisions relating to lotteries liberally, and shall adjudge all tickets, parts of tickets, certificates, or any other device whatsoever by which money or any other thing is to be paid or delivered on the happening of any event or contingency in the nature of a lottery, to be lottery tickets.\\\"\\nIt is plainly apparent, from the statutory provision thus transcribed, that it is the duty of this Court to decide that any device whatsoever, by which money or any other thing is to be paid or delivered on the happening of any event or contingency in the nature of a lottery, to.be a lottery ticket.\\nThe traverser was indicted for selling a lottery ticket. The proof offered was that he had sold to the person named in the indictment pieces of paper commonly known as \\\" policies,\\\" which entitled the purchaser to receive money on the happening of a certain contingency dependent upon the drawing of numbers in a lottery. The Code designates any such device as a lottery ticket. It is so declared to be by statute. The evidence offered was therefore relevant to the issue and admissible. As the Court below committed no error in the ruling which forms the foundation for this appeal,, its ruling should be affirmed.\\n. Ruling affirmed, and cause remanded.\"}"
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+"{\"id\": \"1204795\", \"name\": \"Henry J. KROLL v. Kenneth NEHMER\", \"name_abbreviation\": \"Kroll v. Nehmer\", \"decision_date\": \"1998-02-11\", \"docket_number\": \"No. 53\", \"first_page\": \"616\", \"last_page\": \"632\", \"citations\": \"348 Md. 616\", \"volume\": \"348\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:25:04.204849+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry J. KROLL v. Kenneth NEHMER.\", \"head_matter\": \"705 A.2d 716\\nHenry J. KROLL v. Kenneth NEHMER.\\nNo. 53,\\nSept. Term, 1997.\\nCourt of Appeals of Maryland.\\nFeb. 11, 1998.\\nAlfred E. Clasing, III (Cannoles and Clasing, Chartered, on brief), Baltimore, for appellant.\\nBrice Dowell, Towson, for appellee.\\nArgued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, J. (Retired, Specially Assigned).\", \"word_count\": \"5445\", \"char_count\": \"31902\", \"text\": \"WILNER, Judge.\\nMargaret Binco died on December 19, 1994, leaving four wills\\u2014one dated July 24, 1980, a second dated April 12, 1985, a third dated June 28, 1990, and a fourth dated October 27, 1994. We are concerned here only with the second will\\u2014the 1985 will.\\nThe 1980 will, it appears, had been altered, and, although it was at one time offered for probate, no one now contends that it has any validity. When Ms. Binco drew the 1990 will, she wrote on the back of her 1985 will \\\"VOID\\u2014NEW WILL DRAWN UP 6-28-90.\\\" The 1990 and 1994 wills, all parties agree, are ineffective because they lack the signatures of attesting witnesses, as required by Maryland Code, Estates and Trusts Article, \\u00a7 4-102. Accordingly, if the 1985 will was effectively revoked by Ms. Binco, she would have died intestate, in which event appellant, her brother and closest surviving relative, who was not named as a beneficiary under the 1985, 1990, or 1994 wills, would inherit. The dispute now before us is therefore between appellant, urging that the 1985 will had been revoked, and appellee, the person who offered that will for probate and who was appointed as personal representative to administer the estate under the will, who contends that the 1985 will had not been effectively revoked.\\nOver appellant's objection, the Orphans' Court for Baltimore County, apparently applying the doctrine of dependent relative revocation, admitted the 1985 will to probate, notwithstanding its apparent revocation by Ms. Binco. The Circuit Court for Baltimore County affirmed that decision. We granted certiorari on our own initiative before any proceedings in the Court of Special Appeals to consider whether the lower courts erred in applying the doctrine and finding the 1985 will to be valid. We believe that they did err and shall therefore reverse.\\nDependent Relative Revocation\\nSection 4-105 of the Estates and Trusts Article permits a will to be revoked by \\\"cancelling . the same, by the testator himself____\\\" It is clear, and neither party now suggests otherwise, that, by writing on the 1985 will \\\"VOID\\u2014NEW WILL DRAWN UP 6-28-90\\\" and retaining the will, so marked, among her papers, Ms. Binco intended to revoke that will and that, unless saved by the doctrine of dependent relative revocation, that will was effectively revoked.\\nAs we indicated in Arrowsmith v. Mercantile-Safe Deposit, 313 Md. 334, 343, 545 A.2d 674, 679 (1988), no reported Maryland appellate decision has ever applied that doctrine. The doctrine, in its most general form, is described in 2 William J. Bowe & Douglas H. Parker, Page on the Law of Wills \\u00a7 21.57 at 446 (rev. ed.1960):\\n\\\"In general the doctrine of dependent relative revocation applies to invalidate the revocation of a will where it is shown that the revocation was conditioned on the occurrence of certain facts which never came to pass or upon the existence or nonexistence of circumstances which were either absent or present contrary to the condition.\\\"\\nAs most commentators, including the revisors of Page's opus, point out, in applying the doctrine, courts often speak in terms of a conditional revocation, regarding the revocation as conditioned on the existence of a set of facts or circumstances that the testator assumes to exist, when, in reality, the revocation is itself unconditional but is rather based on a mistaken frame of mind\\u2014a mistake of either fact or law. They give as an example of a mistake of fact the circumstance in which a testator physically destroys his will believing that the document he is destroying is not his will but some other instrument. In that circumstance, they suggest, the necessary intention to revoke the will is clearly lacking, and a \\\"mistake of this sort prevents revocation, although all the other elements are present.\\\" Id. at 448. There is no need in that situation to construe the revocation as a \\\"conditional\\\" one\\u2014 the presumed condition being that the document being destroyed is not the testator's will\\u2014for a mistake of that kind suffices on its own to justify granting relief.\\nThe more troublesome branch of the doctrine is where the mistake is not in the act of revocation itself but in the inducement for the act, arising from facts or circumstances extrinsic to the instrument revoked. This often takes the form of a mistake of law or of legal consequences. The most common instance of this form is \\\"where a testator revokes a later will in the belief that he can thus put a prior will into effect, or where he revokes a prior instrument thinking that a later instrument has been executed in due form and that no other facts exist which will prevent such instrument from operating as a later will.\\\" Id. at 448. See also Joseph Warren, Dependent Relative Revocation, 33 Harv. L.Rev. 337, 342 (1920).\\nIt is possible, of course, for a testator to make clear that his revocation of an existing will is conditioned on the legal validity or effectiveness of some other instrument, but, as the Page authors note, in most instances the testator has simply assumed that state of affairs and has articulated no such condition. In such cases, the revocation is really less of a conditional one than one based on a mistake of law which, if regarded in that manner, would not normally suffice to avoid an otherwise deliberate act. Some courts, in an effort to effectuate what they presume would have been the testator's intent had he known the true circumstances, have thus constructed the fiction of a conditional, or dependent relative, revocation, as a more plausible theory upon which to provide relief. See George E. Palmer, Dependent Relative Revocation and its Relation to Relief for Mistake, 69 Mich. L.Rev. 989-90 (1970-71):\\n\\\"The one part of the law of wills in which courts often do give relief for mistake is in connection with revocation by holding that an apparent revocation was ineffective because of mistake in underlying assumptions. Rarely, if ever, however, does a modern court rest its decision squarely on its power to relieve for mistake. Instead, the testator's intent to revoke is regarded as conditioned upon the truth of the matter in question; since the condition has not been met the conclusion is reached that there was no revocation for lack of the requisite intent. This is the doctrine of dependent relative revocation. It rests upon an analysis that, with few exceptions, is found nowhere else in the law relating to mistake in underlying assumptions.\\\"\\n(Emphasis added.)\\nThis theory, almost peculiar to revocations of wills, gained initial currency in English decisions. Joseph Warren, Dependent Relative Revocation, supra, 33 Harv. L.Rev. at 337. As Page, and increasingly many courts, have warned, however, the testator's true intentions in a mistake of law-implied condition context are often ambiguous\\u2014harder to discern \\\"with real clarity and authority\\u2014and, before applying legal fictions based on undocumented presumptions to accept as valid a will that has otherwise been facially revoked in accordance with all legal prerequisites, courts need to examine the circumstances with great care and caution. We shall turn now to those circumstances, as they appear in this case.\\nThe Four Wills and the Proceedings Below\\nWhen Ms. Binco died, her only heir was her brother, Henry J. Kroll, the appellant. Mr. Kroll was not mentioned as a beneficiary in any of the three later wills; the 1980 will is not in the record before us, but, from a comment made during the hearing in the circuit court, it appears that he was left a car in that will. The 1985 will was drawn by an attorney and made a complete disposition of Ms. Binco's estate. She left her jewelry, furs, and furniture to five individuals\\u2014Charmaine Kilmartin, Esther Strebech, Betty Ball, Joan Romanowski, and Phyllis Butler; a credit union account was left to a sixth individual; AT & T stock was bequeathed equally to two charities\\u2014First Church of God and Lutheran Social Services of Maryland; and Standard Oil Company stock was left to Spay and Neuter All Pets, Inc. St. John's Lutheran Church, the First Church of God, and Spay and Neuter All Pets, Inc. shared equally in the residuary bequest. Ms. Romanowski was named as personal representative.\\nThe 1990 will, which was handwritten and contained a number of margin notes and interlineations, had no residuary clause, so it is not clear whether that will made a complete disposition of Ms. Binco's estate. None of the individuals mentioned in the 1985 will were included in the 1990 will. Some of the beneficiaries are referred to only by their first names\\u2014Ms. Binco's house and certain stock, for example, is left to \\\"Richard and Sharyn\\\"; clothing is left to \\\"Chris\\\"; mink stoles are left to \\\"Bea\\\" and \\\"Pat.\\\" Other bequests suggest that \\\"Richard\\\" is Richard Kroll, appellant's son and Ms. Binco's nephew. In a Notice of Hearing sent later by the Register of Wills, \\\"Sharyn\\\" is identified as Sharyn L. Trent, but it is not clear from the record what, if any, relationship she has with Richard Kroll or with Ms. Binco. Pat Sonneborn, Bea Reynolds\\u2014possibly the \\\"Pat\\\" and \\\"Bea\\\" named as legatees\\u2014along with a \\\"Hank,\\\" who might be appellant, are listed as executors. The First Church of God is mentioned in the will, but it is not at all clear what, if any, bequest is made to that charity. One or more of the interlineations appear to have been made after the initial will was written. A provision stating \\\"Pay Norman Lauenstein\\u2014Atty,\\\" for example, is crossed out, and, in the margin is written \\\"Paid Him.\\\"\\nThe 1994 will is also a handwritten document, containing no residuary clause. At the top, Ms. Binco declares it as her Last Will and Testament and states that she \\\"would like to designate the following items to those mentioned below.\\\" Her car, which in the 1990 will went to Richard Kroll, was given to Pat Sonneborn. Her house, which was formerly to go to Sharyn and Richard, was left to Beate Reynolds. With the exception of a bedroom set and table that were left to Pat Sonneborn, the furniture in the house was left to Ms. Reynolds as well. A credit union account was left to Ms. Sonne-born and a Rosedale Federal account was left to Ms. Reynolds. Certain stock was bequeathed 50% to Richard Kroll, 25% to Ms. Sonneborn, and 25% to Ms. Reynolds. One thousand dollars of insurance was left to the First Church of God, and another $1,000 was left to Friends of Animals. Ms. Sonneborn and Richard Kroll were designated as executors.\\nNeither the 1990 will nor the 1994 will make any reference to any earlier will, and, as noted, neither contains the signatures of any attesting witnesses, although the 1990 will has a place designated for witnesses.\\nUnfortunately, the record of proceedings in the orphans' court transmitted to this Court does not constitute the complete file and is somewhat difficult to follow, although we can piece together essentially what occurred from what we have and from what the parties assert in their briefs. At some point after Ms. Binco's death, Richard Kroll presented the 1990 will for judicial probate. Subsequently, appellee presented the 1980 will for judicial probate. At a hearing held on March 14, 1995, appellant produced the 1985 will which, over his objection, was admitted to probate. Appellee, identified as the Pastor of St. Johns's Lutheran Church, was appointed as personal representative. Appellant then filed a caveat to the will contending, among other things, that Ms. Binco did not have sufficient mental capacity to make that will, that the contents of the will had not been read or explained to her, that the will was procured by fraud and undue influence, and that it had, in any event, been subsequently revoked. In an amended petition and caveat, he asked that those issues be tried in the circuit court. On August 9, 1995, the orphans' court dismissed appellant's amended petition and caveat, without assigning any reasons. In that same order, the court formally rejected the 1990 will on the ground that \\\"it does not satisfy the statutory requirement of a valid will and is not in good form.\\\"\\nAppellant noted an appeal to the circuit court but in that court effectively abandoned any complaint with respect to Ms. Binco's testamentary capacity or to any fraud or undue influence. The sole question presented to the circuit court was whether the orphans' court erred in applying the doctrine of dependent relative revocation and admitting the 1985 will to probate, notwithstanding its apparent revocation. After a brief evidentiary hearing, the court entered an order affirming the admission of the 1985 will to probate. The basis of its ruling was that \\\"the revocation of the April 12, 1985 Will was so related to the making of the June 28, 1990 Will as to be dependent on it. Therefore, since the June 28, 1990 Will was invalid, the April 12, 1985 Will, whose contents can be ascertained, should be given effect.\\\"\\nApplication of Dependent Relative Revocation\\nAt issue here is the branch of the dependent relative revocation doctrine that, in effect, disregards conduct otherwise qualifying as a revocation of a will when that conduct, in the court's view, was based on an assumption by the testator that the will being revoked would be immediately replaced by a valid new will. It is the \\\"mistake of law\\\" branch of the doctrine. Two overlapping and confluent assumptions underlie the theory. One was expressed in a 1929 Annotation, A.G.S., Effect of Testator's Attempted Physical Alteration of Will After Execution, 62 A.L.R. 1367, 1401 (1929):\\n\\\"It is based upon the presumption that the testator performed the act of revocation with a view and for the purpose of making some other disposition of his property in place of that which was canceled, and that there is, therefore, no reason to suppose that he would have made the change if he had been aware that it would have been wholly futile, but that his wishes with regard to his property, as expressed in his original will, would have remained unchanged, in the absence of any known and sufficient reason for changing them.\\\"\\nSee also the 1952 update of that Annotation, L.S. Tellier, Effect of Testator's Attempted Physical Alteration of Will After Execution, 24 A.L.R.2d 514, 554 (1952).\\nA second, or perhaps simply a different articulation of the same, theory offered in support of the doctrine comes into play when, as is often the case, the effect of not disregarding the revocation is for the decedent's estate, or some part of it, to pass intestate. See In re Macomber's Will, 274 A.D. 724, 87 N.Y.S.2d 308, 312 (1949): \\\"The rule seeks to avoid intestacy where a will has once been duly executed and the acts of the testator in relation to its revocation seem conditional or equivocal.\\\" See also Goriczynski v. Poston, 248 Va. 271, 448 S.E.2d 423, 425 (1994). The law disfavors intestacies and requires that, whenever reasonably possible, wills be construed to avoid that result. Crawford v. Crawford, 266 Md. 711, 719, 296 A.2d 388, 392 (1972). Courts have made it clear, however, that the law's preference for a testate disposition is always subordinate to the intention of the testator, whether ascertained or presumed. See Charleston Library Soc. v. Citizens & Southern Nat. B., 200 S.C. 96, 20 S.E.2d 623, 632 (1942).\\nAlthough, as noted, this Court has never applied the doctrine, we have discussed aspects of it in three cases. In Semmes v. Semmes, 7 H. & J. 388 (Md.1826), the testator had a will leaving his entire estate to his wife, in trust for herself and his infant son until the child reached 21, at which point one-half of the personal property was to go to her absolutely. When his wife predeceased him, the testator used a pen to obliterate his signature and those of the attesting witnesses and to write on the bottom of the will, \\\"In consequence of the death of my wife, it is become necessary to make another will.\\\" Id. at 389. Unfortunately, he died before making another will. The orphans' court refused to probate the existing will, and this Court affirmed that judgment. Our predecessors discussed the doctrine of dependent relative revocation as it had been applied in some English cases, notably Onions v. Tyrer, 1 P. Williams, 343 (1717), characterizing the doctrine as based on a mistake principle:\\n\\\"The cancelling of a will is said to be an equivocal act, and not to effect a revocation, unless it is done animo revocandi. And where it is a dependent relative act, done with reference to another, which is meant and supposed to be good and effectual, it may be a revocation or not, as to that to which it relates is efficacious or not. As where a man having duly executed one will, afterwards causes another to be prepared, and supposing the second to be duly executed, under that impression alone cancels the first. In such case it has been held, that on the second turning out not to have been duly executed, the cancelling the first, being done by mistake and misapprehension, would not operate as a revocation.\\\"\\n7 H. & J. at 390-91.\\nHaving so characterized the doctrine, the Court made clear that the doctrine would never apply \\\"where a man has deliberately and intentionally cancelled his will, as in this case, in the entire absence of all accident or mistake, notwithstanding he may, at the time, have intended to make another will.\\\" Id. at 391. We accepted, from the evidence, that the testator did not intend to die intestate but held that \\\"however that may be, we cannot make a will for him.\\\" Id. On its facts, Semmes was similar to the situation in In re Ememecker's Estate, supra, 218 Pa. 369, 67 A. 701, where the revocation also was not actually accompanied by the preparation of a new, albeit ineffective will..\\nOur second brush with the doctrine was in Safe Dep. & Trust Co. v. Thom, 117 Md. 154, 83 A. 45 (1912), which presented somewhat the same situation as Semmes, although with different facts. The testatrix, who had five children, had signed a valid will in March, 1907. Item I of that will left $10,000 in cash to four of the children; Item II left $10,000 in trust for the fifth child, who apparently was mentally disabled. After providing for some additional small bequests, the testatrix left the residue of her estate in trust, with one-fifth of the income to be paid quarterly to each of the five children during their lives (the disabled son's share to be paid to his trustee), and a one-fifth share of the corpus to be paid to the children of any deceased child. In April, 1910, the testatrix informed her attorney that she wanted to change her will to leave the one-fifth shares to the four competent children outright and not in trust and to make a number of other minor bequests. She said that she would prepare and send to the lawyer a list of those bequests. In June, 1910, she informed him that she had rubbed out the first provision in her will, leaving the competent children $10,000 each, since they would be getting their full one-fifth share absolutely. The lawyer stated that he told the testatrix not to attempt to change the will in that manner.\\nThe testatrix died without ever making a new will or sending the lawyer the list of new bequests. Among her papers was the 1907 will on which the names of the four children in Item I had been rubbed but the letters then relined or retraced in pencil. Accompanying the will, in a sealed envelope, was a letter to the lawyer containing the list of bequests. With the agreement of all parties, the trustee named in the will offered the will for probate, following which two of the competent children petitioned the orphans' court to declare the will cancelled and revoked by reason of the erasure. The court, over objection, granted the petition and denied probate. We reversed.\\nAlthough, as in Semmes, we discussed the doctrine of dependent relative revocation, that was not the basis for our decision. Rather, we concluded from the evidence that there was no revocation of the will in the first instance. The act that might be regarded as a revocation\\u2014the attempt to obliterate a provision\\u2014was incomplete, \\\"not in the sense that the clause was not entirely rubbed out or obliterated, but in the sense that that which was begun was not finished and was abandoned.\\\" Id. at 163, 83 A. 45. Before completing any obliteration, we noted, the testatrix changed her mind and retraced the letters rubbed, thereby indicating an intent not to revoke the instrument.\\nOur most recent consideration of the doctrine came in Arrowsmith v. Mercantile-Safe Deposit, supra, 313 Md. 334, 545 A.2d 674. The testator there left three relevant wills, drawn, respectively in 1966, 1976, and 1982, the earlier wills each being expressly revoked by a provision in the next succeeding will. All three wills purported to exercise a power of appointment given to the testator through a 1953 deed of trust from his mother. When the testator died in 1983, a question was raised whether the appointment in the 1982 will violated the rule against perpetuities. Indeed, the circuit court held that there was such a violation, a conclusion that we affirmed. The power as exercised in the 1966 will did not present a perpetuities problem, and, in an effort to save the testamentary disposition and not have the property distributed under the 1953 deed of trust in default of an appointment, the parties who would be benefited by that approach asked the court to sustain the 1966 provision under a theory of dependent relative revocation. The theory seemed to be that, had the testator been aware that his exercise of the power in the 1976 and 1982 wills would be ineffective, he would not have revoked the 1966 provision.\\nAs was the case in Semmes and Safe Dep. & Trust Co., it was not necessary for us in Arrowsmith to determine whether we would accept the doctrine in any of its manifestations, for even if accepted into Maryland law, it could not be applied as urged. At 345, 545 A.2d 674, we noted that \\\"[pjlucking the perpetuities saving clause from the 1966 will and inserting it in the 1982 will is inconsistent with the theoretical justification for the doctrine.\\\" Harking back to what the Court said in Semmes, Judge Rodowsky pointed out that \\\"this Court is neither empowered to write a will for [the testator] nor structure a will that differs from any will which [the testator] ever executed.\\\" Id. at 350, 545 A.2d 674.\\nThis case presents for the first time a situation in which the doctrine might be applied and in which other courts have applied it. It is not a situation, however, in which we believe it appropriate to apply the doctrine.\\nIt is important to keep in mind that, in the context now before us, the doctrine rests on a fiction that is, in turn, supported only, by an assumption as to what Ms. Binco would have done had she known that her 1990 will was invalid. As Professor Warren observed in his law review article, \\\"[t]he inquiry should always be: What would the testator have desired had he been informed of the true situation?\\\" Joseph Warren, Dependent Relative Revocation, supra, 33 Harv. L.Rev. at 345. The most rational and obvious answer to that question, of course, is that the testator would have desired to make the new instrument effective, and, if presumed intent were to control, the court would simply overlook the statutory deficiency and probate the new will, rather than overlook the legal effect of an otherwise deliberate revocation and probate the old one. That is an option the law does not permit, however. We thus must look for secondary, fictional intentions never actually possessed by Ms. Binco. The real question is what Ms. Binco would have wanted to do if she had been told that she was unable to make a new will: would she have preferred her estate to pass under the existing (1985) will to persons she had decided to remove as beneficiaries, or would she have preferred that her estate pass intestate to her brother?\\nIn attempting to arrive at a reasonable answer to that kind of question, courts have considered all of the relevant circumstances surrounding the revocation\\u2014the manner in which the existing will was revoked, whether a new will was actually made and, if so, how contemporaneous the revocation and the making of the new will were, parol evidence regarding the testator's intentions, and the differences and similarities between the old and new wills. The courts recognize that the question is always one of presumed intent. In many cases, because the other evidence is either inconclusive or nonexistent, the principal focus is on the differences and similarities between the two instruments. In that regard, the courts have generally refused to apply the doctrine unless the two instruments reflect a common dispositive scheme. See In re Lubbe's Estate, 142 So.2d 130 (Fla.Dist.Ct.App.1962), overruled on other grounds by In re Estate of Johnson, 359 So.2d 425 (Fla.1978); In re Heazle's Estate, 72 Idaho 307, 240 P.2d 821 (1952); Wallingford's Ex'r v. Wallingford's Adm'r, 266 Ky. 723, 99 S.W.2d 729 (1936); In re Houghten's Estate, 310 Mich. 613, 17 N.W.2d 774 (1945); Watson v. Landvatter, 517 S.W.2d 117 (Mo.1974); Guardianship & Conserv. of Estate of Tennant, 220 Mont. 78, 714 P.2d 122 (1986); Matter of Estate of Patten, 179 Mont. 299, 587 P.2d 1307 (1978); Flanders v. White, 142 Or. 375, 18 P.2d 823 (1933); In re Dougan's Estate, 152 Or. 235, 53 P.2d 511 (1936); In re Crooks' Estate, 388 Pa. 125, 130 A.2d 185 (1957); Chambers v. Chambers, 542 S.W.2d 901 (Tex.Civ.App.1976); and cf. Ruth v. Ruth, 123 A.2d 132 (Del.Ch.1956); but compare Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) and In re Macomber's Will, 274 A.D. 724, 87 N.Y.S.2d 308 (1949).\\nConversely, courts that have applied the doctrine have looked to the similarity of the new and old dispositive schemes as a basis for concluding that the testator indeed intended the revocation to be conditional and that he would have preferred to have his estate pass under the old .will rather than through an intestacy. See In re Kaufman's Estate, 25 Cal.2d 854, 155 P.2d 831 (1945); In re Cuneo's Estate, 60 Cal.2d 196, 32 Cal.Rptr. 409, 384 P.2d 1 (1963); La Croix v. Senecal, 140 Conn. 311, 99 A.2d 115 (1953); In re Nutting's Estate, 82 F.Supp. 689 (D.D.C.1949); In re Jones, 352 So.2d 1182 (Fla.Dist.Ct.App.1977); Blackford v. Anderson, 226 Iowa 1138, 286 N.W. 735 (1939); In re McKay's Estate, 347 Mich. 153, 79 N.W.2d 597 (1956); Charleston Library Soc. v. Citizens & Southern Nat. B., 200 S.C. 96, 20 S.E.2d 623 (1942); Bell v. Timmins, 190 Va. 648, 58 S.E.2d 55 (1950).\\nIn the case before us, Ms. Binco indicated a clear intent to revoke her 1985 will by writing VOID on the back of it. Unlike the situation in Safe Dep. & Trust Co., supra, 117 Md. 154, 88 A. 45, there is nothing ambiguous about her intent to revoke that will. Also unlike that case and Semmes, however, she did contemporaneously handwrite a new will, thereby indicating with some clarity that her act of revocation was based on her mistaken belief that the new -will was valid and would replace the old one. The confluent inference, that she intended to revoke the 1985 will based on her belief that it would be superseded by the 1990 will, does not alone justify application of the doctrine of dependent relative revocation. We must still search for that fictional presumed intent of what she would have done had she been informed that she could not make a new will. There was some evidence that Ms. Binco did not have a good relationship with her brother and would not have desired that he take any part of her estate. That evidence was contradicted, however, by testimony that appellant and his sister did have a cordial relationship.\\nWe turn, then, to a comparison of the 1985 and 1990 wills and, as noted, we find two very different dispositive schemes. Apart from the fact that the 1990 will did not contain a residuary clause and may not have effected an entirely testate disposition, the fact is that, with the possible exception of the First Church of God, whose status under the 1990 will is, at best, unclear, none of the beneficiaries under the 1985 will were named in the 1990 will. The 1990 will replaced them all, indicating that Ms. Binco did not wish any of them (again with the possible exception of the First Church of God) to be benefitted. The effect of applying the doctrine and disregarding her revocation, however, is precisely to do what she clearly did not want done\\u2014to leave her estate to people she had intended to disinherit. We cannot fairly presume such an intent on her part; nor should the lower courts have done so.\\nWe need not decide in this case whether the doctrine of dependent relative revocation, as articulated above, is part of Maryland law and, if it is, the circumstances under which it may properly be applied. It cannot be applied under the circumstances of this case.\\nJUDGMENT REVERSED; CASE REMANDED TO CIRCUIT COURT FOR BALTIMORE COUNTY WITH INSTRUCTIONS TO REVERSE ORDER OF ORPHANS' COURT ADMITTING 1985 WILL TO PROBATE; APPEL-LEE TO PAY THE COSTS.\\nELDRIDGE, J., concurs in the result only.\\n. In the orphans' court, appellee, who offered the 1985 will for probate and who was appointed as personal representative under that will, denied that the handwritten statement purporting to revoke the will \\\"was that of the decedent.\\\" In a memorandum filed in the circuit court, he assumed, for purposes of the memorandum, but did not concede, that the writing was that of Ms. Binco. In his brief in this Court, however, he acknowledges that she wrote those words. We shall take that as a belated, but nonetheless effective, judicial admission.\\n. In his law review article, Professor Palmer notes that the doctrine has generally not been applied \\\"where the revocation was not connected with some alternative plan for succession to the decedent's estate or a part of it, and the plan failed to take effect.\\\" Dependent Relative Revocation and its Relation to Relief for Mistake, supra, 69 Mich. L.Rev. at 991. Even with that \\\"outer limit,\\\" he notes that, in most cases where the doctrine has been applied, the testator actually attempted to make a substitute disposition by will and that an \\\"area of doubt\\\" lies \\\"between the frustrated attempt to dispose and the uncompleted plan to dispose which had not reached the stage of an attempt.\\\" Id. at 991. See, for example, Semmes v. Semmes, 7 H. & J. 388 (Md.1826), In re Emernecker's Estate, 218 Pa. 369, 67 A. 701 (1907).\\n. In the 1980 will which, as noted is not in the record before us but which is in that part of the official file that was retained by the Orphans' Court for Baltimore County and not sent to the circuit court, Ms. Trent is identified as Ms. Binco's niece.\\n. The manner in which the existing will was revoked can be significant in determining whether the testator actually intended a revocation, whether conditionally or unconditionally. See In re Roeder's Estate, 44 N.M. 578, 106 P.2d 847 (1940).\\n. Courts generally will not apply the doctrine to save a revoked will when the testator, notwithstanding his announced intention to do so, in fact fails to make a new will. See Roberts v. Fisher, 230 Ind. 667, 105 N.E.2d 595 (1952); Matter of Estate of Cox, 190 Mont. 436, 621 P.2d 1057 (1980); Matter of Estate of Ausley, 818 P.2d 1226 (Okla.1991); In re Estate of Hall, 7 Wash.App. 341, 499 P.2d 912 (1972); In re Rauchfuss' Estate, 232 Wis. 266, 287 N.W. 173 (1939). As noted, we followed that approach in Semmes v. Semmes, supra, 7 H. & J. 388.\"}"
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+"{\"id\": \"12315155\", \"name\": \"JAMES, Demarco G. v. STATE of Maryland\", \"name_abbreviation\": \"James v. State\", \"decision_date\": \"2017-06-21\", \"docket_number\": \"Pet. Docket No. 79\", \"first_page\": \"367\", \"last_page\": \"367\", \"citations\": \"453 Md. 367\", \"volume\": \"453\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:30:00.215805+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES, Demarco G. v. STATE of Maryland\", \"head_matter\": \"162 A.3d 843\\nJAMES, Demarco G. v. STATE of Maryland\\nPet. Docket No. 79,\\nSept.Term, 2017\\nCourt of Appeals of Maryland.\\nJune 21, 2017\", \"word_count\": \"43\", \"char_count\": \"251\", \"text\": \"Opinion of the Court of Special Appeals unreported (No. 272, Sept. Term, 2015).\\nPetition for writ of certiorari denied\"}"
\ No newline at end of file
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+"{\"id\": \"12489537\", \"name\": \"Grant Agbara LEWIS v. STATE of Maryland\", \"name_abbreviation\": \"Lewis v. State\", \"decision_date\": \"2017-04-24\", \"docket_number\": \"No. 61, Sept. Term, 2016\", \"first_page\": \"982\", \"last_page\": \"1004\", \"citations\": \"158 A.3d 982\", \"volume\": \"158\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-27T20:57:14.014548+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Grant Agbara LEWIS\\nv.\\nSTATE of Maryland\", \"head_matter\": \"Grant Agbara LEWIS\\nv.\\nSTATE of Maryland\\nNo. 61, Sept. Term, 2016\\nCourt of Appeals of Maryland.\\nApril 24, 2017\\nArgued by John N. Sharifi, Assigned Public Defender (Law Offices of John N. Sharifi, LLC, Rockville, MD), on brief, for Petitioner.\\nArgued by Sarah Page Pritzlaff, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore,. MD), on brief, for Respondent.\\nArgued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.\", \"word_count\": \"12256\", \"char_count\": \"72808\", \"text\": \"Watts, J.\\nThe Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings authorizes a Maryland trial court to certify that a person outside Maryland is a material witness in a pending criminal case in Maryland, and directs that such a certification be presented to a judge in another State. See Md. Code Ann., Cts. & Jud. Proc. (1973, 2013 Repl. Vol.) (\\\"CJ\\\") \\u00a7 9-303(a). A provision of the Act, CJ \\u00a7 9-304(a), provides for exemption from arrest or service of process for such an out-of-State witness as follows:\\nExemption of person coming into State to attend and testify. -If a person comes into this State in obedience to a summons directing him [or her] to attend and testify in this State he [or she] shall not while in this State pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his [or her] entrance into this State under the summons.\\nThis case requires us to determine whether an out-of-State witness who enters Maryland pursuant to a summons, and is then charged with crimes, waives the issue of a violation of CJ \\u00a7 9-304(a) by failing to raise the issue before trial.\\nHere, Grant Agbara Lewis (\\\"Lewis\\\"), Petitioner, a Colorado resident, entered Maryland pursuant to a summons to testify at the murder trial of Alexander Bennett (\\\"Bennett\\\"). On the day that his trial was scheduled to begin, Bennett entered into a guilty plea agreement, pursuant to which he made a proffer inculpating Lewis in the murder of Heidi Bernadzikowski (\\\"Bernadzikowski\\\"). Afterward, Lewis was arrested in Maryland and, in the Circuit Court for Baltimore County (\\\"the circuit court\\\"), the State, Respondent, charged Lewis with crimes that were related to the murder.\\nAt no point did Lewis assert the issue of a violation of CJ \\u00a7 9-304(a) in the circuit court. Instead, Lewis raised the issue for the first time on appeal. The Court of Special Appeals held that Lewis waived any issue as to a violation of CJ \\u00a7 9-304(a). We agree, and hold that an out-of-State witness who enters Maryland to testify at a trial in a criminal case pursuant to a summons under the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and who is arrested and charged with a crime in Maryland, waives the issue of a violation of CJ \\u00a7 9-304(a) by failing to raise the issue pretrial as required by Maryland Rule 4-252, which governs mandatory pretrial motions and matters that are capable of determination before trial, without trial of the general issue. We decline to exercise our discretion pursuant to Maryland Rule 8-131(a) to review the matter.\\nBACKGROUND\\nState v. Bennett and Filings in the Colorado Court\\nThe facts and circumstances giving rise to this unusual case are summarized below.\\nIn the circuit court, the State charged Bennett with first-degree murder of Bernadzikowski and other crimes. In State v. Bennett , the State filed an \\\"Application to Secure Attendance of a Person Outside the State as a Witness in a Criminal Action in the State\\\" under CJ \\u00a7 9-303, seeking to secure the attendance of Lewis, a Colorado resident, as a witness at Bennett's trial. The circuit court issued a \\\"Certificate for Attendance of Witness from Colorado State,\\\" certifying that Lewis was a material witness in State v. Bennett .\\nIn the District Court of City and County of Denver, Colorado (\\\"the Colorado court\\\"), the District Attorney for the Second Judicial District of Colorado filed a \\\"Motion for Hearing and Appearance of Witness for Witness To Testify in Another State,\\\" advising the Colorado court of the attempt to secure Lewis's presence as a witness in Maryland and noting that, under Colorado law, Lewis had a right to a hearing to determine whether he was a material and necessary witness in State v. Bennett and whether it would cause undue hardship to be compelled to testify at Bennett's trial. In the motion, the District Attorney stated that Lewis would be required to attend Bennett's trial for two days, and possibly afterward if the circuit court so ordered; and the District Attorney requested that the Colorado court issue a summons ordering Lewis to testify at Bennett's trial.\\nThe Colorado court issued an \\\"Order for Hearing and Appearance of Witness, and for Contingent Summons for Witness to Testify in Another State[.]\\\" In the order, the Colorado court scheduled a hearing, at which Lewis would be required to show cause why he should not be compelled to testify at Bennett's trial; and ordered that the show cause hearing would be vacated if the District Attorney filed an Acceptance of Service and Waiver of Hearing signed by Lewis. The Colorado court found that Lewis was a material and necessary witness in State v. Bennett , and that compelling Lewis to testify at Bennett's trial would not cause undue hardship. The Colorado court ordered Lewis to testify at Bennet's trial and stated:\\n[T]he laws of the [S]tate in which the prosecution is pending, and of any other [S]tate through which [Lewis] may be required to pass by ordinary course of travel, will give to [Lewis] protection from arrest and service of civil and criminal process in connection with matters which arose before entering into that [S]tate under this summons[.]\\nIn the Colorado court, the District Attorney Investigator filed a \\\"Certificate of Service,\\\" averring that he had served on Lewis, among other documents, the Motion for Hearing and Appearance of Witness for Witness To Testify in Another State, the Order for Hearing and Appearance of Witness, and for Contingent Summons for Witness to Testify in Another State, the Application to Secure Attendance of a Person Outside the State as a Witness in a Criminal Action in the State, and the Certificate for Attendance of Witness from Colorado State.\\nIn the Colorado court, Lewis filed an \\\"Acceptance of Service and Waiver of Hearing,\\\" in which he acknowledged service of the above-listed documents, waived his right to a show cause hearing, and agreed to testify at Bennett's trial. On March 18, 2014, the day on which Bennett's trial was scheduled to begin, Bennett pled guilty in exchange for a sentence of life imprisonment with all but thirty years suspended. On the same day, Bennett agreed to testify about his involvement in the murder and made a proffer in which he implicated Lewis as an accomplice to Bernadzikowski's murder. On March 19, 2014, after an investigation, Lewis, who had been in Maryland to testify against Bennett, was arrested. At the time of his arrest, Lewis did not assert the exemption from arrest under CJ \\u00a7 9-304(a).\\nCircuit Court Proceedings in Lewis v. State\\nIn the circuit court, the State charged Lewis with first-degree murder of Bernadzikowski and conspiracy to commit first-degree murder of Bernadzikowski. The evidence adduced at trial showed that Bennett and Lewis had been childhood friends in Colorado and attended the Denver School of Performing Arts together. In 2000, the two devised a plan to make money that involved placing online advertisements for \\\"cleaning services,\\\" a cover term for contract killings. According to Lewis, the pair planned to defraud potential customers by taking money and not actually performing any murders. By contrast, according to Bennett, there was no intent to deceive; he and Lewis intended to commit murder in exchange for payment.\\nSpecifically, at trial, as a witness for the State, Bennett testified that Lewis was responsible for designing and placing the online advertisement. In or before Spring 2000, as a result of the internet advertisement, Stephen Cooke (\\\"Cooke\\\"), a man living in Dundalk, Maryland contacted Lewis and requested a contract killing of Bernadzikowski, who was his roommate and girlfriend, for $60,000. Cooke wanted Bernadzikowski's death to look like an accident so that he would be able to collect the proceeds from an insurance policy on Bernadzikowski's life. Cooke provided his address to Lewis, who gave Bennett a map from Baltimore/Washington International Airport (\\\"BWI\\\") to Cooke's and Bernadzikowski's house. Natalie Ott (\\\"Ott\\\"), one of Bennett's high school classmates, drove him and Lewis to an airport in Colorado. Using a ticket that Lewis had bought, Bennett flew from Colorado to BWI. Because he had no money, Bennett started walking from BWI to Dundalk. While Bennett was walking along a highway, a law enforcement officer stopped him. Bennett told the law enforcement officer that he was stranded, and the officer gave him a ride to Dundalk.\\nBennett stayed in Dundalk for weeks, stealing food and sleeping at a bus stop, in a van, or wherever else he could find a place to sleep. Two or three times a day, Bennett called Lewis via pay phones, asking whether Cooke had e-mailed Lewis, or whether Lewis had any information to share. One day, Cooke e-mailed Lewis to arrange a meeting with Bennett. At the meeting, Cooke told Bennett that, at some point, he would leave a key outside the house so that Bennett could enter the house and kill Bernadzikowski. On another day, Cooke and Bennett met again; Bennett asked for an up-front payment; and Cooke said that he would not have any money until he collected the proceeds from the insurance policy on Bernadzikowski's life.\\nA day or two after Cooke's and Bennett's second meeting, Bennett telephoned Lewis, who said that Cooke had e-mailed him, stating that he would drop off Bernadzikowski in about twenty minutes and that a key was outside of the house. Bennett went to Cooke's and Bernadzikowski's house, found the key, entered the house, and waited. Within three or four minutes, through the window, Bennett saw Cooke drive up outside the house, and saw Bernadzikowski get out of the car. Bennett waited behind the front door. Bernadzikowski entered the house, and Bennett put his hand over her mouth and unsuccessfully tried to break her neck. Then, Bennett put his hand around Bernadzikowski's throat and started choking her. Bernadzikowski struggled and scratched Bennett's face, but she eventually became unconscious. To make sure that Bernadzikowski was dead, Bennett cut her throat with a knife.\\nTo make it seem as though a burglary had occurred, Bennett went upstairs and ransacked the bedroom. To confuse law enforcement officers, Bennett used Bernadzikowski's lipstick to write \\\"Number 1\\\" on the wall. Bennett waited approximately thirty to thirty-five minutes, left the house, and threw the key and knife into a dumpster. Bennett telephoned Lewis and informed him that he had killed Bernadzikowski. Lewis told Bennett that he was using a satellite to ensure that no law enforcement officers were in the area. After returning to Colorado, Bennett told Lewis about the killing in more detail. According to Bennett, Cooke never paid him, and Bennett and Lewis had never discussed simply stealing money from Cooke without killing Bernadzikowski.\\nAs a witness for the State, Sergeant Alan Meyer (\\\"Sergeant Meyer\\\") of the Baltimore County Police Department testified that, on April 20, 2000, Sergeant Meyer responded to 2008 Codd Avenue in Dundalk to investigate Bernadzikowski's death. An investigation revealed that Bernadzikowski's boyfriend, Cooke, had taken out a $700,000 insurance policy on Bernadzikowski's life, and that she was preparing to end their relationship. At the time of the initial investigation, DNA tests conducted on Bernadzikowski's fingernail clippings revealed DNA belonging to Bernadzikowski and an unknown individual.\\nYears later, in September 2011, after advances in DNA technology, DNA testing of Bernadzikowski's fingernails revealed that the DNA profile of the previously unknown individual matched Bennett, causing him to become a suspect. Additionally, Sergeant Meyer learned that, on March 30, 2000, a Maryland State Trooper had stopped Bennett while he was walking toward I-895. Sergeant Meyer traveled to Colorado, interviewed Bennett, and obtained Lewis's name from Bennett. Sergeant Meyer believed Lewis to be a witness and interviewed him in Colorado on four separate occasions. On January 19, 2012, Bennett was arrested.\\nAs a witness for the State, Ott, Bennett's high school classmate, testified that Bennett and Lewis were best friends. In Spring 2000, Ott drove Bennett and Lewis to Denver International Airport. On the way, Bennett said that he and Lewis were two of the biggest members of organized crime in Colorado; that Bennett was going to Baltimore to do a job; and that he and Lewis were going to make a lot of money.\\nAs a witness for the State, Rebecca Love (\\\"Love\\\"), the mother of Lewis's two children, testified that, in Spring 2000, while she and Lewis were in her apartment, Lewis told her that an out-of-State woman owed him money and had \\\"reneged[,]\\\" and that he had sent Bennett to kill her while he watched on his computer via satellite. Love ran out of her apartment and cried. Lewis followed Love and told her that he had made up the planned killing to impress her.\\nAs a witness on his own behalf, Lewis testified that he and Bennett developed a \\\"silly scam\\\" in which they would accept money for contract killings without following through. Lewis acknowledged that he created an online advertisement for \\\"professional and discreet cleaning services,\\\" and that in response to the online advertisement, Cooke offered to pay $20,000 up front, and another $20,000 upon completion, for a contract killing of Bernadzikowski. Cooke e-mailed Lewis to provide his and Bernadzikowski's address, and Bennett flew to Baltimore, where he was supposed to collect the up-front payment from Cooke. Once Bennett was in Baltimore, over time, Lewis heard from Bennett and Cooke that Cooke wanted to lower the amount that he would pay up front, and eventually that Cooke wanted to cancel the contract killing. Lewis also heard from Bennett that he accosted and threatened Cooke, who then agreed to proceed with the contract killing. After Bennett returned to Colorado, he told Lewis that he had entered Cooke's and Bernadzikowski's house, where he planned to extort money from Cooke. According to Lewis, Bennett said that, after Bernadzikowski entered the house instead, Bennett panicked and killed her. Lewis testified that he was \\\"horrified at what had transpired[,]\\\" that he had never intended to carry out a murder, and that he had never believed that Bennett would do so. Lewis denied having told anyone else about his and Bennett's scam.\\nA jury found Lewis guilty of first-degree murder of Bernadzikowski and conspiracy to commit first-degree murder of Bernadzikowski. The circuit court sentenced Lewis to life imprisonment for first-degree murder, and five concurrent years of imprisonment for conspiracy to commit first-degree murder. Lewis noted an appeal.\\nLewis did not allege, pretrial or during trial, that his arrest violated the Maryland Uniform Act to Secure the Attendance of Witnesses from Without State in Criminal Proceedings.\\nSubsequent Procedural History\\nOn appeal, for the first time, Lewis raised the exemption from arrest under CJ \\u00a7 9-304(a). Specifically, before the Court of Special Appeals, Lewis contended that the State's prosecution of him violated CJ \\u00a7 9-304(a), and argued that, accordingly, the circuit court lacked subject-matter jurisdiction and improperly exercised personal jurisdiction over Lewis.\\nThe Court of Special Appeals disagreed and affirmed the convictions, holding that the circuit court had subject matter jurisdiction and properly exercised personal jurisdiction. See Lewis v. State , 229 Md.App. 86, 101, 143 A.3d 177, 186-87 (2016). Specifically, the Court of Special Appeals concluded that the circuit court had subject matter jurisdiction because Bernadzikowski's body had been found in a residence in Dundalk, Maryland. See id. at 101, 143 A.3d at 186. The Court of Special Appeals held that an alleged violation of CJ \\u00a7 9-304(a) does not result in a lack of subject matter jurisdiction, and that the alleged violation is subject to Maryland Rule 4-252, and is waived if not raised in a timely manner. See id. at 107-08, 143 A.3d at 190. The Court of Special Appeals held that the circuit court had personal jurisdiction over Lewis because \\\"[Lewis] was served in the State, and thus, the State acquired personal jurisdiction over him.\\\" Id. at 103, 143 A.3d at 188. The Court concluded that Lewis's challenge to the exercise of personal jurisdiction was waived. See id. at 103, 108, 143 A.3d at 188, 190. The Court of Special Appeals determined that the issue was whether, in light of the alleged violation of CJ \\u00a7 9-304(a), personal jurisdiction should have been exercised. See id. at 103, 143 A.3d at 188. The Court of Special Appeals concluded that \\\"it is settled that the defense of lack of personal jurisdiction, unlike subject matter jurisdiction, is waived unless raised in a mandatory preliminary motion[.]\\\" Id. at 103, 143 A.3d at 188 (citation, brackets, and internal quotation marks omitted).\\nLewis filed a petition for a writ of certiorari , which this Court granted. See Lewis v. State , 450 Md. 420, 149 A.3d 547 (2016).\\nDISCUSSION\\nThe Parties' Contentions\\nLewis contends that the circuit court improperly exercised personal jurisdiction over him in violation of CJ \\u00a7 9-304(a), which provides that a person who comes into the State on an out-of-State summons shall not be subject to arrest or the service of process in matters that arose before his or her entrance into the State. Lewis argues that, as such, his convictions should be vacated and he should be allowed to return to Colorado, at which point Maryland may elect to initiate extradition proceedings against him. Lewis acknowledges that a court's ability to exercise personal jurisdiction over a criminal defendant is not generally affected by the manner in which a defendant is brought into court. Lewis asserts, however, that the Doctrine of Specialty-which provides that a court cannot exercise personal jurisdiction over a person who is extradited to the United States for an offense that is not specified in the demand for surrender of the person-is an exception to the general rule, and applies in this case. Lewis maintains that, like the Doctrine of Specialty in extradition matters, CJ \\u00a7 9-304(a) prevents the circuit court from exercising personal jurisdiction over him for any matter other than the purpose for which he was brought to Maryland.\\nLewis concedes that he did not preserve the issue as to the alleged violation of CJ \\u00a7 9-304(a) for appellate review, but asks us to exercise our discretion under Maryland Rule 8-131(a) to review the unpreserved issue because of this case's \\\"extraordinary circumstances.\\\" Lewis contends that both the prosecutor and circuit court were or should have been aware that his prosecution violated CJ \\u00a7 9-304(a), and that the circuit court and the State had a substantial opportunity to correct the error. Lewis argues that the purpose of fairness in judicial proceedings would be furthered by this Court exercising its discretion to review the matter, and that addressing the issue would avoid the expense and delay of another appeal.\\nAs to the merits, Lewis argues that an out-of-State witness does not waive the issue of a violation of CJ \\u00a7 9-304(a) by failing to file a pretrial motion under Maryland Rule 4-252 (Motions in Circuit Court). Lewis points out by analogy that an implicit waiver is not permitted under Maryland's extradition laws, which require an express waiver of the right to challenge extradition. Lewis asserts that permitting an implicit waiver under CJ \\u00a7 9-304(a) would permit the circumvention of an explicit waiver that would be required to extradite him from Colorado. Lewis maintains that a waiver of the issue as to a violation of CJ \\u00a7 9-304(a) should be the same as the general requirement for a waiver of extradition-the waiver must occur in open court, before a judge, and after an advice of the right to challenge extradition. According to Lewis, permitting an implicit waiver would render trial courts \\\"unaccountable\\\" for violations of CJ \\u00a7 9-304(a). Lewis contends that, in this case, although there is no evidence of bad faith on the circuit court's part, there is an appearance of impropriety because the same circuit court judge issued the Certificate for Attendance of Witness from Colorado State and presided over his trial.\\nThe State responds that Lewis forfeited the ability to challenge his arrest and prosecution by failing to raise the issue in a pretrial motion pursuant to Maryland Rule 4-252. The State contends that a challenge to a trial court's personal jurisdiction over a defendant falls under \\\"[a] defect in the institution of the prosecution\\\" under Maryland Rule 4-252(a)(1), and thus must be the subject of a mandatory motion. The State argues that Maryland Rule 4-252 requires a defendant-not the State or a trial court-to raise an issue as to a violation of CJ \\u00a7 9-304(a) before trial, or the issue is waived. The State asserts that a knowing and voluntary waiver is not required under CJ \\u00a7 9-304(a). The State maintains that the analogy to waiver under extradition laws is misplaced because: (1) the procedure to protect an out-of-State witness is not comparable to the procedure to protect the rights of a defendant who has already been charged with a crime; (2) errors in the extradition process that are not timely raised are forfeited without a knowing and voluntary waiver; and (3) Maryland Rule 4-252 does not require a knowing and voluntary waiver.\\nThe State contends that Lewis fails to demonstrate that this Court should exercise its discretion to review his unpreserved challenge to his arrest and prosecution, as doing so would not correct a recurring error, provide guidance where there is likely to be a new trial, or offer assistance if there is a subsequent collateral attack on the convictions. The State argues that it would be unfair to allow Lewis to raise an issue as to a violation of CJ \\u00a7 9-304(a) for the first time on appeal, as he could have known of the issue, yet decided not to raise it before trial. The State points out that, had Lewis raised the issue of a violation of CJ \\u00a7 9-304(a) before trial and been permitted to return to Colorado, the State could have immediately sought to extradite him.\\nThe Standard of Review\\n\\\"An appellate court reviews without deference a trial court's interpretation of a statute[.]\\\" Howard v. State , 440 Md. 427, 434, 103 A.3d 572, 576 (2014) (citations omitted). And, generally, an appellate court reviews questions of law without deference. See State v. Callahan , 441 Md. 220, 226, 107 A.3d 1143, 1146 (2015) (\\\"[W]hether the probationer violated the order of probation is a purely legal issue[, and] the appellate court reviews without deference the trial court's determination that the probationer violated the order of probation.\\\" (Citation omitted)).\\nCJ \\u00a7 9-304(a)\\nCJ \\u00a7 9-304(a), part of the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, states in its entirety:\\nExemption of person coming into State to attend and testify. -If a person comes into this State in obedience to a summons directing him [or her] to attend and testify in this State he [or she] shall not while in this State pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his [or her] entrance into this State under the summons.\\nPrior to the General Assembly enacting what is now the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, under the common law of Maryland, an out-of-State witness or party in a civil or criminal case was exempt from arrest or service of process while the witness or party was in Maryland for the purpose of attending a proceeding in the civil or criminal case. See Long v. Hawken , 114 Md. 234, 235, 79 A. 190 (1911) (\\\"It seems to be clear, that whatever may be the rule in other jurisdictions, it is settled in this [S]tate that a non-resident witness is exempt from service of civil process as well as arrest, while attending on the [C]ourts of the [S]tate.\\\"); Feuster v. Redshaw , 157 Md. 302, 304, 306-07, 145 A. 560, 561, 562 (1929) (\\\"The law is settled in Maryland that a non-resident who comes into this [S]tate either as a witness or as a party plaintiff or defendant in a civil action is, while for that purpose coming, staying, and returning in good faith and without unreasonable delay, exempt from the service of process for the commencement of a civil action against him in this [S]tate.... The[ ] reasons are as applicable to criminal prosecutions as they are to civil actions, and, on principle, should have no different conclusion.\\\"). In Feuster , 157 Md. at 303-04, 308, 145 A. at 561, 563, this Court held that a Pennsylvania resident who had been charged with a criminal violation of Maryland's motor vehicle laws was exempt from service of process in a civil case that arose out of a motor vehicle accident, where the Pennsylvania resident was served with summons while he was in a Maryland courtroom waiting for his criminal case to be called. This Court observed that, among courts in other jurisdictions, there was a split as to whether the exemption from arrest or service of process applied to defendants in both civil and criminal cases. See id. at 306, 145 A. at 562.\\nIn 1936, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See National Conference of Commissioners on Uniform State Laws, Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings Explanatory Note at 333, http://www.uniformlaws.org/shared/docs/attendance% 20of% 20witnesses/attendance% 20of% 20witnesses% 201936.pdf [https:// perma.cc/U78L-JCTR]. Afterward, legislatures in all fifty States and the District of Columbia enacted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings.\\nSee National Conference of Commissioners on Uniform State Laws, Attendance of Out of State Witnesses, http://www.uniformlaws.org/Act.aspx?title=Attendance% 20of% 20Out% 20of% 20State% 20Witnesses [https://perma.cc/N4XU-HLTU].\\nIn 1937, the General Assembly enacted what is now titled the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings as Md. Code Ann., Art. 27, \\u00a7 560 through 560E. See 1937 Md. Laws 235 (Ch. 124). CJ \\u00a7 9-304(a)'s earliest predecessor was the first paragraph of Art. 27, \\u00a7 560C, which was titled \\\"Exemption From Arrest and Service of Process.\\\" See id. at 237. The language of the first paragraph of Art. 27, \\u00a7 560C was identical to that of its source in the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and was also identical to CJ \\u00a7 9-304(a)'s language. Compare id. with National Conference of Commissioners on Uniform State Laws, Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings at 337, http://www.uniformlaws.org/shared/docs/attendance% 20of% 20witnesses/attendance% 20of% 20witnesses% 201936.pdf [https://perma.cc/U78L-JCTR] and CJ \\u00a7 9-304(a).\\nAlthough the General Assembly has never changed the language of the provision that eventually became CJ \\u00a7 9-304(a), the General Assembly has recodified the provision multiple times. First, the General Assembly recodified Art. 27, \\u00a7 560C as Art. 27, \\u00a7 704, and made the first paragraph subsection (a). See 1955 Md. Laws 511 (Ch. 333, H.B. 4). Later, the General Assembly recodified Art. 27, \\u00a7 704 as Art. 27, \\u00a7 620, and gave subsection (a) its own title: \\\"Exemption of person coming into state to attend and testify.\\\" See 1973 Md. Laws. 299-300 (July Extraordinary Session, Ch. 2, S.B. 1). Finally, in 1973, the General Assembly recodified Art. 27, \\u00a7 620 as CJ \\u00a7 9-304. See id. The Revisor's Note stated that \\\"[t]his section presently appears as Art. 27, \\u00a7 [ ]620. No change has been made.\\\" See id. at 300. In the forty-four years since then, the General Assembly has not amended CJ \\u00a7 9-304.\\nNeither this Court nor the Court of Special Appeals has addressed any of CJ \\u00a7 9-304's predecessors. Aside from the opinion of the Court of Special Appeals in this case, this Court and the Court of Special Appeals have not decided any issues arising out of CJ \\u00a7 9-304, and have mentioned CJ \\u00a7 9-304 in passing in only two cases.\\nIn State v. Breeden , 333 Md. 212, 227, 634 A.2d 464, 471 (1993), this Court held that the State failed to prove that a witness was unavailable because the State did not timely invoke the procedures under the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. In Breeden , id. at 226, 634 A.2d at 471, this Court concluded that the State failed to make efforts in good faith to secure a witness's attendance because \\\"the State . sat on its hands with respect to the Uniform Act\\\" to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. This Court noted that the adoption by every State of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings \\\"create[d] a community of jurisdictions [that] will honor the request of fellow members for the appearance of witnesses at criminal proceedings under the conditions specified in the Act.\\\" Id. at 223, 634 A.2d at 469 (citation and internal quotation marks omitted). This Court explained that the Act's purposes are \\\"to secure at trial the attendance of a material witness residing in another state\\\" and \\\"to promote the enforcement of the criminal laws and the administration of justice in criminal proceedings in the several [S]tates.\\\"\\nId. at 223, 634 A.2d at 469 (citation, ellipses, and internal quotation marks omitted). This Court quoted provisions of the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and mentioned CJ \\u00a7 9-304 only in the following sentence: \\\" [CJ] 9-304 grants the witness exemption from arrest and service of process.\\\" See id. at 224, 634 A.2d at 470.\\nIn In re State of Cal. for Los Angeles Cty., Grand Jury Investigation , 57 Md.App. 804, 806-08, 811, 471 A.2d 1141, 1142-43, 1144 (1984), a case involving the appeal of a trial court's issuance of an order requiring a witness located in Baltimore City to appear before a Los Angeles County grand jury, the Court of Special Appeals affirmed the issuance of the order and stated:\\nThe principal difference is that in the [Uniform Criminal Extradition Act] the person demanded by the requesting State will be returned to that State to face criminal prosecution, while in the [Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings] the person requested is to testify and is specifically exempted from prosecution for matters that \\\"arose before . entrance into . [the] State under the summons.\\\"\\n(Quoting CJ \\u00a7 9-304 ) (ellipses and last alteration in original).\\nCase Law from Other Jurisdictions\\nAs in Maryland, few courts in other jurisdictions have addressed issues as to waiver of the exemption from arrest or service of process under those jurisdictions' Uniform Acts to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. In Foster v. State , 372 N.W.2d 468, 469, 470 (S.D. 1985), the Supreme Court of South Dakota held that a trial court had personal jurisdiction over a defendant where the defendant was brought to South Dakota for the purpose of having him testify in a criminal case that was unrelated to his own. In South Dakota, the defendant had been convicted of a felony drug charge, sentenced to two years' imprisonment and given a date to surrender to a county sheriff to begin serving the sentence. See id. at 468. The defendant did not appear for service of the sentence, and was later arrested in North Dakota on charges that were pending in that State. See id. A trial judge in South Dakota signed a Certificate by Judge for Summons of Witness from Out-of-State under the South Dakota Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings for the purpose of securing the defendant's testimony in a matter that was unrelated to his failure to appear. See id. at 468-69. The defendant signed a waiver of extradition, and was brought to South Dakota. See id. at 469. In South Dakota, the defendant pled guilty to failing to appear before the sheriff, and was sentenced to five years' imprisonment. See id. The defendant subsequently filed a Writ of Habeas Corpus, which was dismissed. See id.\\nOn appeal, the defendant contended that the trial court lacked personal jurisdiction over him because he was brought to South Dakota as a witness, and thus was exempt from arrest under South Dakota's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See id. at 470. The Supreme Court of South Dakota disagreed, and observed that the State of South Dakota \\\"neither intended, nor relied in fact upon,\\\" South Dakota's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings to have the defendant brought to South Dakota for the purpose of prosecuting him for failing to appear before the sheriff. See id. The Court stated that the defendant had not identified any irregularities that would invalidate the waiver of extradition that he signed before being brought to South Dakota. See id. Finally, the Court concluded that any irregularities in extradition proceedings would not deprive South Dakota's trial courts of personal jurisdiction over the defendant. See id.\\nIn Zeller v. Cumberland Truck Sales , 272 S.C. 558, 253 S.E.2d 111, 112-13 (1979), a civil case involving a dispute over fees for repair of a vehicle, the Supreme Court of South Carolina held that a defendant did not implicitly waive an exemption from service of process by failing to raise the exemption before a trial court ordered default judgment. The Supreme Court of South Carolina rejected the plaintiff's contention that the defendant impliedly waived the exemption from service by failing to assert the exemption before the trial court ordered default judgment. See id. at 112-13. The Court explained:\\nThe exemption or immunity from service of process, afforded under [the\\nexemption provision of South Carolina's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings], is a personal privilege or exemption and may be waived by the person otherwise entitled thereto. [The plaintiff] correctly states that the applicable rules require a prompt assertion of the exemption from service of process and, ordinarily, such immunity should be claimed prior to judgment. The latter, however, is not an absolute rule but must be weighed in the light of all of the surrounding facts and circumstances.\\nId. (citations and paragraph break omitted). In Zeller , id. at 113, the Court concluded that it was reasonable to infer that the service of two summonses that had been stapled together without a complaint gave the impression that only one case was pending. The Court noted that a letter from the defendant's lawyer to the plaintiff's lawyer, apart from South Carolina's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, should have put the plaintiff's lawyer on notice that the defendant did not intend for the trial court to issue default judgment in the plaintiff's case. See id. The Court concluded that \\\"[t]hese circumstances raise sufficient doubts to justify the refusal to imply waiver from the alleged silence of\\\" the defendant. Id.\\nIndependent of other jurisdictions' Uniform Acts to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, courts in other jurisdictions have addressed issues as to waiver of an exemption from arrest or service of process under other jurisdictions' common law. In Bradford v. Nat'l Distillers & Chem. Corp. , 117 Ariz. 244, 571 P.2d 1040, 1041 (Ariz. Ct. App. 1977), without referring to Arizona's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, the Court of Appeals of Arizona held that an out-of-State witness who is in Arizona to testify in one case waives immunity from service of process in another case by delaying an assertion of that immunity. In Bradford , id. , an Arkansas resident came to Arizona to testify at a deposition. The deposition was cancelled on the day on which it was scheduled, and the parties to the case settled. See id. While he was in Arizona, the Arkansas resident was sued and served with summons. See id. The Arkansas resident took no action, and an Arizona trial court ordered default judgment against him. See id. Five years later, the Arkansas resident moved to vacate the default judgment for lack of personal jurisdiction, contending that he was immune because he was in Arizona for the purpose of testifying in another case. See id. An Arizona trial court denied the motion to vacate, and the Court of Appeals of Arizona affirmed. See id. The Court explained:\\nThe immunity upon which [the Arkansas resident] relies is a privilege extended by the court and not a jurisdictional matter, and in order to obtain the benefit of this privilege, the person served must timely urge the court to extend it. A delay in doing so, especially a delay of five years after entry of the judgment, as here, constitutes a waiver of any possible immunity.\\nId. (citations omitted).\\nIn Eaton v. Eaton , 120 Kan. 477, 243 P. 1040, 1040-41 (1926), the Supreme Court of Kansas held that a Texas resident who was in Kansas as a defendant in a criminal case waived the exemption from service of process in a civil case by failing to assert that exemption until after judgment. In Eaton , id. at 1040, the Texas resident's wife, who lived in Kansas, sued him for divorce and alimony, and service was made by publication; the Texas resident's wife also filed a criminal complaint against him for failure to pay child support. While the Texas resident was visiting his children in Kansas, he was arrested, and he posted bail. See id. When the Texas resident appeared for trial in Kansas, he was served with summons in the divorce case. See id. Judgment was entered against the Texas resident, who then moved to set aside the judgment on the ground that the service of summons was invalid. See id. At the time, the National Conference of Commissioners on Uniform State Laws had not yet adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings; however, under the common law of Kansas, an out-of-State party was exempt from service of summons while the party was in court, or on the way to or from court. See id. In Eaton , id. at 1040-41, a trial court denied the motion to set aside, and the Supreme Court of Kansas affirmed, stating that the exemption from service of summons \\\"must be claimed at as early a stage of the proceeding as possible\\\"-for example, in a motion or an answer to a complaint. See id. at 1041 (citation omitted). The Supreme Court of Kansas explained that the Texas resident could have moved to set aside the service of the summons when the answer to the complaint was due, and should have filed the motion before judgment. See id. The Supreme Court of Kansas stated: \\\"Instead of moving promptly, [the Texas resident] allowed judgment to be taken, allowed the term to lapse, and then undertook to proceed as though the judgment were void. The result is he waived his privilege.\\\" Id.\\nMaryland Rules 4-252 and 8-131(a)\\nMaryland Rule 4-252 states in pertinent part:\\n(a) Mandatory motions. In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise:\\n(1) A defect in the institution of the prosecution;\\n(2) A defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense;\\n(3) An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;\\n(4) An unlawfully obtained admission, statement, or confession; and\\n(5) A request for joint or separate trial of defendants or offenses.\\n(b) Time for filing mandatory motions. A motion under section (a) of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c), except when discovery discloses the basis for a motion, the motion may be filed within five days after the discovery is furnished.\\n\\n(d) Other motions. A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time. Any other defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time before trial.\\nMaryland Rule 8-131(a) states in its entirety:\\nThe issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.\\nPersonal Jurisdiction\\nPersonal jurisdiction is \\\"[a] court's power to bring a person into its adjudicative process; jurisdiction over a defendant's personal rights, rather than merely over property interests.\\\" Personal Jurisdiction, Black's Law Dictionary (10th ed. 2014). Under the Ker -Frisbie Doctrine, a trial court has personal jurisdiction over a defendant in a criminal case where the crime was committed within the trial court's jurisdiction and the defendant is physically present before the trial court, regardless of how the defendant was brought before the circuit court. See Clark v. State , 284 Md. 260, 277, 396 A.2d 243, 253 (1979) (This Court discussed Ker v. People of State of Illinois , 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) and Frisbie v. Collins , 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), and explained that Maryland law is in accord, stating: \\\"[T]he right to try is founded on the fact that the crime was committed within the jurisdiction of the Court and upon the further fact that the [defendant] after being indicted is present in person before the Court during the trial. It is not material how or by what means he [or she] was brought into Court[.]\\\" (Quoting Rigor v. State , 101 Md. 465, 470, 61 A. 631, 633 (1905) ); see also Ker -Frisbie Rule, Black's Law Dictionary (10th ed. 2014) (\\\"The principle that the government's power to try a criminal defendant is not impaired by the defendant's having been brought back illegally to the United States from a foreign country.\\\").\\nIn Ker , 119 U.S. at 443, 444, 7 S.Ct. 225, where the defendant was kidnapped from Peru and brought by force to the United States for trial, the Supreme Court held that it was not a \\\"valid objection\\\" for a defendant in a criminal case to raise the circumstance of \\\"his forcible seizure in another country, and transfer by violence, force, or fraud to this country[.]\\\" The Supreme Court explained its holding as follows: \\\"[A]bduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him [or her] for such an offense, and presents no valid objection to his [or her] trial in such court.\\\" Id. at 444, 7 S.Ct. 225.\\nIn Frisbie , 342 U.S. at 522, 72 S.Ct. 509, the Supreme Court reaffirmed its holding in Ker , 119 U.S. at 444, 7 S.Ct. 225, and reiterated that \\\"the power of a court to try a person for crime is not impaired by the fact that he [or she] had been brought within the court's jurisdiction by reason of a 'forcible abduction.' \\\" (Footnote omitted). In Frisbie , 342 U.S. at 519-20, 72 S.Ct. 509, an inmate petitioned for a writ of habeas corpus, alleging that, while he was living in Illinois, law enforcement officers from Michigan kidnapped him and took him to Michigan, where he was convicted of murder. The Supreme Court held that the inmate was not entitled to relief, and explained:\\n[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him [or her] and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he [or she] was brought to trial against his [or her] will.\\nId. at 522, 72 S.Ct. 509.\\nIn Clark , 284 Md. at 277, 396 A.2d at 253, this Court stated that the principle set forth by the Supreme Court in Frisbie , 342 U.S. at 522, 72 S.Ct. 509 -that an abduction does not deprive a court of jurisdiction-was consistent with Maryland law. In Clark , 284 Md. at 263, 276, 396 A.2d at 245, 252, an inmate escaped from a Maryland prison, and ended up being incarcerated again in an Oregon prison. The State filed a detainer against the inmate, who, in a letter to the Maryland State Police, requested that he be brought back to Maryland to serve the remainder of the sentence that he had received in Oregon. See id. at 276, 396 A.2d at 252. The State treated the inmate's letter as a waiver of extradition, had him brought back to Maryland, and prosecuted him for escaping from prison. See id. at 276, 396 A.2d at 252. In the trial court and on appeal, the inmate contended that his prosecution was illegal under the Uniform Criminal Extradition Act. See id. at 277, 396 A.2d at 252. This Court rejected the inmate's contention, and noted that the inmate correctly conceded that he was properly before the trial court because the forcible return of a person to a State does not deprive a court of jurisdiction. See id. at 277, 396 A.2d at 252-53.\\nIn McGuire v. State , 200 Md. 601, 603, 609, 92 A.2d 582, 583, 585 (1952), where Baltimore City police officers located a defendant in Washington, D.C. in connection with a violation of the lottery laws in Maryland and the defendant agreed to accompany the officers to Baltimore, this Court stated that the trial court's jurisdiction would not be affected even if law enforcement officers had illegally brought the defendant to Maryland. Specifically, this Court stated: \\\"Even if the action of the [officers of the Baltimore Police Department] in taking [the defendant] to Baltimore could be held to be unlawful, such fact would not affect the jurisdiction of the Maryland court or vitiate his indictment and trial.\\\" Id. at 609, 92 A.2d at 585 (citing Davis v. Brady , 188 Md. 113, 51 A.2d 827 (1947) ; Rigor , 101 Md. 465, 61 A. 631 ).\\nAnalysis\\nHere, we conclude that an out-of-State witness who enters Maryland to testify at a trial in a criminal case pursuant to a summons under the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and who is then arrested and charged with a crime in Maryland, waives any issue as to a violation of CJ \\u00a7 9-304(a) by failing to raise the issue pretrial as required by Maryland Rule 4-252.\\nMaryland Rule 4-252(a) identifies certain matters, such as \\\"[a] defect in the institution of the prosecution[,]\\\" and provides that such \\\"matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise [.]\\\" Maryland Rule 4-252(d) unequivocally states that, other than a motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense, any \\\"defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time before trial.\\\"\\nIn agreement with the Court of Special Appeals, we conclude that Maryland Rule 4-252(a)(1) requires that an alleged violation of CJ \\u00a7 9-304(a) be raised pretrial, as Maryland Rule 4-252 requires that a motion alleging a defect in the institution of the prosecution be filed within the timeframe specified under Maryland Rule 4-252(b). See Lewis , 229 Md.App. at 107-08, 143 A.3d at 190. Indisputably, instituting prosecution in a criminal case involves, among other things, the arrest of the defendant or issuance of process to secure the defendant's appearance in the matter. In addition to the requirements of Maryland Rule 4-252(a)(1) and (b), Maryland Rule 4-252(d) applies. The matter of whether CJ \\u00a7 9-304(a) has been violated is capable of determination before trial and does not involve trial of the general issue, as the facts that would be relevant in a determination of such a matter are wholly independent of the alleged criminal conduct. Specifically, the facts that would be at issue in deciding whether CJ \\u00a7 9-304(a) has been violated include: whether the defendant received a summons pursuant to the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings; whether the defendant entered Maryland pursuant to such summons; and whether the defendant was arrested or served with process \\\"in connection with matters which arose before his [or her] entrance into this State under the summons.\\\" CJ \\u00a7 9-304(a). Because a trial court is capable of determining before trial whether a violation of CJ \\u00a7 9-304(a) occurred, Maryland Rule 4-252(d) requires the defendant to raise the issue in a pretrial motion; if the defendant fails to do so, the issue is waived.\\nIndependent of the requisites of Maryland Rule 4-252(a)(1), (b) and (d), where, as here, a defendant not only fails to raise an alleged violation of CJ \\u00a7 9-304(a) in a pretrial motion, but also fails to raise the issue at any time in the trial court, a defendant may forfeit appellate review of the matter under Maryland Rule 8-131(a), which provides, in pertinent part, that \\\"the appellate court will not decide any [non-jurisdictional] issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]\\\" As this Court explained in Nalls v. State , 437 Md. 674, 691, 89 A.3d 1126, 1136 (2014) :\\nGenerally, in order to \\\"preserve\\\" an issue for appellate review, the complaining party must have raised the issue in the trial court or the issue was decided by the trial court. Md. Rule 8-131(a). In other words, if a party fails to raise a particular issue in the trial court, or fails to make a contemporaneous objection, the general rule is that he or she waives that issue on appeal.\\n(Footnote and some citations omitted).\\nThe purpose of Maryland Rule 8-131(a) is \\\"to prevent 'sandbagging' and to give the trial court the opportunity to correct possible mistakes in its rulings. An appeal is not an opportunity for parties to argue the issues they forgot to raise in a timely manner at trial.\\\" Peterson v. State , 444 Md. 105, 126, 118 A.3d 925, 936-37 (2015) (citations and internal quotation marks omitted). Allowing a defendant to raise the issue of an alleged violation of CJ \\u00a7 9-304(a) for the first time on appeal would enable defendants to refrain from raising the issue, wait to see the outcome of trial, and, if the defendant is convicted, attempt to secure reversal by raising the alleged violation of CJ \\u00a7 9-304(a) for the first time on appeal.\\nIt is fair to require a defendant from outside Maryland to assert an issue as to a violation of CJ \\u00a7 9-304(a) before trial. Given that such a defendant would have entered Maryland pursuant to a summons for an out-of-State witness and then been charged with a crime, the issue of whether the defendant was arrested or served with process in violation of CJ \\u00a7 9-304(a) would have been known, or should have been known, to the defendant well in advance of trial, thereby giving the defendant an opportunity to raise the matter in a pretrial motion pursuant to Maryland Rule 4-252.\\nAt oral argument, Lewis contended that the circuit court had the burden to sua sponte raise the issue of a violation of CJ \\u00a7 9-304(a) because the same circuit court judge issued the Certificate for Attendance of Witness from Colorado State and presided over Lewis's trial. We do not accept the notion that a trial court has the burden to sua sponte raise the issue of a violation of CJ \\u00a7 9-304(a). We see no valid reason, even where the same judge issues the summons and presides at trial, to treat an alleged violation of CJ \\u00a7 9-304(a) differently from any other defense that a defendant, not a trial court, is obligated to raise prior to trial under Maryland Rule 4-252 -such as any other issue that Maryland Rule 4-252 requires to be raised before trial. Thus, the defense must be raised by motion filed at any time before trial, i.e. , the defense must be timely asserted and the circuit court has no obligation to raise the issue on the defendant's behalf. See Md. R. 4-252. Where, as here, an issue as to a violation of CJ \\u00a7 9-304(a) is raised for the first time on appeal, the issue is waived and not preserved for appellate review.\\nNotably, in contending that the circuit court improperly exercised personal jurisdiction over him, Lewis relies on two cases from other jurisdictions, Wright v. State , 500 P.2d 582 (Okla. Crim. App. 1972) and State ex rel. Forte v. Ferris , 79 Wis.2d 501, 255 N.W.2d 594 (1977). Aside from being case law that this Court is not bound to follow, each case is distinguishable because the defendant timely raised an issue in the trial court. In Wright , 500 P.2d at 586, the defendant filed a pretrial motion to dismiss on the ground that his prosecution was instituted in violation of Oklahoma's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. The Court of Criminal Appeals of Oklahoma rejected the defendant's contention that the charges against him were invalid due to a failure to adhere to Oklahoma's Uniform Act, explaining that the defendant was properly extradited to Oklahoma. See id. at 587, 588-89.\\nIn Forte, 255 N.W.2d at 595, a case involving Wisconsin's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, the defendant served a sentence in Wisconsin and then was placed on parole; the defendant later went to Illinois and was permitted to remain there pending acceptance of his parole supervision by Illinois authorities. While the defendant was in Illinois, a Wisconsin trial court sought to secure the defendant's presence as a witness at a murder trial pursuant to Wisconsin's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings; a summons was issued directing the defendant to appear at the trial in Wisconsin and the defendant obeyed. See id. at 595-96. At the trial, the defendant refused to testify and was jailed for contempt of court; the defendant's Wisconsin parole agent then placed a parole detainer on him. See id. at 596. A few days later, while still subject to the parole detainer, the defendant was charged with murder; the defendant petitioned for a writ of habeas corpus, contending that his detention violated Wisconsin's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See id. The Supreme Court of Wisconsin agreed with the defendant, finding that the protections of Wisconsin's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings could not be limited after the defendant arrived in Wisconsin, and concluding that the parole detainer was \\\"tantamount to an arrest.\\\" Id. at 599 (citation omitted).\\nSignificantly, however, neither Wright nor Forte incl udes any discussion of waiver of the issue of a violation of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, as both defendants timely raised the issue prior to trial. Contrary to the purpose for which Lewis relies on the cases, Wright and Forte illustrate that the proper time at which to raise an alleged violation of the Uniform Act is before trial, not on appeal.\\nWe reject Lewis's contention that our holding is inconsistent with Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol.) (\\\"CP\\\") \\u00a7 9-124, which is part of the Uniform Criminal Extradition Act, and states in its entirety:\\n(a) In general. -(1) Any person arrested in this State charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of bail, probation, or parole, may waive the issuance and service of the warrant provided for in \\u00a7 9-107 and 9-108 of this title, and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this State a writing that states that the person consents to return to the demanding state.\\n(2) Before a waiver is executed or subscribed by the person, it shall be the duty of the judge to inform the person of the right to the issuance and service of a warrant of extradition and the right to obtain a writ of habeas corpus as provided in \\u00a7 9-110 of this title.\\n(b) Action on consent. -(1) If and when a consent has been duly executed, it shall forthwith be forwarded to the office of the Governor of this State and filed therein.\\n(2) The judge shall:\\n(i) direct the officer having the person in custody to deliver forthwith the person to a duly accredited agent of the demanding state; and\\n(ii) deliver or cause to be delivered to the agent a copy of the consent.\\n(c) Construction. -(1) This section does not limit the rights of the accused person to return voluntarily and without formality to the demanding state.\\n(2) This waiver procedure is not an exclusive procedure and does not limit the powers, rights, or duties of the officers of the demanding state or of this State.\\nAccording to Lewis, because CP \\u00a7 9-124(a)(1) requires an express, written waiver of service of a warrant for extradition, an express waiver of any issue as to a violation of CJ \\u00a7 9-304(a) is also required.\\nWe disagree. Simply put, Lewis's contention is misguided. Entering Maryland pursuant to a summons, and then being arrested or served with process in connection with a crime in Maryland, is not comparable to being extradited to Maryland. Obviously, as a threshold matter, because Lewis was not extradited to Maryland, CP \\u00a7 9-124(a)(1)'s requirement of an express waiver does not apply.\\nAnd, in actuality, CP \\u00a7 9-124(a)(1) supports our holding that an express waiver is not required under CJ \\u00a7 9-304(a). In drafting CP \\u00a7 9-124(a)(1)'s language, the General Assembly chose to require an express waiver where another State initiates extradition proceedings of a person who has been arrested in Maryland. By contrast, in drafting CJ \\u00a7 9-304(a)'s language, the General Assembly did not include a requirement of an express waiver where the State charges a person who entered Maryland pursuant to a summons. We decline to read such a requirement into CJ \\u00a7 9-304(a) ; in interpreting a statute, a court does not \\\"add . words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used [.]\\\" Bottini v. Dep't of Fin ., 450 Md. 177, 188, 147 A.3d 371, 378 (2016) ; see also id. at 206, 147 A.3d at 389 (\\\"[T]he General Assembly could have identified a bank account and the funds contained in a bank account as a separate classification of property subject to forfeiture, or as a specific form of tangible or intangible personal property distinct from money, had it desired to do so.\\\" (Citation omitted)).\\nWe find no merit in Lewis's contention that the circuit court's exercise of personal jurisdiction over him was improper in light of the Doctrine of Specialty, \\\"under which a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses.\\\" Doctrine of Specialty, Black's Law Dictionary (10th ed. 2014); see also United States v. Rauscher , 119 U.S. 407, 424, 7 S.Ct. 234, 30 L.Ed. 425 (1886)\\nAn extradited \\\"party shall not be delivered up by this government to be tried for any other offense than that charged in the extradition proceedings[.]\\\"). Lewis argues that, like the Doctrine of Specialty, CJ \\u00a7 9-304(a) prohibits the State from securing a person's presence in Maryland, and then exercising jurisdiction over him in a separate matter. Lewis's attempt to analogize the Doctrine of Specialty to CJ \\u00a7 9-304(a) and the circumstances of this case fails because, given that the statute governing extradition is inapplicable here, the Doctrine of Specialty would be equally inapplicable. In United States v. Valencia-Trujillo , 573 F.3d 1171, 1173-74 (11th Cir. 2009), the Eleventh Circuit described the purpose of the Doctrine of Specialty as follows:\\nThe rule of specialty \\\"stands for the proposition that the requesting state, which secures the surrender of a person, can prosecute that person only for the offense for which he or she was surrendered by the requested state or else must allow that person an opportunity to leave the prosecuting state to which he or she had been surrendered.\\\" The rule is grounded in concerns of international comity. As we have explained, \\\"[b]ecause the surrender of the defendant requires the cooperation of the surrendering state, preservation of the institution of extradition requires that the petitioning state live up to whatever promises it made in order to obtain extradition.\\\"\\n(Citations omitted). Grounded in concerns of international comity, contrary to Lewis's contention, the Doctrine of Specialty involves policy considerations that are not at issue in this case.\\nWe are also unpersuaded by Lewis's argument that, unless we require an express waiver of the issue of a violation of CJ \\u00a7 9-304(a), trial courts will be \\\"unaccountable\\\" for violations of law, and an out-of-State witness will lack a remedy on appellate review. There is a simple way for a defendant to ensure that an appellate court will consider an issue as to the protections afforded by CJ \\u00a7 9-304(a), which is: raise the issue in a pretrial motion. That way, the trial court will have the opportunity to address the matter, which will be preserved for appellate review, and the issue of the need for an explicit waiver would be non-existent.\\nApplying our holding to this case's facts, we conclude that Lewis waived the issue of a violation of CJ \\u00a7 9-304(a) by failing to raise the issue pretrial in the circuit court. Pursuant to the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, the State secured Lewis's presence in Maryland to testify at Bennett's trial. On the day on which Bennett's trial was to begin, Bennett entered into a guilty plea agreement, and made a proffer in which he inculpated Lewis. At oral argument, Lewis's counsel acknowledged that \\\"there is no evidence that the State knew in advance, prior to the proffer, that [ ] Bennett was going to give the proffer that he did.\\\" Lewis's counsel acknowledged that \\\"[t]here is no evidence of bad faith\\\" on the State's part. In short, before Bennett's proffer, the State had no reason to treat Lewis as a suspect or a potential defendant. As a result of Bennett's proffer, an investigation occurred, and Lewis was arrested and charged with crimes. Lewis never asserted an issue as to a violation of CJ \\u00a7 9-304(a) in the circuit court, whether in a motion pursuant to Maryland Rule 4-252 or otherwise; instead, Lewis raised the issue for the first time on appeal. Indeed, Lewis concedes that he failed to preserve the issue as to the violation of CJ \\u00a7 9-304(a) for appellate review.\\nLewis asks us to exercise our discretion, pursuant to Maryland Rule 8-131(a), to review the unpreserved issue. We decline to do so. In Ray v. State , 435 Md. 1, 22, 76 A.3d 1143, 1155 (2013), this Court noted:\\nWe usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction.\\nNone of the circumstances that are described in Ray exist here. There is no indication that there are recurring violations of CJ \\u00a7 9-304(a). Indeed, since the provision was recodified as CJ \\u00a7 9-304 forty-four years ago, this Court has never been called upon to decide an issue involving an alleged violation of CJ \\u00a7 9-304(a). And, there is no case law interpreting CJ \\u00a7 9-304's predecessors. The facts of this case are unusual. Lewis was present in Maryland pursuant to an out-of-State witness summons and, prior to the scheduled trial, the person against whom Lewis was summonsed to testify gave a proffer implicating him in the murder for which the person was to be tried. These are not circumstances that happen on a recurring basis. There is not a need to provide guidance for purposes of a new trial, given that the issue concerning the propriety of Lewis's arrest does not involve resolution of matters that occurred during trial. Finally, there is no need to offer assistance for purposes of a collateral attack on Lewis's convictions, given that, to prevail on a claim of ineffective assistance of counsel, Lewis would have to satisfy the \\\"prejudice\\\" prong under Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) -i.e. , Lewis would have to prove \\\"that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Jamison v. State , 450 Md. 387, 413 n.19, 148 A.3d 1267, 1283 n.19 (2016) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ) (internal quotation marks omitted). In other words, Lewis would be required to establish that the result of the criminal proceeding would have been different if his trial counsel had raised the issue of a violation of CJ \\u00a7 9-304(a) in a pretrial motion. This would be difficult to do because, if Lewis had not been arrested in Maryland and had returned to Colorado, the State would have been able to initiate extradition proceedings, and prosecute Lewis in the same manner that it did at his trial in this case. Stated differently, Lewis's trial would have proceeded, and the State would have presented the same evidence against him, if he had been extradited from Colorado rather than arrested while he was in Maryland.\\nHaving held that Lewis waived the issue as to a violation of CJ \\u00a7 9-304(a), we conclude that the circuit court had personal jurisdiction over Lewis by virtue of his physical presence before the circuit court. Under the Ker -Frisbie Doctrine, a trial court has personal jurisdiction over a defendant in a criminal case where the crime was committed within the trial court's jurisdiction and the defendant is physically present before the trial court, regardless of how the defendant was brought before the trial court. See Rigor , 101 Md. at 470, 61 A. at 633 (\\\"[T]he right to try is founded on the fact that the crime was committed within the jurisdiction of the court, and upon the further fact that the [defendant], after being indicted, is present in person before the court during the trial. It is not material how or by what means he [or she] was brought into court[.]\\\"). As in McGuire , 200 Md. at 609, 92 A.2d at 585, any unlawful act in arresting Lewis in Maryland and bringing him before the circuit court would not have undermined the existence of the circuit court's jurisdiction. Rather, as the Court of Special Appeals explained, the issue is whether the circuit court should have exercised personal jurisdiction, not whether the circuit court possessed such jurisdiction. See Lewis , 229 Md.App. at 102, 143 A.3d at 187.\\nIndeed, in his brief, Lewis notes that he does not dispute that the circuit court had personal jurisdiction over him, but instead contends that the circuit court should have refrained from exercising personal jurisdiction over him because he was arrested in violation of CJ \\u00a7 9-304(a). As discussed above, Lewis waived the issue of a violation of CJ \\u00a7 9-304(a) by failing to raise it pretrial as required by Maryland Rule 4-252 ; and, we decline to exercise our discretion to review the matter.\\nJUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS.\\nCJ \\u00a7 9-303(a) states in pertinent part:\\nIf a person in any [S]tate, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions . in this State, is a material witness in a prosecution pending in a court of record in this State, . a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.... This certificate shall be presented to a judge of a court of record in the county in which the witness is found.\\nIn their briefs, the parties state that CJ \\u00a7 9-304(a) provides for \\\"immunity.\\\" In State v. Breeden , 333 Md. 212, 224, 634 A.2d 464, 470 (1993), this Court stated: \\\"[CJ] 9-304 grants the witness exemption from arrest and service of process.\\\" (Emphasis added). For consistency with our case law, we use the term \\\"exemption.\\\"\\nIn 2015, Cooke was convicted of first-degree murder, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder.\\nIn 2005, Baltimore/Washington International Airport was renamed Baltimore/Washington International Thurgood Marshall Airport. See Maryland Aviation Administration, BWI Timeline, http://www.bwiairport.com/en/about-bwi/bwi-timeline/ [https://perma.cc/T7Z5-8JEL].\\nBefore us, Lewis does not contend that the circuit court lacked subject-matter jurisdiction.\\nCJ \\u00a7 9-304(b) applies to witnesses who are passing through Maryland on their way to another State, and thus does not pertain to this case.\\nIn 1985-twelve years after the General Assembly recodified Art. 27, \\u00a7 620 as CJ \\u00a7 9-304 in 1973-the General Assembly enacted a new Art. 27, \\u00a7 620, which pertained to a victim's or representative's right to be present at trial. See 1985 Md. Laws 2761 (Pt. 4, Ch. 563, S.B. 713). Afterward, this Court and the Court of Special Appeals mentioned the new Art. 27, \\u00a7 620 in certain cases. See, e.g. , Cianos v. State , 338 Md. 406, 412, 659 A.2d 291, 294 (1995) ; Wheeler v. State , 88 Md.App. 512, 529, 596 A.2d 78, 87 (1991). In 1996, the General Assembly recodified the new Art. 27, \\u00a7 620 as Art. 27, \\u00a7 773. See 1996 Md. Laws 3324 (Vol. V, Ch. 585, S.B. 456). In 2001, the General Assembly recodified Art. 27, \\u00a7 773 as Md. Code Ann., Crim. Proc. (2001) \\u00a7 11-302. See 2001 Md. Laws 322-23 (Vol. I, Ch. 10, S.B. 1).\\nMaryland Rule 2-322 applies only to civil cases in circuit courts. Maryland Rule 2-322(a)(1) states: \\\"The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: [ ] lack of jurisdiction over the person.... If not so made and the answer is filed, these defenses are waived.\\\"\\nCases from other jurisdictions support such a conclusion. Zeller , 253 S.E.2d at 112, Bradford , 571 P.2d at 1041, and Eaton , 243 P. at 1040 are civil cases from other jurisdictions that involved exemption from service of process. It is instructive that, in all three cases, the Courts stated that an out-of-State defendant must assert the exemption promptly. See Zeller , 253 S.E.2d at 112 (\\\"[T]he applicable rules require a prompt assertion of the exemption from service of process [.]\\\"); Bradford , 571 P.2d at 1041 (\\\"[T]o obtain the benefit of this privilege, the person served must timely urge the court to extend it.\\\"); Eaton , 243 P. at 1040 (\\\"[T]he privilege must be claimed at as early a stage of the proceeding as possible.\\\" (Citations omitted)).\"}"
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+"{\"id\": \"1676090\", \"name\": \"Phalen & Morris vs. The State of Maryland\", \"name_abbreviation\": \"Phalen & Morris v. State\", \"decision_date\": \"1841-12\", \"docket_number\": \"\", \"first_page\": \"18\", \"last_page\": \"31\", \"citations\": \"12 G. & J. 18\", \"volume\": \"12\", \"reporter\": \"Reports of cases argued and determined in the Court of Appeals of Maryland\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:44:35.587641+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Phalen & Morris vs. The State of Maryland.\", \"head_matter\": \"Phalen & Morris vs. The State of Maryland.\\nDec. Term 1841.\\nBy the act of 1816, chap. 89, the Visitors and Governors of W. College were authorised \\u201cto propose a scheme or schemes of a lottery for raising a sum \\u201c not exceeding, &e., clear of all expenses, and to dispose of, or sell all or \\u201c any of the tickets of said lottery or lotteries, and to draw the same, or to \\u201cauthorise any other persons to draw the same,\\u201d &c.\\nBy the act of 1821, chap. 46, the V. and G. of St. J\\u2019s. College were authorised \\u201cto propose a scheme or schemes of a lottery or lotteries for raising a \\u201c sum not exceeding, &c., and to sell such scheme or schemes to any pev- \\u201c sons whatsoever, and the purchaser or purchasers thereof, are hereby \\u201c empowered to sell and dispose of tho tickets in the said lottery or lot- \\u201c teries.\\u201d\\nUpon these acts it was held\\u2014\\n1. The assignees, of the V. and G. of the Colleges, of the franchises created by those acts, possessed no greater powers than their assignors,\\n2. The terms of those acts are unambiguous.\\n3. They communicate an authority to propose a scheme or schemes for raising a limited amount.\\n4. When the schemes for raising that amount havo been proposed and drawn, the authority given by those acts has performed its office, whether the let. ter of the act or tho legislative intent is regarded.\\n5. It was the intention of the Legislature, that the sum specified should be raised; it gave adequate means for its accomplishment; it iyas the duty of the owner of the schemes, in the exercise of his franchise, previously to drawing such schemes, to have sold all the tickets. In that mode was the amount authorised to be raised.\\nG. It being admitted that if all the tickets had been sold, in the schemes which have been drawn under the acts of 1816 and 1821, that a larger amount would have been raised than was authorised by them, the franchise thereby created was held to be exhausted.\\nThe act of 1817, chap. 154, declaring the effect and construction of previous lottery grants, so far as to show under what circumstances those grants shall be deemed exhausted, must he regarded as of overwhelming influence in tho decision of similar questions arising under grants made subsequent to its passage.\\nWhere parties claim to exercise a lottery privilege, under a grant which in point of law is exhausted by proceedings under it, the parties so claiming and acting may be restrained by injunction.\\nAppeal from the Equity side of Baltimore County Court.\\nOn the 18th February, 1840, the State of Maryland exhibited its bill of complaint alleging, that heretofore, to wit, by an act of Assembly, passed at December session 1816, and entitled \\u201cAn act to authorise a lottery or lotteries to raise a sum of money for the purpose of repairing, and raising a sum of money for the use of Washington College,\\u201d and by two several supplements thereto, the one passed at December session 1821, and the other at December session 1823; and also by a further and other act of Assembly, passed at December session 1821, entitled \\u201cAn act for the benefit of St. John\\u2019s College,\\u201d certain powers were conferred on the governments respectively, of Washington College on the Eastern, and St. John\\u2019s College on the Western Shore, and among them the power to dispose of the schemes of lotteries thereby authorised; and that a certain Palmer Canfield, of the city of JVew York, iu the year 1824, made contracts with the said governments severally, for the purchase or use and enjoyment, in whole or in part, of the lottery privileges granted them by the acts of Assembly aforesaid ; and that the schemes by him submitted for approval, and approved under said acts, being twelve in number, amounted in all to one million five hundred and forty-nine thousand seven hundred and sixty-five dollars, and that ten of said schemes, amounting to six hundred and eighty-seven thousand three hundred and sixty-five dollars, were drawn by himself or his agents, or by the Commissioners of Lotteries for him, and at his instance; and that the two remaining schemes, amounting to eight, hundred and sixty-two thousand four hundred dollars, were either drawn by him or his agents, or if undrawn, are so by reason of the negligence, default and fraud of the said Canfield, in this behalf, who made sale of, and received the money for a large number of the tickets in said two last mentioned schemes, more than fourteen years since. The said State further sheweth to your honors, that the prizes in each of the schemes submitted by, and approved for, said Canfield aforesaid, and by him advertised, amounted to the sum which would have been raised by the sale of the whole of the tickets in such scheme, and that each and every ticket issued in each of said schemes, contained upon its face a stipulation that the holder should submit to a deduction of fifteen per cent, from such prize as it might draw. And the said State also sheweth to your honors, that the whole sum of one hundred and sixty thousand dollars, authorised to be raised by the acts of Assembly aforesaid, with the expenses legally chargeable in addition, was raised by the said Canfield, under the schemes aforesaid, and certain other schemes, amounting to three hundred and eighty-three thousand seven hundred and forty-five dollars, drawn in fact on his account by Yates and McIntyre, of JVew York, and that the lottery privileges by said acts granted, were by him exhausted and extinguished. And the said State further sheweth to your honors, that the said Palmer Canfield, in addition to the schemes of lotteries by him submitted for approval, and approved, including those already stated to have been drawn in fact on his account, did advertise and draw in the State of Connecticut, through his agent, one Dana, of the firm of Paine, Burgess 4r Dana, certain other schemes of lotteries to an amount to the said State unknown, but believed and charged to be upwards of one hundred thousand dollars, purporting to be authorised by the acts of Assembly aforesaid, but which were never by him or said agent submitted for approval, or approved, according to the requirements of said act in that behalf. And the said State further sheweth to your honors, that the only surety in the bonds required by the acts aforesaid to be given by the purchaser of the schemes of lotteries thereby authorised, and which were given in conformity by said Palmer Canfield, is either dead, insolvent, or resides without this State, and that no other person than said Canfield has given or tendered any bond as purchaser, or in any other capacity, under said acts, except Yates and McIntyre, for the amount drawn by them as hereinbefore stated. And the said State further sheweth to your honors, that the said State, on the 20th of November, 1829, recovered judgment against the said Palmer Canfield, for the sum of sixteen thousand five hundred and sixty-eight dollars, in the Circuit Court of the United States for the second circuit, in and for the Southern District of New York, in an action of assumpsit in said court, instituted on the last Monday of October 1828, after wdiich, to wit, some time in the year 1833, the said Palmer Canfield died insolvent, leaving the said judgment wholly unsatisfied. And the said State further sheweth to your honors, that a certain Robert B. Ji. Tate, of the city of Baltimore, hath obtained letters of administration from the orphans court of Baltimore county, upon the personal estate of the said Palmer Canfield; and that on the 17th of February, 1840, an action of debt was instituted, and is now pending in Baltimore county court against the said Tate, as such administrator, upon the judgment aforesaid, by Michael McBlair, Samuel S. Dickinson and George Cooke, esquires, the said State\\u2019s Commissioners of Lotteries. The said State also sheweth to your honors, that James Phalen and Francis Morris, partners under the firm of James Phalen and Company, falsely alleging themselves to be entitled to the lottery privileges granted as aforesaid, by virtue of pretended assignments thereof from the said Palmer Canfield, through a certain Felix Pascales, of Jfew York, his pretended immediate assignee, propose and offer to draw, on the 18th of February, 1840, in the city of Baltimore, the scheme of a lottery authorised (as they aver in their advertisement thereof, which they have caused to be inserted in one or more of the daily papers published in the city of Baltimore, and a copy of which is herewith filed, which it is prayed may be taken as part of this bill,) by acts of the General Assembly of Maryland, for the benefit of Washingington and St. John\\u2019s Colleges, and which said scheme has never been submitted for approval, or been approved by the Commissioners of Lotteries. And the said State further showeth to your honors, that the pretended assignment aforesaid, from the said Canfield to the said Pascales, (who was the father-in-law of said Canfield, a doctor of medicine, in no wise acquainted with, or engaged in the lottery business, either at that time or before or after, and of narrow means,) was made, if at all, without consideration, and fraudulently, to defeat and delay the judgment aforesaid, and execution thereon. And the said State further sheweth to your honors, that the said Canfield had no power by the acts aforesaid, or the action under the same, of the governments of the colleges aforesaid, to make any assignment of his purchase from said governments, in the form which he is falsely alleged to have adopted, or in any other form; and that the said Canfield never did make any such assignment to the said Pascales, or if he did, that the said Pascales never did make assignment to the said Phalen and Morris, of any interest derived by him in the premises from said Canfield, and that the said Phalen S Morris are not the assignees, in law or in fact, of any rights acquired by said Canfield-, under his purchase aforesaid, or of any of said rights pretended to have been communicated by him to the said Pascales. And the said State further sheweth to your honors, that the said Felix Pascales, the pretended immediate assignee of the said Palmer Canfield, hath departed this life, and that no letters testamentary or of administration upon his estate, have been granted in this State. And the said State also sheweth that no power was conferred, or could or can he exercised, under the acts aforesaid, to propose or draw any scheme of a lottery purporting to be jointly authorised by the grants made severally as aforesaid, to Washington and St. John\\u2019s Colleges. And the said State further sheweth to your honors, that Michael McBlair, Samuel S. Dickinson and George Cooke, esquires, the State\\u2019s Commissioners of Lotteries for the present time being, believe that the scheme of a lottery, proposed and offered to be drawn as aforesaid, is unauthorised by the laws of this State. In tender consideration whereof, and inasmuch as the appropriate remedy of the said State in the premises is in equity, \\u2014 To the end, therefore, that the said James Phalen and Francis Morris, and Robert B. Ji. Tate, may full, true and perfect answers make, on their several and respective corporal oaths, to all and singular the premises, and that as fully as if thereto specially interrogated; and that by this honorable court it may be adjudged, ordered and decreed, that the said James Phalen and Francis Morris, and their agents and servants, be perpetually enjoined and restrained from proposing or offering to draw, or drawing or disposing of any scheme or schemes of lotteries, under and by virtue of the acts of Assembly aforesaid, and that the said State may have all such other and further relief in the premises as the case hereinbefore set forth shall in equity demand.\\nThe said State respectfully asks that the court here do'grant, as well the State\\u2019s writ of injunction (pursuant to the direction of the 21st section of an act of Assembly, passed at December session 1828, entitled, \\u201cA supplement to an act entitled, an act to amend the lottery system,\\u201d) to the said James Phalen and Francis Morris to be directed, strictly commanding and enjoining them, their servants and agents, from proceeding in the drawing of the lottery by them offered and proposed to be drawn in the city of Baltimore, on the I8th day of February, 1840, and purporting to be so offered and proposed by authority of acts of the General Assembly, for the benefit of Washington and St. John's Colleges, till their right to draw the same can be determined; and also the State\\u2019s writ of subpcpna, &c.\\nUpon this bill the county court ordered an injunction to issue.\\nThe joint and separate answer of James Phalen and Francis Morris alleged, that it is true as stated- in said bill of complaint, that by the various acts of Assembly in said bill mentioned, certain lotteries were authorised to be drawn, in order to raise funds for Washington and St. John's Colleges, and by said acts the governments of said colleges were authorised, either to draw said lotteries or to sell the right of drawing the same to any other person or persons whomsoever. And these respondents further admit, that the right of raising the sums of money in said acts mentioned, was duly and regularly assigned, for value received, to Palmer Canfield, of the city of JVew York. And these respondents further answering, admit, that said Canfield submitted for approval to the Governor and Chancellor of the State, the system of schemes of lotteries, amounting to a large sum nominally, and these respondents admit that ten of said schemes, amounting in the gross to the sum of six hundred eighty-seven thousand three hundred and sixty-five dollars, were drawn by said Canfield or his agents, but these respondents deny that any other schemes were drawn by said Canfield, and they also deny that tickets to any extent, in any other schemes, were sold by him or his agents; and they also deny that any of such tickets of the few which were sold, remains outstanding, unless they be in the hands of dealers who never paid for them, Canfield having redeemed all which were paid for. And these respondents further answering, admit, that the prizes in each of the schemes submitted by, and approved for said Canfield, and by him advertised, amounted to the sum which would have been raised by the sale of the whole of the tickets in such scheme, and that each and every ticket issued in each and every scheme, contained upon its face a stipulation, that the holder should submit to a deduction of fifteen per cent, from such prize as it might draw; but these respondents expressly deny, that either one hundred and sixty thousand dollars, or any other sum exceeding thirty thousand dollars, was raised, either by said Canfield or by any person drawing lotteries under the aforesaid grants, so assigned as aforesaid to said Canfield, including the drawing of Yales and McIntyre and Francis W. Dana; but these respondents verily believe, that said Canfield made large losses by such drawings, never having sold one-third of the tickets in said schemes, and several very high prizes having been drawn by holders of said tickets sold as aforesaid; and in confirmation of this denial, these respondents state, that from the 1st of December, 1838, to the 1st of December 1839, schemes were issued by the Commissioners of Lotteries for this State, amounting to about five millions of dollars, from which they derived but about twenty thousand dollars; and further, that said commissioners require of the contractors for such schemes, merely an allowance of five per cent, upon the tickets sold, and not upon the gross amount of the schemes. And these respondents utterly deny, that the lottery privileges by said act granted, have been exhausted or extinguished. And these respondents further answering, admit, that under such grants Yates \\u00a7 McIntyre drew several schemes, amounting in the gross to three hundred eighty-three thousand seven hundred and forty-five dollars, for which said Yates 4r McIntyre paid said Canfield eight thousand dollars, and no more; and they also admit, that Dana did draw one scheme, and no more, and that the gross profits were three hundred forty-eight dollars and seventy-five cents, and no more. Whether such last drawing took place on the approval of the Commissioners of Lotteries, these respondents do not know, and cannot therefore admit or deny. And these respondents admit, that no other security, except that given by Canfield and Yates \\u00a7 McIntyre, has been given, but aver that these respondents are ready and willing to file any bond with such satisfactory security as may be required by the pro per authorities. And these respondents further answering, admit the recovery of the judgment of the said State in the manner and at the time stated in said bill of complaint, and that said Palmer having been ruined by the loss upon the drawing of said lotteries, and other causes, died at or about the time stated, insolvent, not having satisfied said judgment; and they further admit, that letters of administration upon the estate of said Canfield, have been granted in Maryland to Robert B. A. Tate, the clerk of the Commissioners of Lotteries, who your respondents verily believe obtained said letters under the direction, and at the instance of said commissioners or their counsel; and they also admit the pendency of said actions of debt against said Tate, as is alleged in said bill. And these respondents further admit, that they did propose and offer to draw the scheme of a lottery on the 18th day of February, now last past, but they deny that they falsely alleged themselves entitled to do so by virtue of any pretended assignments, but on the contrary aver, that they are bona fide assignees for valuable consideration of the grants to said colleges, and they herewith state the dates and times of such assignments, which they are ready to produce and prove, when and where this court shall require. Palmer Canfield, on the 29th day of July, 1829, assigned to Felix Pas\\u00e9ales the said grants, in trust to sell the same, and from the proceeds thereof to pay a debt due to said Pas\\u00e9ales, and another one to James Raymond, with interest on such debts; that said Felix died, having first made his last will and testament, bequeathing all his estate to his son, Cyril O. Pas\\u00e9ales, and also appointing him executor of such will; that said Cyril advertised and sold such grants at auction, to Alexander G. Anderson, and on the 19th day of February, 1834, assigned and conveyed the said grants to said Anderson; that on the 22nd day of February, 1834, fhe said Anderson conveyed the same to James Raymond, of the city of Baltimore, and on the 13th day of December, 1838, the said Raymond, for full value, assigned and transferred fhe same to these respondents, and these respondents verily believe, that all of said assignments were fairly made, and for a valuable consideration. And these respondents farther answering, admit, that the schemes by them proposed to be drawn, were not submitted for approval, or approved by the Commissioners of Lotteries, these respondents submitting that they were not by law bound to submit the same for approval to such commissioners, and these respondents well knowing that no scheme submitted by them would be approved. And these respondents further answering, deny, that the assignment made by said Canfield to Felix Pascales was fraudulent, or without consideration, or fraudulently or otherwise to defeat and delay the aforesaid judgment rendered against said Canfield, or any other judgment. And these respondents insist, that said Canfield, had the power of transferring the said lottery grants, and that these respondents are the assignees of such lottery-grants ; and these respondents admit, that said Felix Pascales is dead, and that no letters testamentary, or of administration, upon his estate have been granted in Maryland,. And these respondents pray to be hence dismissed with costs.\\nAfter this, the cause was prepared for a final decree by admissions of facts and the filing of documentary proof, all of which, so far as is necessary to the understanding of the opinion and application of the principles decided in this court, sufficiently appear in the opinion delivered in this cause. At the final hearing, Baltimore county court (Purviance, A. J.,) decreed that the defendants be, and are perpetually enjoined and restrained from proposing or offering to draw, or disposing of any scheme or schemes of lotteries under or by virtue of the acts of Assembly in the bill in this cause mentioned.\\nFrom this decree the defendants appealed.\\nThe cause was argued before Buchanan, C. J., Stephen, Archer, Dorsey, Chambers, and Spence, J.\\nBy G. R. Richardson and R. Johnson for the appellants.\\nBy J. Mason Campbell and McMahon for the appellees,\", \"word_count\": \"4881\", \"char_count\": \"28527\", \"text\": \"Dorsey, J.,\\ndelivered the opinion of this court.\\nIt is admitted, that if all the tickets had been sold in the schemes, which have been drawn under the lottery grants in favor of Washington and St. John's Colleges, that a larger amount would have been raised than was authorised by the acts of Assembly under which the drawings took place. But it is insisted on the part of the appellants, that notwithstanding the competency of the schemes drawn (had all the tickets been sold,) to have raised the sum of $160,000, as authorised by the Legislature of Maryland, yet, that but a small portion of that sum was; in point of fact, realized, by reason of a great portion of the tickets remaining unsold when the schemes were drawn, and by the loss of the wheel, in the high prizes coming up to the tickets which had been sold.\\nThe first question, then, raised for our determination, is, have the lottery grants in question been exhausted by the drawing of lotteries, competent, upon the face of the schemes, to have realized the prescribed amount, or, as contended for by the appellants, are the owners of the privilege at liberty thereafter to continue their drawings, until, by the gain of the wheel or the sale of tickets, the specified amount shall have been actually raised?\\nBut the act of 1816, chap. 89, and by the supplement thereto of 1823, chap. 193, the Visitors and Governors of Washington College are authorised to propose a scheme or schemes of a lottery or lotteries, for raising a sum of money, not exceeding eighty thousand dollars; and by the act of 1821, chap. 46, the Visitors and Governors of St. John's College are authorised \\\"to propose a scheme or schemes of a lottery or lotteries, for raising a sum of money not exceeding eighty thousand dollars.\\\" The assignees of the franchise possess no greater powers than did the visitors and governors of these colleges. The terms in which the authority is communicated to them, are clear and unambiguous, to wit, to propose a scheme or schemes for raising a limited amount; when the schemes for raising that amount have been proposed and drawn, the authority given has performed its office, according to the letter of the acts of Assembly by which it is conferred. And if we look to the legislative intent in passing those acts, the construction we give them is still more strongly fortified. But it is said that it was the design of the Legislature, that the sum specified should be raised. Doubtless, such was its intention. A failure to effect it was not within its contemplation. It had given adequate means for its accomplishment, had they been pursued in the contemplated mode. It was the duty of the owner of the schemes, in the exercise of his franchise, previously to their drawing, to have sold all the tickets. Upon this assumption only did the Legislature act. It did not design to confer a floating, gambling power, of indefinite duration, which should expand and contract with the gain or loss of the wheel. But the amount to be raised (in the absence of all subsequent legislation, providing a different mode of raising it, as for example, by the consolidation system, or any other mode that might be prescribed,) was to be obtained by a sale of all the tickets embraced by the scheme, in the manner it prescribed. That such was the legislative intent, we think apparent on the face of the lottery grants before us, but is clearly deducible from all prior and subsequent enactments upon the subject.\\nIn requiring bonds to be given for the payment of prizes, it cannot be doubted that the Legislature believed it had provided ample security, in this respect, for the owners of prize tickets; upon no other terms would it have made the grants in question. What are the provisoes upon which those grants were made by the acts of 1821, chap. 46, and of 1821, chap. 224? They are, that the purchaser or purchasers of such scheme or schemes, shall before the sale or disposal of any ticket or tickets in said lottery or lotteries, give bond to the State of Maryland, in the penalty of one hundred and sixty thousand dollars, to be approved by the Governor and Council, conditioned that he or they will well and truly apply so much of the money arising therefrom, within twelve months after the drawing of the said lottery or lotteries shall commence, as will satisfy the fortunate adventurers for prizes drawn by them, and defray the necessary expenses incurred in the management thereof. It is too dear for argument or doubt upon the subject, that by the condition of those bonds, the obligors are no further bound than for the money arising from the sale of tickets. What then is the irresistible inference of the intention of the Legislature in making these grants? It is, that to warrant the drawing of a lottery, there must have been a sale of all the tickets in the scheme. Such being the apparent in tention of the Legislature, upon every principle of sound construction we are bound to give an accordant interpretation to its acts. To give to those lottery grants the exposition which has been claimed for them by the appellants, that the schemes may be drawn at the will of the purchaser, as soon as any portion of the tickets are sold, would impute to the Legislature a design to grant an almost interminable license to the most reckless, fraudulent system of gambling that could well be practised upon the thoughtless and unsuspecting. The inducement to such a system of gaming is too obvious to be overlooked. The purchaser after the acquisition of the grants, would have everything to gain, and could lose nothing. In the almost infinite series of schemes which he might draw, no tide of ill luck that could be anticipated, could prevent the filling of his coffers by unrighteous acquirements. The gain of the wheel in every scheme drawn was all his own; its losses were thrown on the owners of the prize tickets. He might gamble indefinitely at the risk of others; of his own, nothing was put to hazard.\\nThat wre have construed correctly the acts of Assembly in question, we think demonstrated by the first section of the act of 1810, chap. 154, which declares, \\\"that in all cases where lotteries have been heretofore authorised, under which powrer is given to raise a particular sum of money by one or more lotteries, and the managers may have drawn a lottery or lotteries, the scheme of which purported to raise the sum authorised to be raised, that in all such cases the power and authority given to raise money thereby\\\" is completed, and the power to draw any other lottery or lotteries under the same authority, at an end. If such were the legislative design in all previous like enactments, upon what recognized principle of sound construction can you give a different interpretation to the acts of Assembly now under consideration? And even conceding, as was slightly intimated in the argument, that this retrospective, declaratory law, is unconstitutional and void as to prior lottery grants, which otherwise would be differently construed, yet in all subsequent similar legislation, such a declaration of the will or intent of the Legislature must be regarded as of overwhelming influence, in the construction of its acts, and such is the case before us.\\nBelieving the lottery privileges, created by the acts of 1816, chap. 89, and 1821, chap. 224, and 1821, chap. 46, to have been exhausted by the schemes which have already been drawn under said acts, we deem it unnecessary to examine the other questions which have been discussed in this cause.\\nThe decree of Baltimore county court, perpetuating the injunction issued in this case, is affirmed.\\ndecree affirmed.\"}"
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+"{\"id\": \"169926\", \"name\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner v. David Tucker HEIMBACH, Respondent\", \"name_abbreviation\": \"Attorney Grievance Commission v. Heimbach\", \"decision_date\": \"1999-11-10\", \"docket_number\": \"Misc. Docket AG, No. 44\", \"first_page\": \"470\", \"last_page\": \"471\", \"citations\": \"356 Md. 470\", \"volume\": \"356\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:17:57.075788+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner v. David Tucker HEIMBACH, Respondent.\", \"head_matter\": \"740 A.2d 599\\nATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner v. David Tucker HEIMBACH, Respondent.\\nMisc. Docket AG, No. 44,\\nSept. Term, 1999.\\nCourt of Appeals of Maryland.\\nNov. 10, 1999.\", \"word_count\": \"153\", \"char_count\": \"910\", \"text\": \"ORDER\\nUpon consideration of the consent to disbarment from the practice of law filed by David Tucker Heimbach in accordance with Maryland Rule 16-712d2, and the written recommendation of Bar Counsel, it is this 10th day of November, 1999,\\nORDERED, by the Court of Appeals of Maryland, that David Tucker Heimbach be, and he is hereby, disbarred by consent from the further practice of law in the State of Maryland; and it is further\\nORDERED that the Clerk of this Court shall strike the name of David Tucker Heimbach from the register of attorneys, and pursuant to Maryland Rule 16-713, shall certify that fact to the Trustees of the Clients' Security Trust Fund and the clerks of all judicial tribunals in the State.\"}"
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+"{\"id\": \"1724988\", \"name\": \"Higdon et ux. vs. Thomas\", \"name_abbreviation\": \"Higdon v. Thomas\", \"decision_date\": \"1827-06\", \"docket_number\": \"\", \"first_page\": \"139\", \"last_page\": \"154\", \"citations\": \"1 H. & G. 139\", \"volume\": \"1\", \"reporter\": \"Harris and Gill\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:10:08.796254+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued at the last June term before Earle, Martin, Stephen, Archer, and Dorsey, J.\", \"parties\": \"Higdon et ux. vs. Thomas.\", \"head_matter\": \"Higdon et ux. vs. Thomas.\\nJune, 1827.\\nA liberal construction is to be given to the Statute of Frauds. 29 Car. 0, ah. 3. in relation to the fourth section thereof, it is settled, that if the \\u00a1r\\u00edame of a party appears in the memorandum of a contract, and isapplicabie to the whole substance of the writing, and is put there by him or his authority, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom. Forms are jsot regarded, and the Statute is satisfied, if the terms of the contract are in writing, and the names of the contracting parties appear.\\n\\u2022\\u00a1h> a bond, which recited the names of the parties to, and the terms of a contract for the sale of land, and contained a condition to secure a performance cii'such contract, prepared and written by the vendee, who was also the obligee of the bond, executed by an agent of the vendor, and delivered by him to the vendee, is a sufficient signing within the fourth section of the Statute of Frauds,\\nA technical authentication by signature is not necessary.\\n'The phraseology of tin-fourth and fifth sections of that statute, as respecto signing, is equally imperative, and substantially the same.\\nA receipt for the purchase money, in a deed for the conveyance of land, is only prima facie evidence of its pay ment.\\nWhere an agreement does not designate the person to whom its consideration is to tie paid, the law will raise an ammmpsit, and this is always implied m favour of those who are the meritorious cause of action, or from whom the consideration moves.\\n'The consideration being the sale of the wife\\u2019s inheritance, in the absence of an express promise the law will raise one to the husband and wile, on which the husband may sue either in his own name, or in the names of 'himself and wife, and in such case, even if there was an express promise to the husband, the wife might be joined as plaintiff\\n38ut a feme covert cannot be joined in an action to recover the price of property sold by her, and which belonged to her bef\\u00f3te coverture, or Hid value of services by her personally rendered, unless there be an express promise of payment to ber. This distinction arises from rights which pass to the husband absolutely, and those which survivi to the wife, and oyer which he has no power of transfer but by the consent and co-operation of the wife.\\nAppeal from Frederick County Court. This was an action \\u00aef assumpsit brought in the names of oe tppellants, (tho ji\\u2019niniiffs in the court below)) against the appellee., (the defendant in that court.)' The declaration counted upon the contract recited in the bond, a copy of which will be found in the bill of exceptions; and also averred that the defendant was put into the possession of the land sold to him on the day of making such contract, and afterwards accepted from the plaintiffs a sufficient deed conveying the fee simple of the said land to him. It then assigned as a breach, the nonpayment of the four last instalments mentioned in the contract, and concluded to the damage of the plaintiffs, &e. The defendant pleaded non assumpsit, and issue was joined.\\nAt the trial the plaintiffs gave in evidence the following instrument of writing, to wit: \\u201cKnow all men by these presents, that I, John 8. Frazier, of Frederick county, and state of Maryland, farmer, am held and firmly bound unto Samuel S. Thomas, of the same place, in the just and full sum of eight thousand dollars current money of Maryland, to be paid to Mm the said Samuel S. Thomas, his executors, administrators or assigns; to the which payment, well and truly to be made, I bind myself, my heirs, executors, administrators' and assigns, in and for the whole, firmly by these presents. Sealed with my seal, and dated this tenth day of February eighteen hundred and thirteen. Whereas the said John S. Frazier hath been authorised by Thomas Higdon, of Nelson county, in the state of Kentucky, to contract with persons for the sale of his lands lying in Frederick county aforesaid, which he the said Higdon bolds by virtue of his intermarriage with Arfemesia, daughter and devisee of Sarah Briscoe. And whereas the said John S. Frazier, in pursuance of his said authority, contracted with the said Samuel S. Thomas for the sale of all the said Thomas Higdon and Jirtemesia, his wife\\u2019s right, title, property, claim, and interest whatsoever, legal and equitable, to all the land situate, lying and being, in Frederick county aforesaid, which they hold under the last will and testament of Sarah Briscoe, deceased, except so much thereof as lies in and near LibertyToum, for which the said Samuel S. Thomas is to pay the sum of four thousand dollars current money, in the following manner; that is to say, one thousand dollars on the execution of this instrument of writing, one thousand in July next, and five hundred dollars annually thereafter, until the said four thousand dollars be fully paid. The said John 8. Frazier is to procure from the said Thomas Higdon, and his wife, deed for the a-hove described lands, except as before excepted, investing him the said Samuel S. Thomas, his heirs, executors or assigns, with a good title in fee simple for the same, and is to have possession now; all suits that are now or may be hereafter brought, which may affect the title or possession of said land, and the necessary costs thence accruing, is to be paid out of the latter payments. Now, the condition of the above obligation is such, that if the above mentioned Thomas Higdon and JLrtemesia his wife, do and shall well and truly, by a good and sufficient deed, agreeable to the terms and agreement aforementioned, convey to the said Samuel S. Thomas, his heirs, executors and administrators, all the lands above described, except as before excepted, on or before the twentieth day of September next, then the above obligation to be void, otherwise of full force and virtue. JohnS. Frazier, Att\\u2019y (Seal.)\\nSigned, sealed and delivered, in presence of Wesly Philips, .Ignatius M'Attee.\\nJieceived this 10th day of February, 1813, of Samuel S. Thomas, the sum of one thousand dollars, current money, in part payment of the above contract.\\nPr. me John S. Frazier, Att.\\u2019\\u2019\\nThe plaintiffs also gave in evidence, that the said instrument was prepared and written by the defendant, and by him brought to John S. Frazier, for the purpose of procuring his John S. Frazier\\u2019s signature to the same; that John S. Frazier did, in the presence of the defendant, sign, seal and deliver, the said instrument of writing, to the defendant. The plaintiffs also gave in evidence, that the defendant, on the 10th o\\u00ed February 1813, immediately after the execution of the said instrument of writing, and in pursuance thereof, was put into the possession of the lands mentioned in the said writing, by the said Frazier, and is still in possession of the same, and that the defendant on that said day, to wit, the 10th of February 1813, paid to the said Frazier, one thousand dollars. The plaintiffs also gave in evidence a deed dated the 9th of August 1813, executed by them to the defendant for the lands so contracted by the plaintiffs to be conveyed to the defendant. Which deed was made -,;ip consideration of the sum of $4,000 to the said Higdon and Wife, paid before the sealing and delivery thereof, the receipt whereof they thereby acknowledged, and was prepared at the instance of the defendant; and that the said deed after its execution, was delivered to, and accepted by the defendant, as a good and sufficient deed, and that the defendant, at the time of his acceptance thereof, said he wanted no other deed. The plaintiffs also gave in evidence anotherdeed for the same lands, bearing date the 12th of April 1814, executed by the plaintiffs to the defendant.\\nAfter the above evidence was read and given to the jury, the plaintiffs closed their case. The defendant then prayed the-opinion and direction of the court to the jury, that upon the evidence offered by the plaintiffs, they are not entitled to recover; which opinion the Court, [_Shriver, A. J.] gave, and so directed the jury. The plaintiffs excepted; and the verdict being for the defendant, they appealed to this court.\\nThe cause was argued at the last June term before Earle, Martin, Stephen, Archer, and Dorsey, J.\\nRoss, for the Appellants,\\ncontended, that the bond of John S. Frazier, the agent of the plaintiffs below, dated the 10th of February 1813, was sufficient evidence,\\n1. Of an agreement in writing, and signature by the party, or his agent, to gratify the Statute of Frauds. To prove this position, he cited 1 Pow. on Cont. 286, 287. Ogilvie vs. Foljambe, 3 Meriv. 61. Kennedy vs. Lee, Ib. 447, 448, 449, 450. Coles vs. Trecothick, 9 Ves. 250. Clark vs. Wright, 1 Atk. 13, (note 1.) Welford vs. Beazely, 3 Atk. 504. Ballard vs. Walker, 3 Johns. Cas. 65. Clason vs. Bailey, 14 Johns. Rep. 484, 486. M'Comb vs. Wright, 4 Johns. Ch. Rep. 663. Batturs vs. Sellers & Patterson, 5 Harr. & Johns. 119. It is not necessary that the agreement should be in writing; but the evidence of it must be in writing. Randall vs. Morgan, 12 Ves. 71. The bill of parcels is not to be considered as the contract itself; but it is a sufficient memorandum in writing of the contract within the meaning of the Statute of Frauds. Batturs vs. Sellers & Patterson, 5 Harr. & Johns. 120. If a letter contains the terms of an agreement, or acknowledges or refers to a former written one? then it takes it out of the Statute of Frauds. Clerk vs. Wright, 1 Atk. 13, (note 1.) Where there is a complete agreement in writing, and a person who is a party, knows the contents, subscribes it as a witness only, he is bound by it; for it is a signing within the statute. Welford vs. Beazely, 3 Atk. 504. Where A drew up a note of the agreement in writing, which B signed, but A did not sign, it was decreed the agreement of both; for A\\u2019s drawing up the agreement in his own hand, and procuring B to sign it on his part, made the signing of B, not only a signing for himself, but also a signing as authorised by A to close the agreement. And if B had come into a court of equity against A, the court would have decreed the agreement against him. 1 Pow. on Cont. 287. This case was decided soon after the passage of the Statute of Frauds The construction of the Statute of Frauds is the same in equity as at law; indeed the court of equity professes to follow the law. Morrison vs. Turnour, 18 Ves. 183. Sudg. 6. M'Comb vs. Wright, 4 Johns. Ch. Rep. 666. Forms are not regarded; and the statute is satisfied if the terms of the contract, and the names of the contracting parties, appear in the memorandum. Coles vs. Trecothick, 9 Ves. 252. Morrison vs. Turnour, 18 Ves. 180, (note 1.) Clason vs. Bailey, 14 Johns. Rep. 486. Kennedy vs. Lee, 3 Meriv. 447. Batturs vs. Sellers & Patterson, 5 Harr. & Johns. 119. As to the effect of the insertion of the name in the body of an agreement, as a signature within the Statute of Frauds, see Batturs vs. Sellers & Patterson, 5 Harr. & Johns. 119. Clason vs. Bailey, 14 Johns. Rep. 487, and the cases there cited. In the construction of all contracts, the situation of the parties, and the subject matter of the contract, are to be considered, in. order to determine the meaning of any particular provision. Wilson vs. Troup, 2 Cowen\\u2019s Rep. 196. By this rule let the question be decided, whether Mrs. Higdon was not a party to the contract.\\n2. That Artemesia, the wife, was not improperly joined in the action as one of the plaintiffs, he cited 1 Chitty\\u2019s Plead. 19, 20. Bashford vs. Buckingham, Cro. Jac. 77, 205. Guy vs. Livesey, Ib. 501. Aleberry vs. Walby, 1 Stra. 229. Bidgood vs. Way & Wife, 2 W. Blk. 1239. Ort vs. Fenwick, 3 East, 106. Philliskirk & Wife vs. Pluckwell, 2 Maule & Selw. 393. Arnold vs. Revoult, 5 Serg. & Low. 141. The State vs. Krebs, 6 Harr. & Johns. 37. Reeves Dom. Rel. 60, 61, 131, 132, 133.\\nPalmer, for the Appellee.\\n\\u00cd. The evidence does not support the issue. 2. The receipt in the deed is prima facie evidence of payment. 2. There is a misjoinder of husband and wife in the action. It should have been in the name of the husband alone.\\n1. The action is brought on a contract recited in a bond given to the defendant below. There is a distinction between referring to a contract in a bond, and the contract itself. Some of the counts in the declaration set out a contract different from that recited in the bond. Higdon and wife were not bound to make the deed under the agreement made by Frazier. The wife was not bound by the contract either at law or in equity. Bingh. on Infancy, 300. Emery vs. Wase, 5 Ves. 848. Sedgwick vs. Hargrave, 2 Ves. 57. The contract cannot remain partly by writing, and partly by parol. Stat. Frauds, 29 Car. II, ch. 3, s. 4, 17. Parkhurst vs. Van Cortlandt, 1 Johns. Ch. Rep. 273, 282. The recital of the contract in the bond is not the best evidence which the nature of the case admitted of. The contract itself should be produced. Phill. Evid. 356. Johnson vs. Mason, 1 Esp. Rep 89. Shelley vs. Wright, Willes, 11 Stroughton vs. Lynch, 2 Johns. Ch. Rep. 222. The writing the, name in the bond reciting a contract, is not a signing within the Statute of Frauds. Rob. on Frauds, 121. Glynn vs. Bank of England, 6 Ves. 39. Jackson vs. Pierce, 2 Johns. Rep. 221.\\n2. The receipt in the deed is prima facie evidence that the money has been paid. Dixon vs. Swiggett, 1 Harr. & Johns. 252. The receipt in the deed operated as an estoppel.\\n3. As to the misjoinder of the wife in the action, he cited 1 Chitty\\u2019s Plead. 18, 22, 314. Bingham on Infancy, 300. Sedgwick vs. Hargrave, 2 Ves. 57. Emery vs. Wase, 5 Ves. 848. Hall vs. Hardy, 3 P. Wms. 189, Innes vs. Jackson, 16 Ves. 367. 1 Madd. Ch. 6. Campbell vs. Jones, 6 T. R. 570. Pordage vs. Cole, 1 Saund. 320, (note 4 ) Buckley vs. Collier, 1 Salk. 114. Bashford vs. Buckingham, Cro. Jac. 77. Bidgood vs. Way & Wife, 2 W. Blk. 1236. Yard vs. Ellard, Carth. 462. 3 Thomas\\u2019s Co. Lilt. 312, (note.) The State use of Rogers vs. Krebs, 6 Harr. & Johns. 37.\\nRoss, in reply,\\nas to the point that the receipt in the deed was conclusive evidence of the payment of the consideration therein expressed, cited Shephard vs. Little, 14 Johns. Rep. 210. Bowen vs. Bell, 20 Johns. Rep. 338. Hamilton vs, M'Guire, 3 Serg. & Rawle, 355. Weigley\\u2019s Admr. vs. Wier, 7 Serg. & Rawle, 309. Wilkinson vs. Scott, 17 Mass. Rep. 257. O\\u2019Neale vs. Lodge, 3 Harr. & M'Hen. 433.\\nCuria adv. vult,\", \"word_count\": \"6333\", \"char_count\": \"35617\", \"text\": \"Doksey, J.\\nat this term delivered the opinion of the Court, It being conceded in argument, (as is unquestionably settled by authority,) that the receipt in a deed, for the conveyance of land, is only prima facie, and not conclusive evidence of the payment of the purchase money; in determining this cause, two questions only are necessary to be considered; and these, it must be admitted; are neither free from difficulty nor doubt.\\nHas the defendant signed a note or memorandum in writing of the agreement, as required by the statute of 29 Car. II, ch. 3? is the question which first presents itself. The nature of the requisite signature, m cases analogous to that now before us, although again and again examined and discussed in England^ and elsewhere, does not appear heretofore to have been the subject of judicial scrutiny in this state. In Lemayne. vs. Stanly, 3 Lev. 1, among the first cases upon the subject which arose after the statute, and which occurred only four years from its passage, after several arguments It was adjudged, that a will of lands in fee, in the handwriting of the testator, beginning \\\"In the name of God, Amen. I John Stanley make this my last will and testament,\\\" &c. not subscribed by the testator, but subscribed by three witnesses in his presence, Was a good will. \\\"For (in the language of the court,) being written by himself, and his name in the will, 'tis a sufficient signing within the statute, which does not appoint where the will shall be signed, in the top, bottom or margin, and therefore-a signing in any part is sufficient. \\\" This case turned on the construction of the fifth section of the Statute of Frauds. The case before us depends on the intrepretation of the fourth section, but the phraseology of both sections, as respects signing, is equally imperative, and substantially the same. In Knight vs. Crockford, 1 Esp. Rep. 190, the doctrine of Lemayne vs. Stanley is established in a case arising under the fourth section. At the trial the plaintiff produced a memorandum of the agreement, beginning \\\"I James Crockford, agree to sell,\\\" &c. but signed only by the plaintiff, and witnessed by one Mills. On the objection that the agreement was void within the Statute of Frauds, as not being signed by the defendant, it only beginning \\\"I James Crocks ford agree,\\\" &c. and not having his name subscribed to it, Eyre, Chief Justice, held \\\"that the agreement contained a sufficient signing within the Statute of Frauds, by beginning in the defendant's own handwriting, \\\"I James Crockford agree,\\\" &c. In Bawdes vs. Amherst, 1 Eq. Ca. Ab. 21, Lord Chancellor Cowper said, \\\"he knew of no. case where an agreement, though wrote by the party himself, should bind, if not signed, or in part executed by him;\\\" adding, that the agreement was susceptible of alterations or additions, and might have been entirely broken off.\\nAlterations made by the defendant in his own handwriting in the draught of an agreement, and a delivery thereof to an attorney to he engrossed, were held not to be a, signing within the statute, in Hawkins vs. Holmes, 1 P. Wms. 770. In reply to the argument of the plaintiff's counsel on the plea of the Statute of, Frauds and Perjuries, Mr. Williams answers, \\\"that the statute requires that the party, or ,some person by him lawfully authorised, should sign the writing; and though the defendant had altered the draught with his own hand, yet this could not be called a signing; that, the statute requires signing as a material circumstance, which is not to be dispensed with in equity any more than at law; that if the defendant had himself wrote over the whole deed with his own hand, without signing it, this had not been sufficient; for the statute has made signing absolutely necessary for the completion of the contract J for which purpose I cited the case of Ithel vs. Potter.\\\"\\nReferring to the case of Hawkins vs. Holmes, 1 P. Wms. 770, and Ithel vs. Potter, as there cited, Sugden, in his valua ble treatise upon the Law of Vendors, 55, (73,) states, that \\\"the mere altering the draft of the conveyance will not take a case out of the statute; neither will the writing over of the whole draft by the defendant with his own hand, be sufficient, as there must be a signature. To this rule (he adds.) we may p\\u00e9rhaps refer the case of Stokes vs. Moore, 1 Cox, 219, where the defendant wrote instructions for a lease to the- plaintiff, in these words, viz. \\\"The lease renewed; Mr. Stokes to pay the King's tax; also to pay Moore \\u00a324 a year, half yearly; Mr; Stokes to keep the house in good lenantable repair, &c. Stokes, the lessee, filed a bill for a specific performance; and'the court of exchequer held it not to be a sufficient signing, to take the agreement out of the statute;\\\" although it was not necessary to decide the point. In Stokes vs. Moore, the Lord Chief Baron, in delivering his opinion says, \\\"this is no formal signature of the defendant's name, ahd the question is, whether so inserted and written by the defendant, is a sufficient signing? The purport of the statute- is manifest, to avoid all parol agreements, and that none should have effect hut-those signed in the manner therein specified. It is argued' that\\\" the name being inserted in any part of the writing is a sufficient signature. The meaning of the statute is, that it should amount to an acknowledgment by the party, that it is his agreement, and if the name does not give such authenticity to the instrument, it does not amount to what the statute requires.\\\" In the same case and to the same effect is Baron Eyre equally explicit. \\\"The signature, (says lie,) is to have the effect of giving authenticity to the whole instrument; and if the name is inserted so as-to have that effect, I do not think it signifies much in what part of the instrument it is to be found-; it is perhaps difficult, except in the case of a letter with a postscript, to find an instance where the name inserted in the middle of a writing, can well have that effect; and there the name being generally found in a particular place by the common usage of mankind, it may very probably have the effect of a legal signature, and extend to the whole; but I do not understand how a name inserted in the body of an instrument, and applicable to particular purposes, can amount to such an authentication as is required by the statute.\\\" The case, however, was decided on the ground, that the memorandum was not the whole or final agreement between the parties. Roberts, in his treatise on the Statute of Frauds, 121, in commenting ' on the signing required by the statute, tells us \\\"the place of the signature seems not to have been regarded as of much importance, If the name is inserted in any part of the instrument, it may operate as a signing under the Statute of Frauds? but then it must have been inserted for the clear and only purpose of giving authenticity to the instrument.\\\" The same principle is sanctioned by Sugden, in his Law of Vendors 56, (74;) and is recognized in Ogilvie vs. Foljambe, 3 Merivale, 52, in which the Master of the Rolls states, \\\"it is admitted, that provided the name be inserted in such manner as to have the effect of authenticating the instrument, the provision of tire act is complied with, and it does not much signify in what part of the instrument the name is to be found.\\\"\\nIf the correctness of this general rule be admitted, for the establishment of which it must be confessed that the authorities, herein before referred to, are of the most imposing character, it cannot be contended, that the writing, upon which this action is founded, takes the case without the statute, as in no part of it is the name of the defendant written for the purpose of giving it authenticity, or acknowledging it to be genuine, But if these authorities be minutely and separately examined, they are not of that conclusive nature, which might be ascribed to thepi on a more superficial examination. The cases of Lemayne vs. Stanley, and Knight vs. Crockford, simply show, that a technical or formal signature is not requisite, and that a will of agreement without the subscription of the party making it, commencing, \\\"I, A B,'* &c. if in his own handwriting, is sufficiently signed. Nothing is s\\u00e1id \\u00f3t \\u00e1ny general rule by which cases of this nature are to be tested.\\n,The doctrine of Lord Chancellor Cowper, in Bawdes vs. Amherst, if received with the meaning usually ascribed to it,' viz. that a formal signature is necessary, is contradicted by Le~ \\u2022mayne vs. Stanley, Knight vs. Crockford, Saunderson vs.' Jackson, and another, 2 Bos. fy-Pull. 238, and Ogilvie vs^. Foljambe; and is denied to be law by Lord Hardtoicke iii Welford vs. Bedzely, 3 Atk. 503, and its repudiation has been sanctioned by all subsequent writers upon the subject.\\nHawkins vs. Holmes differs from the present case in many essential particulars. There the instrument was in the hand\\u00bb writing of a stranger to the contract, and not of the party against whom it was attempted to be enforced. It does not appear, (nor, from the nature of the transaction is it at all probable that it were so,) that the writing of his own name was any part of the alterations made; nor if it were, that it was so inserted as to govern or be applicable to all the provisions of the contract.\\nIthel vs. Potter not being reported, we know not that its facts bore any analogy to those now under consideration. 'Tis true Mr. Sugden understood Mr. Williams as asserting, that in Ithel vs. Potter it was determined, that the writing over the whole draft by the defendant, with his own hand, will not be sufficient. But the language of Mr. Williams would bear, and is perhaps grammatically more susceptible of a different interpretation, viz. \\u2014 that the only purpose for which Ithel vs. Potter was cited, was as establishing the immediately preceding legal position, that 'the statute has made signing absolutely necessary for the completion of the contract;\\\" and that the assertion of Mr. Williams, that the writing over the whole draft by the defendant, with his own hand, will not he sufficient, was an inference of counsel by way of argument, supposed to be deducible from the decision in Ithel vs. Potter, that signing was absolutely necessary. At all events an equivocal statement of a case, in the argument of counsel, which has never been reported, is an authority of the most feeble character.\\nThe bearing of the decision in Stokes vs. Moore is certainly not so easily\\\" obviated; as the similitude of that case to the one now before us, is much greater than that of any other of the cases herein before referred to. But of the doctrine in that ease Lord Eldon is reported to have said he had some doubt. (Vide Sug. Ven. (55,) 73.) It may also be added, that the decision is in the nature of an obiter dictum, as the decree was pronounced, and bill dismissed, on the ground that the memorandum did not contain the whole or final agreement between the parties. Admit, however, the decision to he correct, and made too because the signing was not sufficient, it does not set- tie the question now in controversy; the name, as, there inserted,was only, applicable to particular purposes, and did not necessarily connect; itself with, and operate on every other part of the:,agreement. In Ogilvie vs. Foljambe, the Master of'the Rolls, in, a part, of,his opinion, sanctions the inference, that he did not use the word authenticating in. its-usual literal import, but in a sense entirely consistent with the plaintiff's right to recover.\\nThis general rule as to what must be the object in writing the name which is necessary to constitute a signing within the statute is of modern origin and first presents itself in Stokes vs. Moore, decided in 1786; and is afterwards adopted by Sugden and Roberts, and by Sir Samuel Romilly in arguing the Case of Morrison vs Tumour, 18 Ves. 180, in which he states that \\\"a man thus describing himself in the third person, has never been decided to have signed within the act of parliament, which requires a signature as attesting what he has written. It is not necessary to sign it as an agreement; but he must sign. In the instance of the will, the name though in the beginning, authenticated the whole instrument, as that by which the testator meant to abide as his will, which is very different from a name occurring in the third person.\\\"\\nThe object of the statute being to substitute written for oral evidence, and thereby, prevent frauds, and perjuries, its almost contemporaneous exposition, in Lemayne vs. Stanley, announces to us, that a liberal and free construction is to be given it that substance, and not form, amounts to a compliance witits provisions, that if the name of a testator appear in any part of a will written by himself , it is sufficiently signed. The same principle, is recognized in Knight vs. Crockford, and in Welford vs. Beazely; in deciding, the latter of which cases the words of Lord Hardwicke are 'the meaning of the statute is to reduce contracts to a certainty, in order to avoid perjury on the one hand, and fraud on the other; and therefore, both in this court, and,.thp, courts of common law, where an, agreement h\\u00e1s been reduced to such a certainty, and the substance of -the statute has been complied with in the material part, the: forms' have never been insisted,on.\\\" Can it then be denied, that such object of the statute is as completely gratified, as much certain-, ty attained by the agreement here relied on,.as if Jt had bee\\u00bb. written in the first instead of the third person? It is not a refinement upon subtlety, a total sacrifice of substance to form, to say, that if the agreement had commenced, \\\"Whereas I, Samuel S. Thomas, have purchased of John S. Frazier, \\\" &c. the signature is complete, the objects of the statute have been accomplished, and the contract is available; but if it commences, as it does here, \\\"Whereas John S. Frazier hath contracted to sell to Samuel S. Thomas'' &c. there is is no signing, the provisions of the statute have not been complied with, and the contract is a nullity. And yet such is the effect of this rule, and the construction which has been given to the authorities referred to. An absurdity so glaring will never be sanctioned by this court but upon authorities too conclusive to be disregarded. Nor does this famous rule appear to be consistent with the reasoning of the learned tribunal in the case in which it was adopted, or free from doubt or unshaken hy judicial decisions of the country in which it was promulgated. In Stokes vs. Moore, Baron Eyre, after stating the rule says \\\"hu\\u00ed. I do not understand how a name inserted in the body of an instrument, and applicable to particular purposes, can amount to such an authentication as is required by the statute.\\\" But if a ease had arisen like the present, where the name is inserted in such a way as to control the whole agreement, and be applicable to every purpose of it, the inference would not be unreasonable, from the learned Baron's own reasoning, that he did understand how it could amount to such an authentication as the statute requires. Moreover, the case of Stokes vs. Moore, is now understood to have turned, not upon the circumstance of the name being contained in the body of the instrument, but its being applicable to particular purposes only, and not governing the whole instrument: as fully appears from the opinion of the Master of the Rolls in Ogilvie vs. Foljambe. In which he says \\\"it is admitted, that provided the name be inserted in such manner as to have the effect of authenticating the instrument, the provision of the act is complied with, and it does not much signify in what part of the instrument the name is to be found. In Stokes vs. Moore the objection was that this authentication was wanting, the name being introduced incidentally in the middle of the paper, and referring, in gram matical construction only, to a single term in the conditions. There was no objection on the score of th\\u00e9 Christian name being wanting, but the ground of the decision was, that the name, being introduced where it was, did not govern the en\\u00bb tire agreement.\\\" From these remarks of the Master of the Rolls it manifestly follows, that he deemed an agreement, iii the handwriting of a defendant, with his name so inserted in the body of it, as to govern the whole agreement, sufficiently signed within the meaning of the statute. That the name of Samuel S. Thoms is so inserted in the agreement in question cannot' be denied, as it forms a part of every clause and provision which it contains. The case of Saunderson vs. Jackson, determined by Lord Eldon, whilst chief justice of the common pleas, is. also strongly in favour of the plaintiff, and the decison of the supreme court of New-York, affirmed in the high court of errors, in Clason vs. Bailey, 14 Johns. Rep. 487, presenting the identical question before us, is of the most imperious authority. Chancellor Kent, in delivering his opinion, there states, that \\\"it is a point settled, that if the name of a party appears in the memorandum, and is applicable to the whole substance of the writing, and is put there by him or by his authority, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom. Forms are not regarded, and the statute is satisfied if the terms of the contracture in writing, and the names of the contracting parties appear. This doctrine of Chancellor Kent, is so simple in its nature, so easy of application, so consonant to reason and common sense, that supported, as it is, by the opinions of Lord Hardwicke, Lord Eldon, and Sir Wm. Grant, it would be a safer guide to follow, than the technical rule to which the case of Stokes and Moore has given birth. Whether the name of the defendant therefore be so introduced as to authenticate the whole instrument or not, is deemed immaterial, if it be so inserted as to govern or be applicable to the whole substance of the writing.\\nIf it be conceded that Samuel S. Thomas is liable to an action on the agreement, the next and only remaining question to be considered is, can such action be sustained in the joint names of Higdon & Wife, the present plaintiffs? The agreement, designates no person to whom the purchase money is to be paid. View it then as a case of implied promise. Where the law is left to raise the assumpsit, it is always implied in favour of those who ar\\u00e9 the meritorious cause of action, or from whom the consideration moves. The consideration here being the .inheritance of the wife, in or over which, during his life only, has the husband any interest or control, in the absence of an express promise, the law will raise one to husband and wife, ora which the husband may, at his pleasure, either sue in his own. name, or in the names of himself and wife. But suppose ifc Be considered that the agreement does amount to an express promise to pay to the husband; is it'not perfectly consistent with legal principles, in analogous cases, that the husband having acted, by the consent of - the wife, concerning a subject matter over which he had no power or control but in virtue of such consent, shall be deemed to have acted on the account, and for ilie benefit of himself and wife. Nor would his concealment of the principles on which he acted at all vary the case. It is every day's practice for the owners of merchandize, or other property, to sue in their own names on contracts of sale made by their agents, to whom express promises to pay have been made, and with whom the vendee's dealt, as sole owners of the property, having no knowledge of their principals. So, also where one part-owner sells, as his own, the property of his firm, all the partners may sue. But there could be no concealment from the defendant of the intentions with which Thomas Higdon acted through his agent, John S. Frazier, as the condition of the bond of conveyance is, that the deed to Samuel S. Thomas shall be executed by Higdon and Wife. That the defendant is in anywise damnified by the present form of action, has not been even insinuated.\\nIt is not intended to impugn the numerous decisions' which have been cited, that a feme covert cannot be joined in an action to recover the price of property sold by her, and which belonged to her before coverture; or the value of services by her personally rendered, unless there be made to her an express promise of payment. But these decisions apply only to cases of goods and chattels, whjch by the marriage vested absolutely In the husband; as does the right of her personal services and \\u00e1re wholly inapplicable to \\u00e1 case where the rights of the wife pass not to the husband, hut remain and survive to her, and over which the htisband has no power of transfer, but by the consent and cb-operation of the wife.\\nBeing of opinion that, upon.the whole circumstances of the case, the plaintiffs are entitled to recover, and in the form of action too in Which they have sought to prosecute their rights, We reverse the judgment of the county court.\\nJUDOMENf REVERSED, AND PROCEDENDO AWARDED.\"}"
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+"{\"id\": \"1768389\", \"name\": \"Joseph Osborn Dugan vs. Robert S. Anderson\", \"name_abbreviation\": \"Dugan v. Anderson\", \"decision_date\": \"1872-06-21\", \"docket_number\": \"\", \"first_page\": \"567\", \"last_page\": \"590\", \"citations\": \"36 Md. 567\", \"volume\": \"36\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:06:40.345806+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph Osborn Dugan vs. Robert S. Anderson.\", \"head_matter\": \"Joseph Osborn Dugan vs. Robert S. Anderson.\\nSeparable Agreement \\u2014 Contract Indivisible \\u2014 Breach of Contract \\u2014 Immediate right of Action \\u2014 Damages \\u2014 Evidence.\\n\\\"Whe're ail agreement embraces a number of distinct subjects, wliicb admit of being separately executed and closed, the general rule is that it shall he taken distributively, and each subject he considered as forming the matter of a separate agreement after it is so closed.\\nIn the summer of 1870, a contract was entered into between the plaintiff\\\" and defendant, by which the latter agreed to employ the former as clerk in his store, at a salary of not less than 31,500 per annum, until the 1st of March, 1871, and then to receive him as partner in his business for one. year, certain, and allow him one-third of the profits; in pursuance of this promise and agreement by the defendant, the plaintiff gave up a situation and employment in which lie was receiving1 $2,000 per annum, and entered into the service of the defendant as proposed, and continued therein until discharged and removed therefrom by tlio defendant; the plaintiff- before instituting a suit against the defendant, offered to continue to serve him until the 1st of March, 1871, and then to become a partner in the business under their agreement, hut the defendant, before suit brought, denied there was any such agreement between himself and the plaintiff, and refused to permit the plaintiff to continue in his service until the 1st of March, 1871, and required him to leave Ms employment, and forbade him to remain in the store in which the business was conducted, and denied he was 'entitled to become a partner therein from that date, and refused to receive him as such, when that time should arrive. The defendant did not at any time before the 1st of March, 1871, retract his action towards the plaintiff, and offer to receive him again into his employment until that time, and then to admit him as partner in the business as aforesaid. On the 5th of January, 1871, the plaintiff' instituted suit against the defendant for a breach of the contract. Held :\\nThat while in one sense, the contract between the parties was in its nature and terms, separable and apportionable \\u2014 the services as clerk and the partnership being- capable of separate execution \\u2014 it was in respect to tlio intention of tlio parties, to he entire and indivisible. The consideration for the plaintiff\\u2019s action in entering into it, was not merely that he should ho employed until the 1st of March, 1871, at a salary, hut that he should ho so employed and he taken as a partner at that time for a year, certain; and the conduct of the defendant consli tuted a breach of the contract, which gave an immediate right of action, and entitled the plaintiff to recover damages as for a breach of the entire contract.\\nThe plaintiff, after offering evidence tending to establish the contract entered into between the defendant and himself, proved that he faithfully and efficiently in all particulars, discharged his duties under it, as long as he was allowed to execute it. He also proved that the engagement of the defendant to take him into his employment, first at a salary, and then to receive him as a partner, was absolute, and not in any way dependent upon the defendant\\u2019s wanting him or not, or of his being satisfactory to the defendant; that he was not taken on trial, and his being taken into partnership was not to ho a matter of contingency ; that the defendant knew his qualifications and habits perfectly, having been intimate with him for many years, and knew what his position with Neale, his former employer, was, and what salary he was receiving from Neale, and what Neale\\u2019s opinion of him was, and expressly waived in advance all claim to make the continuance of his employment and the taking him into partnership, dependent upon his being found satisfactory. Ho further proved he was in every way competent for the duties ho assumed to discharge, and discharged them faithfully and fully. Held :\\nThat this testimony, coming from the plaintiff himself, as a witness, did not amount to such anticipation of -the proof to be offered in evidence on the ground of his bad habits and incompetency, as ought, in the exercise of a sound discretion by the Court, to preclude him from replying to the specific proof adduced by the defendant, to wit: that .while he (the plaintiff) was in the employ of Neale, where he had been since 1861, he was in the habit of drinking, and was more or less under the influence of liquor much of his time during that period, so as to render him unfit for business, and incapable of discharging his duties, and was negligent and inattentive. The plaintive having been properly allowed to reply to this, hy offering evidence tending to show that while he was at Neale\\u2019s he attended to his duties diligently and faithfully, he was further entitled to prove, in reply to the evidence of bad conduct, bad habits, and incompetency, that all the while ho was at Bird\\u2019s, where he had been employed for many years, and up to the very day he wont into the service of Neale, that he was capable, efficient, attentive to his business, and of unexceptionable habits.\\nAnd this proof in its entirety, coming down as it did to the very day the plaintiff left Bird and went to Neale, did not relate to a period so distant and remote from that in respect to which the defendant had offered proof of incompetency and bad habits, as to make it altogether irrelevant and therefore inadmissible.\\nAppeal from the Superior Court of Baltimore City.\\nThis was an action brought by the appellee against the appellant for the breach of a contract. The facts of the case are stated with sufficient fulness in the prayers of the respective parties and in the opinion of the Court.\\nFirst Exception: After evidence had been offered on both sides, the plaintiff further proved by J. Edward Bird, that he had been for many years a dry goods merchant in Baltimore, and the plaintiff' had been in his employment as a clerk, salesman and superintendent for sixteen or seventeen years, down to 1861, when he went to Neale\\u2019s. The plaintiff\\u2019s counsel then proposed to ask the witness the following question:\\nPlease state what you know of his habits of punctuality, attention to his duties and efficiency, wffiile in your employment. The defendant\\u2019s counsel objected to the question as not applicable by way of rebuttal to any of the defendant\\u2019s proof, and because it was irrelevant, and related to a time anterior to that covered by the defendant\\u2019s proof.\\nThe Court (Dobbin, J.) overruled the objection, on the ground that according to the recollection of the Court, the testimony of the defendant\\u2019s witness, Fisher, had impugned the character of the plaintiff in the particulars inquired of, while at Neale\\u2019s. Thereupon the question being put, the witness testified, that while in his employment, the plaintiff was a capable and efficient salesman, attentive to business and of unexceptionable habits. The defendant excepted to both the question and the ansvmr.\\nSecond Exception: The plaintiff offered the three following prayers:\\n1st. If the jury shall find from the evidence that the plaintiff wTas employed by the witness, Neale, at a salary of $2,000 a year, and that at that time there wras a firm composed of the defendant and the witnesses Bowen and McCabe, existing under the articles of co-partnership offered in evidence; and if they'- shall further find, that while the plaintiff was so employed by said Neale, the defendant agreed with the plaintiff, without any condition as to plaintiff being taken on trial, that if the plaintiff would give up his employment under said Neale,-t-he defendant would take the plaintiff into the employment of himself and said Bowen, as remaining members of said firm, after the retirement therefrom of said McCabe, until the 1st of March, 1871, and would allow the plaintiff for his services until said time, the share of the profits of said business which would have accrued to said McCabe as a member thereof to said time, had said McCabe remained in .said firm, and in case said share of said McCabe of said profits should be less than at the rate of $1,500 per annum, the plaintiff should receive compensation for his services to March 1st, 1871, at the rate of $1,500 per year; and if they shall further find that the defendant, at the same time, also promised and agreed with the plaintiff as aforesaid, that the plaintiff should, on the 1st of March, 1871, become a partner with the defendant and said Bowen in their business for one year certain, and receive one-third of the profits of said business; and if they shall further find, that in consideration of the said promises of the defendant to employ the plaintiff until the 1st of March, 1871, and at that time to admit him as a partner, the plaintiff did give up his employment under said Neale, and did enter the service of said defendant and said Bowen as proposed; and if they shall further find that the plaintiff continued in the service of the defendant and Bowen until he was discharged and removed therefrom by the defendant, and that the plaintiff, before the institution of this suit, offered and tendered to continue to serve said defendant and Bowen until the 1st of March, 1871, and then to become a partner in said business under the agreement aforesaid, but that the defendant, before the institution of this suit, denied that there was any such agreement between himself and the plaintiff, as is above set forth, and refused to permit the plaintiff to continue in the services of defendant and Bowen until the 1st of March, 1871, and then become a partner in said business as aforesaid, and required the plaintiff to leave the employment of said defendant and Bowen, and forbade him to he and remain in the store in which said business was conducted, and denied that the plaintiff was entitled to become a partner in said business from March 1st, 1871, and refused to receive him as such vdien that time should arrive; and if they shall further find that the defendant did not, at any time before March 1st, 1871, retract his said action towards the plaintiff, and offer to receive him again into the employment of himself and said Bowen until the 1st of March, 1871, and then to admit him as a partner in said business as aforesaid, then the plaintiff was entitled to institute this suit at the time it was brought, to recover as for a breach of the entire contract above required to be found.\\n2d. If the jury find the facts in the first prayer, then the plaintiff is entitled to recover, unless the jury shall find that the acts of the defendant towards the plaintiff, therein set forth, were occasioned by some substantial incompeteney or unfitness or misconduct on the part of the plaintiff, occurring after the inception of the contract, or by reason of the defendant, after the inception of the contract, acquiring a knowledge of some unfitness or disqualification of the plaintiff to perform said contract on his part, unknown to the defendant at the inception of the contract.\\n3d. If the jury find the facts in the plaintiff\\u2019s first prayer, the defendant had no right to terminate said contract without compensation to plaintiff) merely because the defendant believed that said contract -would not be profitable.\\nThe defendant offered the eight prayers following:\\n1. The writ in this action having been issued prior to the 1st of March, 1871, the question of damages for the alleged refusal of the defendant to take the plaintiff into partnership on that day, under the contract to that effect alleged and sought to be set up, is not before the jury for consideration.\\n(2. Prayer withdrawn.)\\n3. If the jury shall find from the evidence that the plaintiff was employed by the defendant on trial, the defendant had a right to discharge him at pleasure, and the plaintiff can recover no damages for such discharge.\\n4. If the jury shall find from the evidence that the defendant\\u2019s taking the plaintiff' into partnership was to depend upon its being satisfactory to him to do so, on the 1st of March, 1871, the plaintiff is not entitled to recover any damages for the refusal of the defendant so to take him.\\n5. Even if the jury shall find that the defendant employed the plaintiff until the 1st of March, 1871, to act as superintendent and otherwise in the store on Gay street, without any stipulation that the defendant might discharge him for incapacity, misconduct or inattention, the defendant still had the lawful right to discharge him, if the jury shall find that he was incapable of discharging the duties so prescribed, or was inattentive thereto, or negligent thereof, or failed otherwise suitably and faithfully to comply with his obligations.\\n6. Even if the jury shall find that the defendant agreed to take the plaintiff into partnership on the 1st of March, 1871, as alleged and sought to be proven by the plaintiff, the defendant had still the lawful right to refuse to do so, if the jury shall find that the conduct of the defendant in the intermediate time was such as to shew that he was incapable of discharging the duties which he was to perform in such partnership, or was so neglectful or careless, or of such habits and conduct-as, in the opinion of the jury, would have rendered such partnership a failure for the purposes in contemplation of the parties in its formation.\\n7. That there is no evidence in the cause of any request or demand addressed by the plaintiff to \\\"the defendant to take him into partnership on the 1st of March, 1871, or of any tender of his readiness to enter into such partnership, or any refusal of the plaintiff to take him into the same, and the plaintiff cannot therefore recover any damages on account of any alleged failure or refusal of the defendant so to do.\\n8. That even if the jury should find for the plaintiff under the Court\\u2019s instruction, and should deem it proper under said instructions to find damages for the plaintiff for breach of the alleged contract to take the plaintiff into partnership on the 1st of March, 1871, the jury .are nevertheless not authorized to give any greater damages for the breach of said contract than one-third of the net profits of the business for one year from that period, less such amount as the jury may find that the plaintiff has otherwise earned, or might or ought, by due and reasonable industry and diligence, to have earned during such part of said year, as has already elapsed, and may and ought so to earn during the remainder thereof, in the judgment of the jury.\\nThe defendant excepted to the first prayer of the plaintiff, because there was no evidence to support it in several particulars :\\n1st. There is no evidence in the cause that the Avithdrawal of the plaintiff from the service of Neale Avas any part of the consideration of the agreement or understanding betAvcen the plaintiff and defendant, or Avas involved in the same in any other Avay than that the plaintiff could not possibly go into Dugan\\u2019s service Avithout going out of Neale\\u2019s \\u2014 the only consideration proven being the engagement of Anderson on the one side to render certain services, and the agreement of Dugan on the other side to take him into his service, at a certain salary, till March 1st, 1871, and admit him into partnership on that day.\\n2d. There is no evidence Avhatcver in the cause that the plaintiff, at any time before the institution of this suit, tendered himself ready to the defendant to become a partner in business AA\\u2019ith him on the 1st of March, 1871, or that the defendant denied, before the institution of this suit, that the plaintiff AA'as entitled to become a partner in said business from March 1st, 1871, or refused to receive him as such when that time should arrive.\\nThe Court granted the first and third prayers of the plaintiff, and rejected his second prayer as offered, but granted it subject to the qualification contained in the defendant\\u2019s third, fourth, fifth and sixth prayers, provided the jury should find the hypothesis of facts contained in said prayers of the \\u2022defendant.\\nThe Court granted all the prayers of the defendant but the first and seventh, which it refused, and the second, which was withdrawn. To the rejection of his first and seventh prayers, and to the granting of the plaintiff\\u2019s prayers, the defendant excepted.\\nA verdict was rendered in favor of the plaintiff for \\u00a72,000, and judgment was entered accordingly. The defendant appealed.\\nThe cause was argued before Bartol, C. J., Bowie, Grasos, Miller and Alyey, J.\\nT. Wallis Blaldstone and 8. Teaclcle Wallis, for the appellant.\\nThe question proposed to Mr. Bird should not have been allowed, and liis answer to it was not proper to go to the jury.\\nThe testimony, if proper in itself, was not admissible at the stage of the cause when it was offered, and after the course which the proof'had taken. It is perfectly clear law, now, that if the plaintiff, instead of waiting till the defendant has closed, to produce evidence in reply, thinks proper to anticipate the defence and repel it in advance, he must exhaust his proof on the point anticipated, and will not be permitted to return to the same subject after the defence has been heard. 1 Sharswood\\u2019s Starkie, 552, (top ;) 1 Taylor on Ev., sec. 357.\\nIn the present controversy, the appellee might have contented himself, if he had chosen, with proof of the contract and his fulfilment of it, followed up by proof of breach and damages. This was his case. He was under no obligation to' prove his character, capacity or efficiency till the defence had assailed them. He chose to do otherwise. He proved in chief that he was a person of large experience and much skill in his business, and that his conduct and attention to duty had commanded the approbation of his employer, Mr. Neale. He further proved that he was in every way competent for the duties he assumed to discharge, and that the appellant knew his qualifications and habits perfectly. lie might then have proved, with equal propriety, and in like manner, (if it were admissible at all,) that his qualifications and habits had been as satisfactory to Mr. Bird as to Mr. Neale. But he did not. He finished his general evidence on that point without calling Mi'. Bird, and he left himself no right to rebut any general proof to the contrary on the part of the defence. He retained only the right to rebut particular tacts which the defence might set up ele novo. The defence proceeded to set up no new particular facts, (pertinent to the present question,) except those of actual misconduct. These the appellee had the right to rebut, and he did give evidence tending to rebut the testimony of the appellant\\u2019s witness, Fisher, by which his (appellee\\u2019s) proof of his deportment at Neale\\u2019s had been contradicted. But that testimony was itself responsive proof on the part of the appellant, and it was confined to the appellee\\u2019s conduct at Neale\\u2019s, and nowhere else. Proof of the appellee\\u2019s behavior at Bird\\u2019s was, therefore, simply nothing in the way of rebuttal, .and the Court\\u2019s adjudication that it was competent to show that the appellee had been a faithful and efficient clerk at Bird\\u2019s, because his character in the same particulars while at Neale\\u2019s had been impugned, was, with great respect, a plain non sequitur.\\nBut the testimony, in itself, was altogether inapplicable to the issue. It was not proof of general character or reputation, but of particular facts occurring or existing ten years before the facts in controversy. The appellant had not attempted to assail the appellee\\u2019s fitness or habits by general proof, nor by proof of facts anterior to the period in controversy, except in the single point touched by Fisher\\u2019s testimony, and that was in contradiction of facts set up affirmatively in chief by the appellee. 'Whether the appel lee was sober or drunken, capable or incapable, at Bird\\u2019s, before the war, had nothing to do with the case, and was applicable to no issue that had been raised in it. The proof should have been excluded therefore as, per se, irrelevant and inadmissible.\\nThe appellee\\u2019s first prayer, which was granted, allowed the jury to make two assumptions, viz:\\nFirst: That it was part of the agreement between the parties that \\u201c the plaintiff would give up his employment with Neale,\\u201d and that he did so.\\nSecond: That the plaintiff, before suit brought, tendered himself to the defendant to become his partner from March 1st, 1871, but the defendant -refused to permit him to become his partner from that time, and refused to receive him as such when that time should arrive.\\nThe appellant insisted that there was no evidence to support the said assumptions, or either of them, and filed his several objections to the prayer on that ground :\\n1st. There was no proof in the cause that the appellee\\u2019s leaving Neale was any part of the contract in controversy, or had any connexion with it further than arose from the impossibility of the appellee\\u2019s being in two places at once. He could not go to Dugan without going from Neale. The evidence, it is believed, will clearly maintain this objection. Nor could the appellee\\u2019s leaving Neal\\u00e9 have been properly put in proof. It had nothing to do with the issue. The appellee agreed to go to the appellant on certain terms, and he sued because those terms, as he alleged, were not complied. with. He did not sue for his loss from leaving Neale, but for what he was to have had and ought to have received from Dugan. The eighth prayer of the appellant, which was granted without dispute, defined properly the limit and measure of his damages. The matter.of leaving Neale, as introduced into the first prayer of the appellee, was consequently irrelevant, calculated to mislead the jury and withdraw their attention from the true points in issue and to set up a matter of aggravation which was aside from the merits of the controversy. Its introduction, in itself, should have caused the prayer to be rejected, even if otherwise unobjectionable.\\n2d. There was no proof that the appellee tendered himself as partner, or was refused, as the prayer assumes. This point is raised by the appellant\\u2019s seventh prayer, as well as by the objection heretofore referred to.\\nThe Court will observe that the contract set up by the appellee was to employ the appellant as clerk till March 1st, 1871, and then take him for a year into the partnership existing between himself and Bowen. The suit was brought on the 5th of January, 1871, three months before the time for the contemplated partnership arrived, and of course before the appellee could possibly tender himself ready to enter into it in fact. The parties quarrelled in December, 1870, while the employment of the appellee continued as clerk, and the appellee swore that the appellant then notified him that he \\u201c desired no further business relations with him.\\u201d Matters becoming aggravated, the appellee swore that by the advice of counsel he visited the appellant about the 31st of December, 1870, and told him he was ready to perform his part of the contract, and wanted to know whether the appellant was ready to perform his. The appellant swore he had no contract with him. The appellee replied that he had, and that he (appellee) was prepared honorably to carry it out.\\nThere is not a particle of proof on either side, that the appellee at any time signified his readiness to enter into the proposed partnership; that appellant himself alluded to it; or that anything was the subject of discussion between them except the determination of the appellant to discharge the appellee from his service as clerk, and the determination of the appellee not to be discharged.\\nThe prayer is further believed to be vicious in its instruction that the plaintiff, upon its hypothesis of facts, was entitled to institute the suit at the time it was brought, to recover as for a breach of the entire contract, &c. The proposition intended to be put, it is presumed, was, that on the theory of the prayer, the suit on the entire contract was not premature. As the prayer stands, however, it asserts the right to sue to recover for breach of a contract, without requiring the jury to find that the plaintiff had damage from its being broken. The prayer should have concluded \\u201c then the plaintiff is not precluded by the fact that this suit was instituted before the 1st of March, 1871, from recovering as for a breach of the entire contract above required to be found, if the jury shall find that the plaintiff was injured by such breach.\\u201d\\nThe second and third prayers of the appellee must fall with his first, if the latter be found erroneous, inasmuch as they rest on the same faulty assumption of facts.\\nThe appellant\\u2019s first prayer asserts, in direct antagonism to the proposition intended to be set up by the appellee\\u2019s first prayer, that as the action was brought prior to March 1st, 1871, the question of damages for refusing to take the appellee into partnership on that day, was not before the jury.\\nThe contract in controversy was from its terms and its nature separable and apportionable, and not entire, and whether it was entire or separable, it was not competent for the appellee to recover any damages for an alleged, breach-of that part of it which was not to be performed, and could not be performed, until after action brought. A repudiation of one part of it was not necessarily, nor in law, a repudiation of the whole of it, and furnished no ground of suit as for an entire breach. It would have been carrying the doctrine of the English cases far enough to have allowed the appellee to sue after the 1st of March, 1871, and before the expiration of the year, for damages which could only be ascertained when the year was over. .But a contract for a future personal association, such as a partnership, the performance of which would have been rendered impossible by the death or per sonal disqualification of either party before the period named, can hardly be held enforeible or broken until that period has been reached. Otherwise we have the anomaly of damages given for the non-formation of a partnership which might never have come to be formed, and which, if formed, might have resulted in loss rather than in profit. 2 Parsons on Contracts, 517, 521; 2 Smith\\u2019s Lead. Cases, 55, et seq.; Rodemer vs. Hazlehurst, 9 Gill, 294; Kercheral vs. King, 44 Missouri, 401; Taylor vs. Laird, 25 L. J., (Exch.,) 329; Sedgwick on Dam., 258, (marg. 229;) Philpotts vs. Evans, 5 M. & W., 475; Ripley vs. McClure, 4 Exch., 359; Frost vs. Knight, 5 Exch., (L. R.) 322; Greenway vs. Gaither, Campbell\\u2019s C. C. Rep., 227.\\nCharles Marshall, for the appellee.\\nUnder the contract set forth, and upon such a rescission of it as is alleged in the first prayer of the plaintiff, and supported by the evidence on the part of the plaintiff, the right of action as for an entire breach accrued at once, and the plaintiff was not bound to wait until March 1st, 1871, to bring suit.\\nThe contract was one and indivisible. The consideration for the plaintiff\\u2019s action was not merely that he should be employed, until the 1st of March, 1871, at a salary, but that ho should be so employed, and be taken as a partner at that time, the latter being as much a part of the consideration promised him for entering the service of the defendant as the former. Under such a contract as that alleged in the prayer, the conduct of the defendant was a breach which gave a right to an immediate action.\\nIn such a case the plaintiff had an inchoate right to the performance of the bargain, at the time stipulated, and a right in the meantime to have the contract kept open as a subsisting contract. lie could deal with the rights acquired under it in various ways for his advantage. On the other hand, if it be held that he cannot sue until the time fixed for taking him into partnership has passed, he can do nothing in the interval between his removal by the defendant and the 1st of March, which would disable him from tendering himself ready to form the partnership at that time. He would remain bound under a contract which the defendant claims the right to repudiate. Hochster vs. De la Tour, 20 E. L. & Eq. Rep. 157, 160 ; The Danube and Black Sea Company vs. Xenos,. 11 C. B. Reps., 152, (103 E. C. L. R. 151;) Avery vs. Bowden, 5 Ellis & B. 714, 728, (85 E. C. L. R.;) Goodman vs. Pocock, 15 Q. B. 576, (69 E. C. L. R.;) Emmens vs. Elderton, 4 House of L. Cases, 624; Frost vs. Knight, 20 Weekly Reporter, 471.\\nThis is a decision of the Court of Exchequer Chamber, reversing a decision of the Court of Exchequer, found in 5 Court of Exchequer, 322 (Law Reports,) and distinctly adopting the law as laid down in Hochster vs. De la Tour. Crabtree vs. Messersmith, 19 Iowa, 180 ; Addison on Contracts, 974; United States vs. Speed, 8 Wallace, 84; Masterton & Smith vs. Mayor, &c., of Brooklyn, 7 Hill, 62.\\nThere is a special exception to the plaintiff\\u2019s first prayer, \\u25a0upon the ground that there was no evidence that the withdrawal of the plaintiff from the service of Neale, was any part of the consideration of the agreement between plaintiff and defendant. In reply to this it may be said, that, so far as the plaintiff\\u2019s first prayer is concerned, it would make no difference if there had been no. evidence that the fact of the plaintiff leaving Neale was part of the consideration of his contract.\\nThat prayer requires the jury to find all the elements of a contract, of which, it is conceded, that there was evidence, namely, the engagement of the plaintiff on the one hand to render certain services, and of the defendant on the other to employ him at a salary, and take him into partnership on the 1st of March. If the jury found such a contract, and also found the refusal of the defendant to be bound by it, as set forth in the prayer, the right of action accrued immediately ou such refusal, and all that the prayer states about plaintiff leaving Neale\\u2019s employment is surplusage.\\nBut there was positive proof that the fact that the plaintiff was to give up his place at Neale\\u2019s, was part of the consideration on his part, for the promises of the defendant to him.\\nThe plaintiff\\u2019s second prayer was granted, but subject to the qualifications imposed upon it by the third, fourth, fifth, and sixth prayers of the defendant, all of which were granted. The effect of these prayers combined, gave the defendant every thing he could ask.\", \"word_count\": \"8593\", \"char_count\": \"49380\", \"text\": \"Miller, J.,\\ndelivered the opinion of the Court.\\nWe have to deal in this case simply with the questions of law presented by the two exceptions contained in the record. The jury have passed upon the conflicting testimony.\\nThe suit was instituted by the appellee against the appellant on the 5th of January, 1871, and was tried in October of that year. No question arises upon the pleadings. The plaintiff's ground of action as presented by his first prayer is, in substance, that in the summer of 1870 a contract was entered into between the parties, by which the defendant agreed to employ the plaintiff as clerk in his store at a salary of not less than $1,500 per annum until the 1st of March, 1871, and then to receive him as partner in his business for one year certain, and allow him one-third of the profits; that in pursuance of this promise and agreement by the defendant, the plaintiff gave up his then situation and employment, in which he was receiving $2,000 per annum, and entered into the service of the defendant as proposed, and continued therein until discharged and removed therefrom by the defendant; that the plaintiff, before the institution of this suit, offered to continue to serve the defendant until the 1st of March, 1871, and then to become a partner in the business under the agreement aforesaid, but the defendant, before suit brought, denied there was any such agreement between himself and the plaintiff, and refused to permit the plaintiff to continue in his service until the 1st of March, 1871, and required him to leave his employment, and forbade him to be and remain in the store in which said business was conducted, and denied he was entitled to become a partner therein from that date, and refused to receive him as such when that time should arrive. The prayer, after leaving to the jury to find these facts,, and also that the defendant did not at any time before the 1st of .March, 1871, retract his action towards the plaintiff and offer to receive him again into his employment until that period, and then to admit him as partner in the business as aforesaid, asserts, as a legal proposition resulting therefrom, that the plaintiff was entitled to institute the suit at the time it was brought, and to recover as for a breach of the entire contract above-required to be found.\\nThe defendant's first prayer denies the right of the plaintiff to recover damages for the alleged refusal of the defendant to take the plaintiff into partnership on the 1st of March, 1871, under the contract alleged and sought to be set up, because the action was instituted prior to that time. The proposition thus announced by the defendant's prayer is a denial of the law of Hochster vs. De la Tour, 20 English L. and Eq. Rep., 157, and of the English cases that have followed and sanctioned that decision. That case was decided in 1853, and gave rise to a controversy in the English Courts in which their most-eminent Judges have participated. It may be doubted whether the controversy is yet ended and the law of England in respect thereto finally settled. No decision upon the subject has yet been made by the House of Lords. The latest decision in the highest Court to which the question has been taken, is that of Frost vs. Knight, decided in the Exchequer Chamber on the 8th of February of the present year. That case was heard before and'decided by Chief Justice Cockburn and Byles, Keating and Lush, Judges, who, without dissent, reversed the judgment of the Court of Exchequer by Chief Baron Kelly and Channell, B., and sustained and affirmed the law of Hochster vs. De la Tour.\\nThe principle of this decision in cases to which it has been held applicable, is, that there is a breach of the contract when the promissor repudiates it and declares he will no longer be bound by it. It is said the promissee has an inchoate right to the performance of the bargain whieli becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his interests. His rights acquired under it may be dealt with in various ways for his benefita and advantage. Of all such advantages the repudiation of the contract by the other party, and the announcement that it never will be fulfilled, must of course deprive him. It is therefore quite right to hold that such an announcement amounts to a violation of the contract in omnibus, and that upon it the promissee, if so minded, may at once treat it as-a breach of the entire contract and bring his action accordingly. The contract having been thus broken by the promissor, and treated as broken by the promissee, performance at the appointed time becomes excluded, and the breach, by reason of the future non-performance, becomes virtually involved in the action as one of the consequences of the repudiation of the contract; and the eventual non-performance may therefore, by anticipation, be treated as a cause of action, and damages be assessed and recovered in respect of it, though the time for the performance may yet be remote. It is obvious that such a course must lead to the convenience of both parties, and though decisions ought not to be founded on grounds of convenience alone, they yet tend strongly to support the view that such an action ought to be admitted and upheld. By acting on such a notice of the intention of the promissor, the promissee may in many eases avert, or at all events materially lesson the injurious effects which would otherwise flow from the non-fulfilment of the contract; and in assessing the damages for breach of performance, a jury will of course take into account whatever the plaintiff has done or has had the means of doing, and, as a prudent man, ought in reason to have done, whereby his loss has been, or would have been, diminished.\\nThis in substance is the reasoning upon which such actions have been sustained by the English Courts. Most masterly arguments have been made at bar in this case, founded both in reason and authority, urging us on the one hand to adopt, and on the other to repudiate this as the law of Maryland. All the authorities discoverable by the research of eminent counsel, have been presented, reviewed and pressed upon our attention. But we do not feel ourselves justified in deciding a question of this importance, unless it be clearly presented by the record, and becomes essential to the determination of the very case before us. When so presented we shall be prepared, as it will be our duty, to determine it. But in the present record there is a question beyond and outside of Hochster vs. De la Tour, that is decisive of this case, and upon which in our opinion its decision must rest. The law of Hochster vs. De la Tour, relates simply to cases where there is a pre-contract for future services, or the performance of some act or duty at a future period, and where performance cannot be commenced, and was not by the contract contemplated, until that period arrives, and where the promissor prior to that time announces his intention not to abide by the contract. But in this case performance of the contract had been commenced and the plaintiff was discharged by the defendant and prevented from further executing it; and suit Avas not brought until after this discharge, though before the time for performance of that part of the contract relating to the partnership had arrived. The defendant broke up the contract Avliile it was being performed by the plaintiff, and the action was not commenced until after this breach. In this respect there is a broad distinction between the case before us and that of Hochster vs. De la Tour. It is an ancient and familiar rule of laAv that only one action can be maintained for the breach of an entire contract, and the judg ment, obtained by the plaintiff in one suit may bo pleaded in bar of any secojjfl proceeding. Sedgwick on Damages, 224. But the difficulty is to determine in what cases the contract is entire. Jn, determining this question the Courts must be guided by a respect to general convenience, and by the good sense and reasonableness of the particular case. Where an agreement embraces a number of distinct subjects, which admit of being separately executed and closed, the general rule is that it shall be taken distributively, and each subject be considered as forming the matter of a separate agreement after it is so closed. In one sense the contract before ns-was in its nature and terms separable and apportionablc, that is, its separate parts, the services as clerk, and the partnership, were capable of separate execution, and must have been performed consecutively in order of time. But in respect to the intention of the parties gathered from the facts presented by the plaintiff's prayer, it was in our.opinion to be entire and indivisible. The consideration for the plaintiff's action in entering into it was not merely that he should be employed until the 1st of March, 1871, at a salary, but that he should be so employed and be taken as a partner at that time for a year certain. The latter was as much a part of the consideration promised hint for entering the service of the defendant as the former, and the conduct of the defendant as stated in the prayer, in our judgment, constituted a breach which gave an immediate right of action and entitled the plaintiff to recover damages, in the language of his prayer, as for a breach of the entire contract.\\nSuch, in our opinion, is the true construction of this contract and the right of the plaintiff ensuing upon its alleged breach. The case bears a close analogy to that of Masterton & Smith vs. Mayor, &c., of Brooklyn, 7 Hill, 61, where the plaintiffs contracted, in January, 1836, with the defendants to furnish all the marble necessary for a certain public building then about to be erected by the defendants for .which they were to pay a specified sum in instalments as the work pro gressed. The plaintiffs entered into the performance of this contract and furnished marble thereunder until July, 1837, when the defendants suspended operations on the building and refused further to perform on their part, The contract could not have been fulfilled by the plaintiffs, even if they had been allowed to prosecute the work without interruption, before 1842. In 1840 they brought an action against the defendants founding it upon the breach which occurred in 1837. The action was not only sustained as well brought at that time, but the plaintiffs were allowed to recover in respect to so much of the contract as remained wholly unperformed at the time of the breach, the difference between what the performance would have cost them and the price the defendants had agreed to pay, estimating the former by the price of labor and materials at the time of the breach. All the Judges held that the contract being broken before the time of full performance the plaintiffs might elect to consider it in that light, and were not bound to wait till the period had elapsed for the complete performance of the agreement nor to make successive efforts of performance in order to recover all their damages, but might regard the contract as broken up so far as to absolve them from making further efforts to perform and recover full damages as for a total breach. So in Clossman vs. Lacoste, 28 Eng. L. & Eq. Rep., 140, where an agreement was made that the plaintiff should enter into the employment of the defendant for the sale of wines on commission, the agreement to continue for five years, $nd the defendant guaranteeing the plaintiff \\u00bf\\u00a3600 per annum as a minimum revenue from the business during the continuance of the agreement, it was held that the plaintiff might sue in any one year during the continuance of the agreement for breaches in any former year, but if there was an entire dismissal from the service before the expiration of the agreement, the plaintiff ought to include in one action the whole gravamen lie would- suffer by such breach of contract. The present case, in our judgment, falls within the rule of these decisions and others of similar import, and the law of Hochster vs. De la Tour is not necessarily involved in its determination. It follows there was no error in the rulings rejecting' the defendant's first prayer and granting the first prayer of the plaintiff, in so far as the legal propositions they contain are concerned.\\nThe record shows two special objections were taken in the Court below to the plaintiff's first prayer, on the ground there was no evidence to support certain facts thereby left to the finding of the jury. In reference to these, it suffices to say that we have examined the testimony embodied in the exceptions, and are satisfied there is proof from which the jury might have found, or legitimately inferred, the facts of which it is thus objected there was no evidence. What has already been said, also demonstrates the correctness of the ruling rejecting the defendant's seventh prayer. No objection was made in argument to the granting of the plaintiff's third prayer, that the defendant had no right to terminate the contract merely because he believed it would not be profitable ; and this ruling is undoubtedly correct. The plaintiff's second prayer, that if the jury found the facts stated in his first prayer, then he is entitled to recover, unles the jury shall find that the acts of the defendant towards him therein set forth, were occasioned by some substantial incompetency or unfitness or misconduct on the part of the plaintiff, occurring after the inception of the contract, or by reason of the defendant's acquiring after that time, knowledge of some unfitness or disqualification of the plaintiff to perform the contract on his part, unknown to the defendant at its inception, was granted, but Avith the qualifications contained in the defendant's third, fourth, fifth and sixth prayers, Arhich Avere also granted. The defendant's eighth prayer, as to the measure of damages for the breach of the contract in refusing to take the plaintiff into partnership on the 1st of March, 1871, AAas likewise granted. In respect to the law of the case, save in regard to the disputed questions already decided, it was stated as favorably for the defendant as he could have asked. We find no error in the rulings in this particular; and this disposes of the second exception.\\nThe first exception was taken to the ruling allowing a question to be asked the witness Bird, and the admission of his answer thereto as evidence to go to the jury. Whether this ruling, aS stated in the record, was matter of pure discretion in the Court below, irreviewable here, is a question we do not propose to decide. If the revisory power belongs to this Court, still in matters of this kind it must appear the ruling was manifestly wrong, and has occasioned substantial injustice. The general rule is that the plaintiff first adduces evidence to support the issue which he is bound to prove, reserving his right to rebut his adversary's proof if he establishes a prima fade case with respect to the issues which lie upon him. If however, the plaintiff at the outset thinks fit to call any evidence to repel the defendant's case, he will not in general be permitted to give further evidence in reply, for if such a privilege were allowed to the plaintiff, the defendant in common justice might claim the same, and the proceedings would run the risk of being extended to a very inconvenient length. 1 Taylor on Evidence, sec. 357; Sharswood's Starkie on Evidence, 552. But in deciding upon the admissibility of evidence called in reply, regard must be had to the circumstances of the individual case, and considerable latitude will necessarily be granted to the judge in the exercise of his discretion. 1 Taylor on Evidence, sec. 359.\\nIt appears that the plaintiff after offering evidence tending to establish the contract alleged, proved that he faithfully and efficiently, in all particulars, discharged his duties under it as long as he was allowed to execute it. He also proved that the engagement of the defendant to take him into his employment, first at a salary, and then to receive him as a partner, was absolute and not in any way dependent upon defendant's wanting him or not, or of his being satisfactory to the defendant, that he was not taken on trial, and his being taken into partnership was not to be a matter of contingency; that defendant knew his qualifications and habits perfectly, having been intimate with him for many years, and knew what his position with Neale, his former employer, was, and what salary he was receiving from Neale and what Neale's opinion of him was, and expressly waived in advance all claim to make the continuance of his employment and the taking him into partnership dependent upon his being found satisfactory. He further proved he was in every way competent for the duties he assumed to discharge, and discharged them faithfully and fully. All this testimony came from the plaintiff himself as a witness, and in our opinion it does not amount to such anticipation of the proof to be offered in defence on the ground of his bad habits and incompetency, as ought, in the proper exercise of a sound discretion by the Court, to preclude him from replying to the specific proof adduced by the defendant in that particular. That proof was in substance, that while the plaintiff was in the employ of Neale (where he had been since 1861) he was in the habit of drinking, and was more or less under the influence of liquor much of his time during that period, so as to render him unfit for business, and incapable of discharging his duties, and was negligent and inattentive. The plaintiff was allowed without objection (and properly so) to reply to this by offering evidence tending to show that while he was at Neale's, he attended to his duties diligently and faithfully. Up to the time he left Neale he had been for many years in the employment of the witness Bird. We see no good reason why he should not be allowed to prove in reply to this proof of bad conduct, bad habits and incompetency, that all the while he was in Bird's employ, where he continued up to the very day he went into the employment of Neale, that he was capable, efficient, attentive to his business and of unexceptionable habits. No stringent rule of evidence or practice forbids it. Nor did this proof in its entirety, coming down as it does to the very day he left Bird and went to Neale, relate to a period so distant and remote from that in respect to which the defendant had offered proof of incompetency and bad habits, as to make it altogether irrelevant and therefore inadmissible on that ground. We cannot therefore reverse the ruling in this exception. v\\n(Decided 21st June, 1872.)\\nJudgment affirmed. ^\"}"
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+"{\"id\": \"1774874\", \"name\": \"Frederick S. Blitz vs. Henry James and others, trading as Henry James and Company\", \"name_abbreviation\": \"Blitz v. James\", \"decision_date\": \"1869-07-02\", \"docket_number\": \"\", \"first_page\": \"264\", \"last_page\": \"269\", \"citations\": \"31 Md. 264\", \"volume\": \"31\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:38:14.090648+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bartol, O. J., Miller, Stewart, Brent, Grason and Robinson, J.\", \"parties\": \"Frederick S. Blitz vs. Henry James and others, trading as Henry James and Company.\", \"head_matter\": \"Frederick S. Blitz vs. Henry James and others, trading as Henry James and Company.\\nConstruction of the Law relating to the Inspection of Lumber in the city of Baltimore.\\nThe 481st section of the Public Local Laws of the city of Baltimore provides that, \\u201cwhenever the buyer or seller of any lumber or timber shall feel himself aggrieved by the measurement of any inspector, the buyer shall appoint one of the licensed inspectors, and the seller another, and they two shall select a third person to act as umpire, who shall be well acquainted with the kind of lumber or timber to be resurveyed, and not a licensed inspector, and the three persons so appointed shall re-measure and mark said lumber or timber, and their decision shall be final.\\u201d On the 29th of January, 1864, the plaintiffs, who were lumber merchants in Baltimore, sold to the defendant a quantity of lumber lying in a pile on the wharf in that city. The lumber was shipped to Washington. After its arrival there, the plaintiff sent to the defendant by mail an inspector\\u2019s certificate of the quantity of lumber sold to him. The lumber was inspected in Washington, and found to fall short in the number of feet sold, and the defendant refused to pay for the amount of the deficiency. In an action brought to recover this amount, Held :\\n1st. That tho purchase and delivery having been made in Baltimore, the purchaser was bound to know the Public Local Laws of that city relating to the inspection and sale of lumber.\\n2d. That upon the arrival of the lumber at Washington, and the defendant being dissatisfied with the inspection and measurement previously made, it was his duty, under the section of the law above cited, to have resorted to the means provided by that law for a correction of the previous inspection; and this was his only remedy.\\n3d. That the inspection in Washington, and the fact of the lumber having fallen short under that inspection, were altogether immaterial facts which could have no bearing or effect upon the issue to be tried, and the Court below was right in not permitting them to be considered by the jury.\\n4th. That the inspection of the lumber previous to its sale, and the marks put upon it by the inspector, furnished prim\\u00e9 facie evidence of the number of feet in the lot at the time of its sale and delivery, and in the absence of the proceedings which the law required the purchaser to resort to, if not satisfied, became conclusive of the number of feet it contained.\\n5th. That the law does not require an inspection whenever a sale of lumber is made, notwithstanding an inspection has been previously made.\\nAppeal from the Court of Common Pleas.\\nOn the 13th day of December, 1864, a writ of attachment on warrant was issued in this case, at the suit of the appellees against the appellant, a non-resident, for the purpose of recovering the sum .of $538.68, alleged to be due for lumber sold and delivered to the latter by the former, which writ was returnable to the January Term, 1865, of the Court of Common Pleas. The short note shows the cause of action to be for goods and wares sold and delivered. Certain lumber of the appellant was taken by the,Sheriff, and subsequently a bond was given and an appearance entered, and the attachment dissolved.\\nAt the January Term, 1865, the defendant pleaded that he never was indebted as alleged, upon which issue was joined.\\nAt tho trial, it appeared by the evidence that the appellant, on the 29th of January, 1864, purchased of the appellees a pile of lumber, lying on the wharf in Baltimore, at thirty cents per. hundred feet, to go to Washington for the use of the United States Government; that the lumber was shipped on two vessels for Washington ; that subsequently to its departure an invoice or inspector\\u2019s certificate, made a month before the sale by an inspector employed by the appellees alone, was mailed to the appellant at Washington. It was also proved that the appellant paid $1,719.50 on account of the lumber, but refused to pay the balance because the number of feet charged was not correct, of which he gave the appellees due notice. The appellant then offered to prove that the lumber, on its arrival at Washington, was inspected by a Washington City inspector and an inspector of the United States, for which the lumber was bought; that the lumber was falsely and incorrectly marked; that the lumber thus fell short. some 2,600 feet below the amount charged in the* account of the appellees; that some .of the boards; which were over-marked two feet each, had been retained at Washington for some time to be produced at the trial, but had been destroyed by fire. To the evidence thus offered the appellees objected and the Court refused to allow it to go to the jury; to this ruling the defendant excepted, and this constitutes the subject-matter of the first bill of exceptions.\\nThe plaintiffs offered one prayer, which was granted by the Court below, and the defendant offered two, which were rejected; and this action of the Court forms the ground of the second bill of exceptions. The character of these prayers is sufficiently stated in the opinion of the Court.\\nThe cause was argued before Bartol, O. J., Miller, Stewart, Brent, Grason and Robinson, J.\\nWm. Pinkney \\\"Whyte, for the appellant.\\nLuther M. Reynolds, for the appellees.\", \"word_count\": \"1973\", \"char_count\": \"11303\", \"text\": \"Qeasok, J.,\\ndelivered the opinion of the Court.\\nThe first exception of the appellant was taken to the refusal of the Court below, to permit him to offer proof to the jury that the lumber, which he purchased of the appellees, had been inspected in Washington City upon its arrival there, and, upon that inspection, had fallen short twenty-six hundred feet, some of the boards measuring one foot, and others two feet less than was represented by the inspector's mark. The lumber was purchased in the city of Baltimore by the appellant, and was shipped to him at Washington by his agent, Willis. The purchase and delivery having been made in Baltimore, the purchaser was bound to know the Public Local Law of that city, relating to the inspection and sale of lumber, even if he Avere not acquainted Avith the custom among lumber merchants there. The 481st section of the Public Local LaAA of Baltimore provides that \\\" whenever the buyer or seller of any lumber or timber shall feel himself aggrieved by the measurement of any inspector, the buyer shall appoint one of the licensed inspectors, and the seller another, and they two shall select a third person to act as umpire, who shall be well acquainted with the kind of lumber or timber to be resurveyed, and not a licensed inspector, and the three persons so appointed shall remeasure and mark said lumber or timber, and the decision shall be final.\\\" Upon the arrival of the lumber at Washington, and the appellant being dissatisfied with the inspection and measurement previously made, it was his duty, under the section of the law above referred to, to have resorted to the means provided by that law, for a correction of the previous inspection. This was his only remedy. The inspection in Washington, and the fact of the lumber having fallen short under that inspection, were altogether immaterial facts, which could have no bearing or effect upon the issue to be tried, and the Court below was right in not permitting them to be considered by the jury. Had there been an offer of proof that the lumber had fallen short in the number of boards, or that the inspection marks had been changed or obliterated, it would have been admissible. No such offer was, however, made, although the bill of lading, and invoice of the lumber, as well as the tale of the inspector, who had inspected the lumber a short time previously, were sent to the appellant, a few days after the sale.\\nThe second exception was taken to the granting of the appellees' prayer, and the rejection of the appellant's two prayers.\\nThe prayer of the appellees was correct in all respects, except, perhaps, in putting to the jury the finding of the custom among lumber dealers in Baltimore City, without there being any evidence in the cause to show that the appellant, who was not a resident of the city, had knowledge of it. But, as the appellant, as we have stated, was bound to know the Public Local Law of the place at which he was making his purchase, and which required him, if he was aggrieved, to pursue the remedy it provided, he was not injured by the prayer as granted.\\nThe inspection of the lumber previously to its sale, and the marks put upon it by the inspector, furnished prima facie evidence of the number of feet in the lot at the time of its sale and delivery; and in the absence of the proceeding, which the law inquired the purchaser to resort to, if not satisfied, became conclusive of the number of feet it contained. The appellant's first prayer was, therefore, properly rejected. His second prayer was based upon the theory that the law requires an inspection, whenever a sale of lumber is made, notwithstanding an inspection has been previously made. In this view of the law, we do not concur. The 477th section of the Public Local Law of Baltimor.e requires all lumber coming to that city to be inspected by a licensed inspector of the city, unless the same has been inspected by a licensed inspector at some one of the places named in the section. From the language of this section, the inference is plain, that all the law requires is, that it shall be once inspected by a licensed inspector in some part of the State, before it is sold in Baltimore. Section 478 provides, that lumber shall be inspected and sold in Baltimore by measurement only, and goes on to prescribe the rule for the measurement. If this section stood alone, it might bear the construction that all lumber was required to be inspected upon coming to Baltimore before it could be sold. But it must be taken and construed with the preceding section, which provides that lumber coming to Baltimore shall be inspected, unless it has been previously inspected at Port Deposit, Havre de Grace, or Perryville, or its vicinity. It will be seen too, from an examination of section 483, that no doubt can be entertained as to the proper construction of section 478. Section 483 provides, that if \\\" any person bringing lumber to Baltimore shall sell the same without having it inspected by a licensed inspector, unless the same has been previously inspected, as hereinbefore mentioned, he shall forfeit and pay a fine of five dollars per thousand feet, board measure.\\\" Section 480 provides for the payment of fees to the inspector, and directs that one-half shall be paid by the buyer, and the other half by the seller. This applies only in cases where an inspection is made at the time of a sale, but does not make it obligatory upon the seller to have an inspection made whenever a sale takes place. This is too plain for controversy, when considered in connection with section 483. Any other construction than the one which we have given to these laws would do violence to the laws themselves, and would result in expense and inconvenience to the lumber dealers of Baltimore City, which would be oppressive and intolerable. The Court below was therefore right in rejecting the appellant's second prayer, and its judgment must be afirrmed.\\n(Decided 2d July, 1869.)\\nJudgment affirmed.\"}"
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+"{\"id\": \"1794769\", \"name\": \"WILLIAM F. OWENS vs. EDWARD R. OWENS\", \"name_abbreviation\": \"Owens v. Owens\", \"decision_date\": \"1895-06-19\", \"docket_number\": \"\", \"first_page\": \"518\", \"last_page\": \"525\", \"citations\": \"81 Md. 518\", \"volume\": \"81\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:42:10.369170+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAM F. OWENS vs. EDWARD R. OWENS.\", \"head_matter\": \"WILLIAM F. OWENS vs. EDWARD R. OWENS.\\nMalicious Prosecution\\u2014 Testimony of Foreman of Grand Jury \\u2014 \\u25a0 Certificate by Trial Judge as to Testimony not Contained in Bill of Exceptions.\\nIn an action for malicious prosecution, it was held upon the facts that the evidence was sufficient to authorize the jury to find that the defendant caused the plaintiff\\u2019s arrest, that the same was without probable cause and malicious, and that the prosecution was at an end.\\nIn such action, when, in order to show the end of the prosecution, the foreman of the grand jury has testified that the case against the plaintiff was dismissed, it is not competent to ask him on cross-examination why it was dismissed, for the purpose of showing that the prosecution was abandoned at the instance of the defendant. Different reasons may have influenced different grand jurors, and in most cases they should not be permitted to assign reasons for their actions.\\nIn an action for malicious prosecution, evidence that after the arres and imprisonment of the plaintiff, efforts were made by the defendant to have the prosecution dismissed is not admissible, either in bar of the suit or in mitigation of damages.\\nThe certificate of the trial Judge, contained in the record, as to what was proved at the trial, will be considered on appeal, although not embodied in a bill of exception, when such certificate refers to the matter of the exception.\\nAn exception was taken to the action of the trial Court in rejecting certain evidence. Subsequently this fact was proved in the case by another witness, and it was so stated in a certificate of the trial Judge filed the same day as the bill of exception. Held, that such certificate would be considered on appeal in connection with the exception.\\nAppeal from the Circuit Court for Anne Arundel County. The case is stated in the opinion of the Court. The jury rendered a verdict for the plaintiff assessing his damages at $1,700. The certificate referred to in the opinion of the Court is as follows :\\n\\u201cMemorandum to be inserted in the record following the exceptions: At the request of the plaintiff, through his counsel, it is further certified, that after the evidence embraced in the aforegoing exceptions and after the rejection of the defendant\\u2019s prayer, contained in the 5th exception, the defendant proceeded to examine witnesses on his behalf and the defendant himself testified in his own behalf, and in the course of his testimony testified to the fact that he went before the gi'and jury at the October term, 1892, (spoken of by the witness, Henry M. Murray, foreman of the grand jury), and stated to said jury that he abandoned the said charge against his brother, this fact the plaintiff asks to have inserted for the reason that even assuming that the Court were wrong in excluding the testimony which the defendant proposed to offer by the witness Murray, yet still no injury was done the defendant by such exclusion, inasmuch as by his own testimony he got before the jury substantially the reason why the grand jury dismissed the charge.\\n\\u201c It is also by the same request further certified, that after the evidence on both sides was closed, certain prayers for instructions to the jury were offered by both parties, those af the defendant (conceded by the plaintiff and granted by the Court) distinctly placing upon the plaintiff the burden af proof of showing the want of probable cause for the said prosecution of the plaintiff by the defendant. The Court not being fully satisfied of the propriety of the practice of certifying to anything taking place during the trial subsequently to the taking of the exceptions \\u2014 yet, so as to do no possible harm to the plaintiff, this certificate is signed to avail as it may, and leaving to the Court of Appeals to determine upon the question of the right to so certify \\u2014 the practice not appearing to be clea,rly settled. The defendant objects to the Court signing this certificate; but without waiving any of his objections, request the Court if it signs the certificate at all, to further certify that the defennant testified that as the plaintiff was his brother and had been sufficiently punished for his misconduct, and their father was an old man and very nervous and infirm, and this trouble was a great source of worry to him, he desired that the grand jury would not bring in any indictment against the plaintiff, or words to that effect.\\n\\u201c Witness our hands and seals, this 28th day of January, 1895, counsel agreeing that the foregoing be signed upon an understanding between counsel that it is subject to objection made in this Court by defendant\\u2019s counsel, and with the right to defendant\\u2019s counsel to press said objection in the Court of Appeals. Jas. Revell, I. Thomas Jones.\\u201d\\nThe cause was argued before Robinson, C. J., Bryan, McSherry, Fowler, Page and Boyd, JJ.\\nFrank H. Stockett and James M. Munroe, for the appellant.\\nD. R. Magruder and Robert Moss (with whom was J. R. Magruder, on the brief), for the appellee.\", \"word_count\": \"2575\", \"char_count\": \"14545\", \"text\": \"Boyd, J.,\\ndelivered the opinion of the Court.\\nThis was an action for malicious prosecution brought by the appellee against the appellant. At the conclusion of the plaintiff's testimony, the defendant asked the Court to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover. The rulings of the Court in rejecting that prayer and in excluding some evidence, to be hereinafter referred to, are before this Court for review.\\nIt is contended on the part of the appellee that the prayer is too general and was properly rejected by the Court below on that ground. It certainly did not direct the Court's attention to the particular point or points in which the evidence, in the opinion of the defendant, failed. It is a practice not to be approved of; but, without stopping to discuss the foi'm of the prayer, we think no sufficient reason has been given to justify us in saying that the evidence is so lacking in any material point necessary to sustain the plaintiff's case that it should not have been submitted to the jury.\\nIt is conceded that the plaintiff was prosecuted by the defendant for an alleged criminal offence \\u2014 an assault with intent to kill. He was imprisoned in the county jail for about two weeks, when he was admitted to bail. It was shown by the evidence of the deputy clerk that no presentment had been found against the plaintiff, and by the foreman of the grand jury that the case was dismissed. There can, therefore, be no question that the prosecution had been finally terminated in favor of the appellee. Hyde v. Greuch, 62 Md. 582. A careful examination of the record satisfies us that there was abundant evidence from which the jury could find that the arrest was without probable cause. The testimony of the plaintiff not only tends to show that he did not assault the defendant, but that on the contrary he was assaulted by him. It is true that he admits that he threw a brick at the door of the kitchen connected with the house which he wanted to enter to see his father. But the circumstances, as detailed by him, which for the purposes of this prayer we must accept as true, were such that the jury may have well reached the conclusion that the charge made by the defendant was wholly unjustifiable. He was not acting on what others had told him, but on what he could see for himself. The plaintiff testified that \\\" I told him (defendant) that I had come to see my father, and started to enter the kitchen door, and as I placed my foot on the step he shoved me back and I caught on my hands; as I fell back my hand came in contact with a brick, and I picked it up; my brother by this time had gone in the kitchen and left the door nearly closed, being prevented from closing it by my foot placed on the sill; I threw the brick at the door and then went in the kitchen.\\\" The jury might well have found, if they believed that statement, that the defendant was not justified in having the plaintiff arrested for committing an assault on him, with a brick, with intent to kill, and that the arrest was without probable cause. If they found that the arrest was without probable cause, they could infer malice, and there'was, moreover, other evidence in the case to support that inference. It was clearly a case for the jury to pass upon, and the Court would not have been justified in withholding it from them. That prayer was therefore properly rejected.\\nAfter the foreman of the grand jury had testified that the case against the plaintiff was dismissed, the defendant asked on cross-examination why it was dismissed. The Court refused to permit the question to be answered. The record shows that the witness had been permitted to testify that the case had been dismissed by the grand jury for the purpose of showing that the prosecution was ended. The evidence being admitted for that purpose, it is difficult to see the relevancy of the inquiry why it was dismissed \\u2014 in other words, why it was ended. But different reasons might have influenced the grand jurors, and it was not competent for the foreman to undertake to give them. As was said in Elbin v. Wilson, 33 Md. 144: \\\" All the authorities concur in saying that the juror will not be permitted to state how any member voted, or the opinion expressed by his fellow or himself, or the individual action of any juror in regard to the subject-matter before them.\\\" This is not such a case as Knott v. Sargeant, 125 Mass. 95, relied on by the appellant. There the grand jury simply did not find a bill at the first term of Court \\u2014 they did not dismiss the case. The recognizance which the accused had entered into required her to appear at the October term of 1874 of the Court, and at any subsequent term or terms until the final sentence, decree or order of that Court. It was held that she had not been discharged and the case was consequently not ended. The District Attorney was therefore permitted to testify that the case was continued before the grand jury by reason of the absence of the witness. Cases occur in which it is essential to call grand jurors as witnesses, but the rule should not be extended beyond what is necessary for the purposes of justice, and it would be exceedingly dangerous, in most cases, to permit them to explain or assign reasons for their actions.\\nMuch of what we have already said about the question involved in the first bill of exceptions applies to the second, third and fourth. In all of them the effort was made to have the foreman explain the action of the grand jury. The object seemed to be to show that the prosecution was abandoned at the instance of the appellant. We do not think that relevant. We must assume that the grand jury would not have dismissed the case, even at the instance of the appellant, unless they thought it proper to do so. There was no proffer to show that the appellant took such action at the request or with the knowledge of the appellee. Nor do we think that any effort on the part of the appellant to have the case dismissed could be offered in evidence, either in bar of the suit or in mitigation of damages. The appellee had already suffered the injury he complained of, as he had been arrested in the month of May before the October term of Court, when the case was dismissed, and hal remained in jail for two weeks. It may be that the appellant believed he had done his brother a wrong, or he may have been anxious to relieve himself from farther liability, or he may have acted from a desire to save his father from annoyance and his brother from further trouble, but whatever his motive was his action then would not compensate the appellee for the injury already done him. Of course the dismissal of the case did not preclude the appellant from showing that the appellee was in fact guilty, and the learned Judges below have certified that they granted prayers instructing the jury that the burden of proof of showing a want of probable cause was on the plaintiff. That was, evidently, because the testimony of the foreman of the grand jury had only been admitted to prove that the prosecution was ended and not for the purpose of showing a want of probable cause. But the certificate of the Judges also shows that after the exceptions were taken by the defendant he testified that he went before the grand jury and requested them not to indict his brother. So we find that he did get the benefit of the testimony he is complaining of having been excluded. It is contended on the part of the appellant, that this Court cannot consider the certificate of the Judges. No authority has been offered to sustain that position, and we can see no reason why it cannot be done under such circumstances as those in this case. All of the exceptions were taken before the plaintiff closed his case. It has been frequently decided by this Court that even if an error be committed by rejecting testimony, and it is subsequently admitted during the trial of the case, the judgment should not be reversed on account of the original error. A bill of exceptions ordinarily only contain what has transpired, and is relevant to the time the exception was noted, and it may be signed at once. If subsequent to that time the error is corrected, cannot the trial Judge certify that fact to the appellate Court? For example, suppose the defendant had called the foreman of the grand jury as his witness, and had asked the identical question stated in these bills of exceptions, and the witness had answered them without objeci\\u00f3n or with the permission of the Court, could it be said that if the Judges below had already signed the exceptions they could not inform this Court of what subsequently transpired ? There ought to be no doubt about their right to do so, for if this Court deemed the ruling of the Court below, as set out in the exceptions, reversible error, it might reverse the judgment for the exclusion of testimony which in point of fact was before the jury. The certificate was filed the same day the bills of exceptions were and expressly refers to them. If the exceptions were not signed before the testimony was taken by the defendant, the Judges might have inserted in them the facts stated in the certificate ; but as they did not, there can be no valid objection to their signing a certificate of this character to be taken in connection with the exceptions.\\n(Decided June 19th, 1895.)\\nAs we find no error in the rulings of the Court below, the judgment must be affirmed.\\nJudgment affirmed with costs to the appellee.\"}"
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+"{\"id\": \"1802016\", \"name\": \"Andrew J. Tabler vs. John H. Tabler, George F. Tabler, and others\", \"name_abbreviation\": \"Tabler v. Tabler\", \"decision_date\": \"1884-12-19\", \"docket_number\": \"\", \"first_page\": \"601\", \"last_page\": \"615\", \"citations\": \"62 Md. 601\", \"volume\": \"62\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:14:49.181859+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Andrew J. Tabler vs. John H. Tabler, George F. Tabler, and others.\", \"head_matter\": \"Andrew J. Tabler vs. John H. Tabler, George F. Tabler, and others.\\nIncomplete Will of Personalty \\u2014 Caveat\\u2014Second set of Issues.\\nA man in a dying condition undertook to dictate his will to an amanuensis, and while this dictation was in progress, his mind gave way before he had time to complete what he evidently deemed an important part of it. Held :\\nThat while the authorities had gone very far in admitting unfinished or incomplete papers as good wills of personal property, no Maryland decision had gone to the extent of holding that in such a case, the part of the instrument which he dictated while in possession of his mental faculties, could be set up as his will.\\nOn a caveat to a paper writing purporting to be a will of personalty, issues were granted by the Orphans\\u2019 Court, raising the question of the testamentary capacity of the deceased as affecting the entire paper. These issues were tried before a jury who found adversely to the will. Before the Orphans\\u2019 Court had acted on this verdict, by refusing probate of the instrument, one of the original caveatees. applied for a second set of issues to try the question, whether the instrument was not good down to the last clause, but void as to that clause by reason of the mind of the deceased having suddenly given way before said clause was written, or the instrument was signed. On appeal from the refusal of the Orphans\\u2019 Court to grant said issues, it was Held :\\n1st. That assuming this new set of issues could have been granted if they had been applied for at the proper time, it was too late to ask for them after a trial and verdict on the first set.\\n2nd. That the appellant had knowledge, or means of knowledge in his possession, of all the facts and circumstances upon which his application was founded, at the time the first issues were granted, and should then have obtained the issues subsequently asked for, if they could have been granted at all.\\nIt is only in cases where the issues are totally different throughout,, that successive sets of them can be allowed, and successive trials had.\\nIf the question of capacity is once raised on a caveat to a paper purporting to be a will, the issues must be so framed in the first instance as to present it, so far as the law will permit, in every aspect, and with reference to every part of the paper which the circumstances demand or the parties desire.\\nAppeal from the Orphans\\u2019 Court of Montgomery County.\\nThe case is stated in the opinion of the Court.\\nThe cause was argued before Alvey, C. J., Stone, Miller, Robinson, Irving, and Ritchie, J.\\nThomas Anderson, and Wm. P. Maulsby, Jr., for the-appellant.\\nIf the testator were of sound and disposing mind, memory and understanding at the time he dictated said will, down to clause five thereof, and the will, dictated as aforesaid down to said clause, disposed of his entire es tate, and was intended by him to operate as his will,, then it was a valid will of personal property, and the testamentary intention could not be defeated by the scrivener writing other clauses to the will after the testator had so lost consciousness, and without his dictation or direction. Weems vs. Weems, et al., 19 Md., 343 and 347; Boofter vs. Rogers, 9 Gill, 44; Dorsey\\u2019s Testamentary Law, 61; In re Welsh, 1 Redfield\\u2019s Surrogate Reports, (New York,) 238; Redfield\\u2019s American Cases on the Law of Wills, 513, 514; Munnikhuysen vs. Magraw, 35 Md., 280.\\nIf the issues sent to the Circuit Court for trial required the jury to pass upon the paper as an entirety, and did not permit them to exclude by their verdict the portion thereof written by the scrivener after the testator had lost consciousness, and pass upon the residue thereof, then under the circumstances of this case the appellant is entitled to have new issues framed and sent to said Court, so that the jury may pass upon the validity of said paper as a will, down to clause five. Pegg, et al. vs. Warford, 4 Md., 390, 393; Diffenderffer and Hungerford vs. Griffith and Griffith, Executors, 57 Md., 81 and 87.\\n\\u2018 The only way the appellant could have the will down to clause five, appointing an executor, passed upon by the jury, was to apply to the Orphans\\u2019 Court for new issues, since the Circuit Court had no power to modify the issues sent to it by the Orphans\\u2019 Court for trial, or to direct a qualified finding upon them by the jury, and if the jury had found for the appellant on those issues, they would have found for the paper as an entirety, and part of the judgment of the Orphans\\u2019 Court on such finding would have been the grant of letters testamentary to the appellant ; consequently the appellant could not have reversed, by appeal to this Court, the rulings of the Circuit Court rejecting his instructions, asking that a portion of said paper-writing be submitted to the jury. Cook vs. Carr and Wife, 20 Md., 403, 410; Griffith vs. Diffenderffer, et al., 50 Md., 466, 489.\\nJames McSherry, and James B. Henderson, for the appellees.\", \"word_count\": \"4892\", \"char_count\": \"27548\", \"text\": \"Miller, J.,\\ndelivered the opinion of the Court.\\nThis appeal is from an order of the Orphans' Court refusing to grant a second set of issues involving the validity of a will, and it presents a singular and novel question.\\nA paper-writing, purporting to he the last will of Michael Leather, was propounded for prohate. The name of the alleged testator was signed by Warner Welsh, the scrivener who prepared the instrument. It is also duly attested by three witnesses, but as all the estate of the deceased consisted of personal property, this attestation was, as the law then stood, unnecessary. It contains five clauses. In each of the three first there is a legacy of $2000 to a named legatee. The fourth is the residuary clause disposing of all the rest and residue of his estate, and the fifth appoints Andrew J. Tabler his executor, and revokes all former wills.\\nA caveat was filed and, after the usual proceedings, five issues were sent to a Court of law for trial. Of these the first is, was this instrument sufficiently executed to pass personal property ? the second were its \\\" contents \\\" read to or by the alleged testator, or known by him \\\"at or before the time of the alleged execution thereof?\\\" the third, was it his last will and testament ? the fourth, was he \\\"at the time of the alleged execution\\\" thereof of \\u2022sound and disposing mind, capable of executing a valid deed or contract? and the fifth, was its execution procured by undue influence or fraud? At the trial the verdict was for the caveator on all the issues except the last. In other words the jury found, upon all the testimony before them, and under instructions as to the law (which the re cord shows the Court gave) that this instrument was not sufficiently executed to pass personal property, that its contents were not read to or hy the deceased, or known hy him at or before the time of its alleged execution, that it was not his last will and testament, and that at the time of its alleged execution he did not have testamentary capacity. No exceptions to the rulings of the Court appear to have been taken, nor was any appeal prosecuted; hut a motion for a new trial, upon the ground that the verdict was against the evidence and the instructions of the Court, was overruled, and the Court ordered the verdict to he certified to the Orphans' Court.\\nBefore the Orphans' Court had acted on this verdict, hy refusing probate of the instrument, one of the original cave'atees, (the party named as executor therein) filed a petition in that Court asking for five new issues substantially as follows: 1st. Was this paper-writing down to its fifth clause (which appoints the executor and revokes former wills) sufficiently executed to pass personal property ? 2nd. Were its contents down to said clause, read to or hy the deceased, or known hy him at the time of the writing thereof? 3rd. Is it down to said clause the last will and testament of the deceased ? 4th. Was the deceased at the time of the writing of said paper down to its fifth clause, of sound and disposing mind, memory, and understanding, and capable of executing a valid deed or contract? 5th. Was he, at the time of the writing of said paper down to its said fifth clause \\\" prevented hy sudden and extreme illness from proceeding further with said paper-writing, said extreme illness thus incapacitating him, continuing to the time of his death ?\\\"\\nThe grounds stated in the petition upon which these new issues are asked, are, that the first issues presented the instrument as an entirety, and required each fact tobe found or negatived as of the whole paper; that Welsh, the scrivener, in his testimony at the trial of the first issues, testified that lie wrote or read over to the deceased \\u2022each and every clause in this instrument down to the fifth, and that this fifth clause was not read to him, nor was the same directed to be so written hy him, nor was it made known to him at or before the execution of the paper ; and that further evidence was also offered tending to show that the deceased was seized with extreme illness immediately before this fifth clause was written, and that at no time thereafter until his death, did he regain sufficient strength and capacity to enable him to finish his said will beyond that clause, and that he did not dictate the writing of that clause, hut the whole of it was copied hy \\\"Welsh from Latrobe's Justice without any suggestion from the \\u2022deceased. The petition then avers that this is a good will to pass personal property, even though this last clause was not read to, or made known to the deceased, if he was prevented by the act of God, or sudden illness from completing the instrument in the way he had designed. To this petition the original caveator, together with other next of kin of the deceased, filed an answer in which they admit that Welsh testified as stated, and also that there was testimony of like effect, as to the time the incapacitating illness supervened, but they aver there was other testimony submitted to the jury tending to prove that the \\u2022deceased was taken ill the day before this paper was written, and that early in the morning of the day it was prepared, and from that time on, was incapable of making a valid deed or contract, and was in that condition of incapacity before Welsh was sent for, and before the alleged dictation commenced, and so continued until his death. The respondents then resist the granting of these new issues upon the ground that the same facts, in substance and in truth, were involved in the former issues and were conclusively adjudicated under those issues, and the interpretation placed upon them hy the Court in the instructions which it gave, and which appear in the record.\\nUpon this petition and answer the Orphans' Court passed an order refusing to grant the new issues and dismissing the petition. From this order the petitioner has appealed.\\nWe do not know what the entire testimony before the jury on the trial of the first issues really was. We can gather some of it from the averments of this petition and answer, and from the instructions granted can infer there was more. One of these instructions, granted at the request of the caveatees, is to the efifect that if the jury find, from all the evidence, that Welsh wrote the introductory clause of the alleged will and read it to the said Leather, and that he then dictated all the clauses disposing of his estate, including the residuary clause, and that Welsh wrote the same as so dictated, and that Leather was then asked who he wanted as executor, and replied \\\" Jack, Jack,- Jack,\\\" and that this was the usual mode by which he designated Andrew J. Tabler, then the instrument was sufficiently made known to him to be a good will to pass personal property, and the verdict must be for the caveatees under the second and third issues, even though the jury should further find that that part of the fifth and last clause which revokes former wills, was not dictated by or read or made known to the said Leather,.prowled they shall further find that he was, at the time of said dictation, of sound \\\"mind, memory, and understanding, and capable of making a valid deed or contract. Row, upon the presumption that the Court would not have granted this instruction unless there was evidence tending to support every hypothesis of fact it contained, the inference is a legitimate one that the deceased not only intended to appoint an executor, in order to complete his will, but named the party he wished to act in that capacity.\\nFrom this meagre disclosure of the testimony it is impossible to say, with certainty, upon what ground the verdict was based. It is highly probable the jury found that incapacity existed before the preparation of the paper was begun, and we are strongly inclined to the opinion that, under the instructions given them, such must be the legal intendment of their verdict. It is possible, however they may have found that the deceased was incapable up to the time of the preparation of the last clause, hut became incapable before the executor was named, and may have thought that upon the issues before them, and the instructions of the Court, they were hound to find against the will unless they believed he was competent when the appointment of the executor was written, and it may he inferred from the rejected instructions that the Court was of that opinion. But assuming the jury did so find, their verdict must he conclusive, at least, that incapacity supervened before the executor was appointed, and, that being so, it is by no means certain that the disposing clauses, even if dictated and written while capacity lasted, could be admitted to probate, especially if there was any evidence that it was his purpose to appoint an executor. Such appointment, though not essential to its validity, is still an important part of a will, and few are made without it. The compensation which our law allows an executor is liberal, and this, where the estate is large or considerable, (as was the case here) is us,ually taken into consideration by a testator and forms part of his testamentary scheme ; and from the granted instruction already referred to, we iiifer there was evidence offered by the appellant himself tending to show that the alleged testator in this case intended to appoint an executor in order to complete his will. No doubt-.the authorities have gone very far in admitting unfinished or incomplete papers as good wills of personal property ; hut here we have a case where a man in a dying condition undertakes to dictate his will to an amanuensis, and while this dictation is in progress his mind gives way before he has time to complete what he evidently deemed an important part of it. We have found no Maryland decision \\u2022which has gone to the extent of holding that in such a state of case, the part of the instrument which he dictated while in possession of his mental faculties can be set up as his will. The case differs materially from those of Weems vs. Weems, et al., 19 Md., 334, and Barnes vs. Crouch, reported in Dorsey's Testamentary Law, 60. In the former, the original record shows that the paper propounded for probate was a complete will disposing -of all the testator's property, and appointing an executor. The Court found from the proof that the testator was capable of making a valid will during all the time he was giving the verbal instructions for the preparation of this paper, and only became incapable later in the day when it was presented to himfor formal execution; and they pronounced it a good will of personalty. In the other case, the terms iCmy executor hereinafter named,\\\" appear in the formal commencement of the will, but it is manifest they were simply copied by the scrivener from the form he was using. There is no proof whatever from any of the witnesses that the testator gave any instructions as to the appointment of an executor, or ever expressed a wish to have one, and the paper contains no such appointnent. Here also the proof was clear that the testatator was of sound mind during the time he gave the instructions, and that he gave all he intended to give; but some time afterwards, when the paper was brought to him to be signed, he was speechless and dying. The order of the Orphans' Court admitting the paper to probate appears to have been affirmed by the Court of Appeals in June, 1834, but no opinion was filed stating the reasons for the affirmance. It is plain, however, that it was not a case where the mind failed and incapacity came on while the dictation or giving of instructions was in progress and before it was completed.\\nStill more does the present case differ from that of Boofter vs. Rogers, 9 Gill, 44. In that case instructions or memoranda for an entire will, including the appoint ment of an executor, were prepared by the testator himself at a time when there was no question as to his capacity,, and these he left with a scrivener with directions to prepare a formal will in accordance therewith. The testator died some months afterwards, hut before the formal will was prepared and executed, and the Court held that such a paper could he admitted to probate, if the more formal will was left unfinished by any act which the law pronounces to be the act of God, provided it is shown that the intention of the deceased that it should he his will continued down to the time when the act of God intervened. There are also several other cases in which the same doctrine has been announced, and this, as it seems-to us, is the extent to which the Maryland decisions have gone. Among the earlier decisions of the English Ecclesiastical Courts, cases can he found which sustain the position that so much of this paper as was dictated while the deceased was of sound mind could he admitted to probate. Billinghurst vs. Vickers, 1 Phillimore, (Ecclesiastical,) R., 67; Wood vs. Wood, Ibid., 357; Nathan vs. Morse, 3 Phill., 529. But in the later case of Montefiore vs. Montefiore, 2 Addams, 354, it was charged that the paper set up as a will of personalty was dictated by the testator, when he was of sound mind, though suffering from great weakness, and that he became incapable of fully executing it. According to this paper, the testator after giving a farm to each of his two sons, gave \\\" all his other property to his wife.\\\" The Court, however, under all the circumstances of the case, refused to admit it to probate, and, Sir John Nicholl, in the course of his opinion, refused his assent to the proposition contended for by one of the counsel, that if a testator dies while the instrument is in progress, that instrument as far as it goes, he its contents and effect what they may, must he valid. In 1 Jarman on Wills, (2nd Amer. Ed.) 137, the learned author states the general proposition to the effect, that the doctrine in favor of imperfect papers obtains only where the defect is in regard to some formal or authenticating act, and not where it applies to the contents of the instrument; for, if in its actual state, the paper contains only a partial disclosure of the testamentary scheme of the deceased, it necessarily fails of effect, even though its completion was prevented by circumstances beyond his control; and'he then refers to this case of Montefiore vs. Montefiore, as sustaining the position, that where a person while dictating his will to an amanuensis is stopped by sudden death, or the rapid declension of his mental or physical powers, such paper cannot be admitted to probate as containing his entire will, without the most unequivocal testimony that the .deceased considered it as finished; and the fact that the paper professes to dispose of the deceased's whole estate is not conclusive as to its completeness, because testators not unfrequently begin with such a universal disposition, and then proceed to bequeath specific portions of their property by way of exception thereout.\\nIt would thus seem at least doubtful whether, assuming the proof to be exactly as the record shows jfie insists it is, the appellant could ever have succeeded in having any part of this paper admitted to probate. But it is not necessary to express a definite opinion either upon this question or upon the question whether the verdict on the first issues must be taken as a conclusive finding by the jury that there was an entire want of capacity during all the time the paper was in course of preparation, nor to rest the decision of the case upon either of these points. There is another ground upon which we think the order appealed from, must be affirmed, and that is, assuming this new set of issues could have been granted if they had been applied for at the proper time, it is too late to ask for them now after a trial and verdict on the first set. The caveat attacked the testamentary capacity of the deceased, and asked for issues submitting that question to a jury. The appellant was not only a party to that proceeding hut was named as executor in the alleged will. When he consented to the first set of issues he knew they raised the question of capacity, and he also knew that at the trial he would he called on to defend the paper from assault on that ground. If he desired to raise the question whether capacity lasted down to the dictation and writing of the fifth clause, and then ceased, then was the time to raise it. The issues now asked could then have been granted, in connection with the other issues, if they could be granted at all, and no excuse is given in his present petition for not asking them then. He does not aver that he was taken by surprise by the testimony which Welsh gave at the trial, or that he did not know at the time the caveat was filed, or could not, by the use of ordinary diligence, have learned what the facts in relation to the condition of the deceased and his dictation of this paper were, and what the testimony of the party who acted as scrivener in .its preparation would be; and in fact we do not see how he could have truthfully made any such averment. He was the custodian of the paper, and in his affidavit before the register when he brought it to the Orphans' Court, he states that he received it from the deceased the very day it purports to have been executed. When it was thus produced in Court and opened to his inspection, if not before, he knew who the attesting witnesses and scrivener were, and the slightest inquiry of them, would have given him information of all the facts and circumstances upon which his present application is founded. With this knowledge or means of knowledge in his possession, he consented to let the original issues go without even the suggestion of any such addition or modification as he now seeks through the instrumentality of a new set of issues. From this it would seem that his purpose was to take the chance under the first issues of sustaining before the first jury the whole will, in which, if he was successful, he would secure the office of executor; and if he did not succeed in that, then to fall hack upon the four clauses which contain the legacies, and of which he and his son receive the larger share, and submit the validity of these to a second jury under a new or modified set of issues. In our opinion there is no law, precedent, or authority which sanctions such a proceeding.\\nIn the case of Pegg vs. Warford, 4 Md., 385, our predecessors have very clearly construed the several sections of our testamentary law which relate to the awarding and trial of issues, and with equal clearness have declared the effects of verdicts thereunder, and how far such verdicts are binding or conclusive upon the Orphans' Courts. In the opinion in that case, which is often quoted, it is laid down that it does not necessarily follow, that the finding of the jury negatively or affirmatively upon the questions submitted by the issues, determines the validity of the paper as a will, because there may he other facts outside of the verdict, and not inconsistent with it which decide the question; and hence it follows, that even after the finding of a jury on issues, other issues in regard to facts not covered by those pronounced upon may be sent, if the final judgment on the paper has not been rendered, so that the Orphans' Court have not only the right, hut are sometimes hound to render their final judgment on the findings of different juries upon different issues. And what is thus meant by \\\" different issues,\\\" they take pains to illustrate in this wise: \\u2014 \\\" thus if an issue he sent to a Court of law which involves only the question of the execution, attestation and publication of the paper, and it he found in favor of the paper, it is still competent to the same party, or any other in interest, to require another issue or issues as to the mental and disposing capacity of the testator, or the exercise of undue importunity or control over him, the practice of fraud upon him, or any other fact not inconsistent with the execution, attestation and publication of the paper.\\\"\\nIt is plain that in the instance thus put, there can be no possible clashing between the several findings, for neither the same facts nor any part of the same facts are submitted by the different issues to the different juries. It is only in rare cases like this where the issues are totally different throughout, that successive sets of them can be allowed, and successive trials had. We find nothing in any of the language used in this carefully prepared opinion of our predecessors, which countenances the idea that they intended to say that a set of issues raising the question of capacity as to a whole paper could be tried, and then be followed by another set, raising the same question as to a part of the same paper, to be tried before another jury; and we are clearly of opinion that if the question of capacity is once raised in a case like the present, the issues must be so framed in the first instance as to present it, so far as the law will permit, in every aspect and with reference to every part of the paper which the circumstances demand or the parties desire. There ought not to be successive sets of issues involving that question and successive trials of it. The practical effect of allowing these new issues to be sent would be little short of granting the appellant a new trial; for the first jury may have found, and, (as we have said,) probably did find upon the evidence before them that incapacity existed before the preparation of the paper was commenced, whereas another jury upon the same evidence may be convinced that it intervened only after the first four clauses had been written, so that he may, upon the same evidence, get a verdict from the second jury, which he could not have obtained from the first. Eor these reasons we shall affirm the order of the Orphans' Court.\\nIt is satisfactory to know that no question like the present, nor any similar one, can arise under any will executed since the 1st of August, 1884. Nearly seventy years ago Judge Martin in delivering his opinion in the important case of Tilghman vs. Stewart, (4 H. & J., 165,) said it was much to he regretted that the requisites to constitute a will of personal property were not the same \\u2022as those required for a will of real estate. The Legislature has, at last, heeded this suggestion, and by the Act of 1884, ch. 293, has placed wills of real and personal estate on the same footing by requiring them to he written, signed and attested in the same manner.\\n(Decided 19th December, 1884.)\\nOrder affirmed, and cause remanded.\"}"
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+"{\"id\": \"1813846\", \"name\": \"Murray Kane vs. The State of Maryland\", \"name_abbreviation\": \"Kane v. State\", \"decision_date\": \"1889-05-03\", \"docket_number\": \"\", \"first_page\": \"546\", \"last_page\": \"554\", \"citations\": \"70 Md. 546\", \"volume\": \"70\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:00:04.267731+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Murray Kane vs. The State of Maryland.\", \"head_matter\": \"Murray Kane vs. The State of Maryland.\\nOyster laws \\u2014 State Fishery force \\u2014 Power to Arrest without Warrant \\u2014 Proceedings before a Justice of the Peace\\u2014 Jurisdiction \\u2014 Act of 1878, ch. 359 \\u2014 Act of 1886, ch. 296, sec. 41, {Art. 72, sec. 37, of the Code of 1888,) \\u2014 Act of 1884, ch. 510 \\u2014 Appeal.\\nThe owner of a sloop was licensed to dredge for oysters within certain limits in Maryland. The person in charge of the vessel was arrested without a warrant by officers of the State fishery force, upon the charge that he did not have the number of the license displayed on the vessel as required by section 7 of the Act of 1878, chapter 359. The accused being carried before a justice of the peace, waived a jury trial, and elected to be tried by the justice, and was found guilty, and sentenced to pay a fine and costs. The return of the justice to a writ of certiorari issued by the Circuit Court of the county contained a copy from his docket which failed to show by whom or under what authority the accused was arrested, or under what statute the justice proceeded. The writ of certiorari was quashed by the Circuit Court, and upon a writ of error it was Held:\\n1st. That the defective record made by the justice in these particulars was aided and made certain by the statements and admissions of record contained in the petition of the plaintiff in error for the writ of certiorari.\\n2nd. That the question was not whether the proceeding before the justice was in all respects regular, and free from error, but whether he acquired jurisdiction of the person of the plaintiff in error, and of the subject-matter of the accusation, and acted within the limits of such jurisdiction.\\n3rd. That under section 41 of the Act of 1886, chapter 296, now section 37 of Article 72, of the Code, the State fishery force have the power to arrest on view without warrant.\\n4th. That nothing appearing to the contrary, it must he presumed the arrest -was lawfully made.\\n5th. That it w'as not necessary that the justice should set forth, as the basis of his judgment, all the circumstances of the arrest of the party accused, or whether the arrest was made with or without warrant.\\n6th. That as it was apparent from the entries of the justice in his docket, that the party was before him on a charge of violating the law, and elected that the justice should exercise his jurisdiction, rather than be held for trial in the Circuit Court by jury on indictment, this was sufficient to show that jurisdiction was obtained by the justice.\\n7th. That the statute does not require in cases like the present, that a written charge be filed with the magistrate, as the foundation of his proceeding; and however desirable it may he, as a matter of good practice by magistrates, that such written charge should be filed in all cases of arrests without warrant, its omission can in.no way affect the question of the jurisdiction of the magistrate.\\nUnder the Act of 1884, ch. 510, giving magistrates concurrent jurisdiction with the Circuit Courts in certain enumerated cases, if the party accused waives his right to a trial by jury, afforded by the Act, and elects to be tried by the magistrate, he has no right to ask a review' of the judgment against him, (except where there is a want or failure of jurisdiction) except in cases where the right of appeal is given by statute.\\nAppeal as upon Writ of Error, from the Circuit Court for Talbot County.\\nThe case is stated in the opinion of the Court.\\nThe cause was argued before Alvei', O. J., Miller, Eobistson, Bbtax, and McSiierry, J.\\nSewell T. Melbourne, for the plaintiff in error.\\nWin. Pinkney Whyte, Attorney-General, for the defendant in error.\", \"word_count\": \"2724\", \"char_count\": \"15416\", \"text\": \"Alvey, C. J.,\\ndelivered the opinion of the Court.\\nThis case is here upon error assigned in the judgment of the Court below in quashing the writ of certiorari issued to a justice of the peace of Talbot County, requiring him to produce the record of conviction of the plaintiff in error, for the alleged violation of the. Act of 1878, ch. 359, one of the local oyster laws of the State.\\nIt appears, from the petition of the plaintiff in error filed for the writ of certiorari, under oath, that the owner of a certain sloop, called the \\\" George Washington Eaunce,\\\" was licensed to take oysters with dredge, scoop, or scrape, in certain waters within Dorchester County, and in the waters of the Choptank river, between and within Dorchester and Talbot Counties, for the season of 1888-1889: That the plaintiff in error, being in charge of said boat, was, on the 15th of January, 1889, arrested, and the boat was seized, by officers of the State Fishery Force, upon the charge that the plaintiff in error did not have the number of the license displayed on the boat, as required by section 7 of the Act of 1878, ch. 359: That on the 16th of January, 1889, the plaintiff in error was carried before Edward J. ;Stevens, a justice of the peace of Talbot County, to be dealt with according to law \\u2014 it being conceded that the arrest was made without the legal process of warrant for that purpose. It is further alleged in the petition., that on the 21st of January, 1889, the case was tried by the justice, upon the charge aforesaid, and that judgment was rendered, finding the plaintiff in error guilty, and thereupon a fine of $25 was imposed, with costs; and that the plaintiff in error was committed to jail until the fine and costs were paid. The petition alleges that many errors and irregularities were committed by the justice in his proceeding, and princij>ally, that the justice failed to acquire juris diction in the matter, hy reason of the fact, that the arrest had been made without warrant, and that no charge in writing was presented to the justice, setting forth and describing the offence, whereon to found his proceeding. The justice, in his return to the writ, sent up to the Circuit Court the following copy from his docket, as containing the entire record of the proceedings that took place before him, to wit:\\n\\\" State of Maryland s January 16, 1889. Charge vs. I of having no numbers dis-Murray Kane, f played: Waived a jury Sl'p G. W. Faiince. J trial: Ouilty, fine $25 and costs, and stands committed until fine and costs are paid: Parties committed to jail. Eo other papers in this case. Witness my hand and seal.\\nE. J. Stevens, J. P. [Seal.]\\nTrue copy \\u2014 Test: E. J. Stevens, J. P. [Seal.]\\nUpon this return the Circuit Court quashed the writ of certiorari, holding that the justice had jurisdiction of both the person of the plaintiff in error and of the subject-matter of the accusation; and that ruling is assigned as error in the judgment of the Court below.\\nThe record of the proceeding before the justice is certainly of a very meagre and inexplicit character. It neither shows by whom, or under what authority, the plaintiff in error was arrested and brought before the justice for trial; nor does it show under what statute the justice proceeded. But the defective record made by the justice in these particulars is aided and made certain by the statements and admissions of record contained in the petition of the plaintiff in error for the writ of certiorari. In that petition it is stated that the arrest of the plaintiff in error was made hy the officers of the State Fishery Force, and that such arrest was made for the alleged violation of the provision of the 7th section of the Act of 1878, ch. 359, requiring the number of the license to be painted on the boat, &c.; and that it was upon that charge that the plaintiff in error was tried and convicted by the justice. The question here is, not whether the proceeding before the justice was in all respects regular and free from error, but whether he acquired jurisdiction of the person of the plaintiff in error and of the subject-matter of the accusation, and acted within the limits of such jurisdiction; for if he rightfully acquired such jurisdiction, and acted within the limits thereof, the Court below was clearly right in quashing the writ of certiorari.\\nThe State Fishery Force is a marine police, constituted by statute, for the purpose of enforcing the legal regulations prescribed,for and required to be observed in the taking of both shell and floating fish, within the tidal waters of this State, and particularly the oysters of those waters. The present Fishery Force was organized under the provisions of the Act of 1886, ch. 296, repealing and re-enacting former statutes upon the subject, with amendments, to \\\"provide further police regulations for the protection of the oysters in the waters of this State ;\\\" and which latter statute is incorporated in the Code of 1888, as Article 72, tit. \\\"Oysters.\\\" It is made the duty of this police force to execute all warrants directed to it, founded upon information, for the apprehension of parties offending against the regulations prescribed by the statutes upon the subject; and it is required to patrol the tidal waters of the State, for the purpose of detecting and arresting all violators of the law; and when offenders are detected in the act of violating the law, it is made -the duty of this police force to arrest at once the party or parties offending, without the delay of procuring a warrant for the pur pose. By section 41 of the Act of 1886, ch. 296, now-section 81 of Article 12 of the Code, it is declared that the said State Fishery Force shall have charge and control of the enforcement of all laivs of this State, relating to fish, whether general or local; and that they shall arrest and bring to trial all persons found violating any Acts of Assembly, and cause them to be tried and punished, as provided by law. Indeed, without the power to arrest on view without warrant, it would, in the nature of things, be quite impossible to execute the law with any degree of efficiency. And it being settled that such is the power of police officers on land, we can perceive no sufficient reason for holding that the same rule should not apply in the execution of the duties of the police force on water. Mitchell, et al. vs. Lemon, 34 Md., 116.\\nIt is true it is not shown by any direct averment or admission that the party arrested was at the time in the act of violating the law; but it is admitted, by averment under oath, that he was at the time in charge of a licensed boat, and the alleged offence was'that the boat was without the number of the license disjfiayed, as required by law. Nothing appearing to the contrary, it must be presumed that the arrest was lawfully made. As a general rule, an officer is always presumed to have acted in conformity to his'duty and the requirement of law, until that presumption is overcome by proof; the maxim being omnia prcesumuntur rite esse acta. Rex vs. Hawkins, 10 East, 211, 216; Hartwell vs. Root, 19 John., 345; Bank of the U. S. vs. Dandridge, 12 Wheat., 64; Houston vs. Perry and Williams, 3 Texas, 390. The law will not presume the arrest to have been tortiously made, but to have been made according to law; seeing that the officers had competent authority to make arrest without having legal process for the purpose. Burke vs. Negro Joe, 6 G. & J., 143. But this maxim, omnia prcesumuntur rite esse acta, does not apply to inferior Courts, and proceedings hy magistrates, or others, acting judicially under special statutory powers, so as to give jurisdiction. In all such cases, every fact required hy the statute to give jurisdiction must appear on the face of the proceedings, either hy averment, or hy reasonable intendment. Boarman vs. Israel and Patterson, Ex'rs, 1 Gill, 372, 381; Swann, et al. vs. Mayor, &c., of Cumberland, 8 Gill, 150. But if it appear that jurisdiction was obtained, both of the person and subject-matter, and that such jurisdiction has not been exceeded, the validity of the judgment rendered will not be a\\u00edfected hy the fact that there may have been irregularities and want of form in the proceeding upon which the judgment is founded. Williamson vs. Carnan, 1 G. & J., 196; Taylor vs. Clemson, 2 Q. B., 978, and same case affirmed, 11 Cl. & Fin., 610, 640-1; Broom Leg. Max., (2d ed.) 444, 445, and cases there cited. Such irregularities or want of form, in the proceedings can only be corrected on appeal, in cases where that mode of review is allowed. The writ of certiorari is issued upon the allegation of the want of jurisdiction in the magistrate, or that he has transcended his powers in taking the proceedings complained of; and the Court, upon the return of the writ, does not investigate the merits of the case, but only determines whether the magistrate has acted within the limits of the power or jurisdiction conferred upon him; and if it be determined that he has so acted, and in no way exceeded his jurisdiction, the writ of certiorari will be quashed, as was done in this case. Williamson vs. Carnan, supra; Gaither vs. Watkins, et al., 66 Md., 576.\\nHere the jurisdiction of the magistrate sufficiently appears, though not as formally as could be desired. It is not necessary that the magistrate should set forth, as the basis of his judgment, all the circumstances of the arrest of the party accused, or whether the arrest was made with or without warrant. The party was before the magistrate on a charge of violating the law, and he elected that the magistrate should exercise his jurisdiction rather than he held for trial in the Circuit Court hy jury on indictment. All this is made apparent hy the entries of the magistrate in his docket; and this, we think, is sufficient to show that jurisdiction was obtained hy the magistrate. Taylor vs. Clemson, 11 Cl. & Fin., 640-642. It is objected that no written charge was filed with the magistrate, as the foundation of his proceeding. But no such requirement is made by the statute in cases like the present; and however desirable or proper it may be, as matter of good practice hy magistrates, that such written charge should be filed in all cases of arrests without warrant, its omission can in no way affect the question of the jurisdiction of the magistrate. Reg. vs. Millard, 1 Dears. Cr. Gas., 167. The charge is entered briefly by the magistrate in his docket, and it is upon this-that he proceeds to trial and judgment.\\nThe plaintiff in error, as already stated, was charged with the violation of the provision of the 7th section of the Act of 1878, ch. 359, in failing to exhibit on the boat in his charge as master the number of the license held; but the proceedings before the magistrate were conducted in accordance with the provisions of the Act of 1884, ch. 510, applicable to Talbot and certain other counties. By this last mentioned Act, if the party accused elects to have his case tried by a jury, the jurisdiction of the magistrate thereupon ceases, and the party accused is simply required to enter into recognizance for his appearance in the Circuit Court, or to stand committed until indictment found. In this case, the party accused waived his right to trial hy jury, and elected to be tried hy the magistrate; and after such election and trial, (except where there is a want or failure of jurisdiction,) the party can have no right to asir a review of the judgment against him, except in cases where the right of appeal is given hy statute.\\n(Decided 3rd May, 1889.)\\nBeing of opinion that the Court below committed no error in quashing the writ of certiorari, we shall affirm its judgment.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1815765\", \"name\": \"Caroline Hadaway, by her son and next friend, John E. Hadaway vs. Lavinia Smith\", \"name_abbreviation\": \"Hadaway v. Smith\", \"decision_date\": \"1889-11-14\", \"docket_number\": \"\", \"first_page\": \"319\", \"last_page\": \"322\", \"citations\": \"71 Md. 319\", \"volume\": \"71\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:26:21.323699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Caroline Hadaway, by her son and next friend, John E. Hadaway vs. Lavinia Smith.\", \"head_matter\": \"Caroline Hadaway, by her son and next friend, John E. Hadaway vs. Lavinia Smith.\\nConveyance by Married woman \\u2014 Insanity of Husband \\u2014 Art. 45, see. 2, of Code.\\nFnder. section-2, of Article 45, of the Code, which provides that where the husband is a lunatic, or insane, and has been so found upon inquisition, and said finding- remains unreversed, and in force, the wife may convey her property as fully as if she were a feme sole, by her separate deed, whether the same be absolute, or by way of mortgage, she may mortgage her property, her husband having been declared insane by the special verdict of a jury in a criminal case, and being in confinement in a hospital for the insane under an order of the Court.\\nAppeal from the Circuit Court for Kent County.\\nThe case is stated in the opinion of the Court.\\nThe cause was submitted on briefs to Alvey, C. J., Miller, Robinson, Irving, Bryan, and McSherry, J.\\nHope H. Barroll, and Albert Constable, for the appellant.\\nJames A. Pearce, for the appellee.\", \"word_count\": \"1152\", \"char_count\": \"6463\", \"text\": \"Miller, J.,\\ndelivered the opinion of the Court.\\nThis is an action of \\\"ejectment, brought on the 3rd of January, 1888, by Mrs. Caroline Hadaway, a married woman, by her son and next friend, against Lavin'ia Smith, for a tract of land in Kent County, containing about one hundred and thirty-two acres, which was devised to the. plaintiff by her father, John P. Smith, who died in January, 1811.\\nProm the pleadings and admissions in the record, the following facts upon which the defence is based, appear to be. undisputed: On the 1st of October, 1812, the plaintiff, with other parties, executed two mortgages of this and other lands to Richard Hynson, one to secure the sum of $10,000 payable on the 1st of October, 1815, with interest payable semi-annually, and the other to secure the sum of $3,500, payable on the 1st of October, 1816, with interest also payable semi-annually; and each contained a power of sale in case of default in payment of principal or interest. Under these powers of sale, Hynson, on the 20th of June, 1816, sold all the mortgaged property, including the land in controversy, to the defendant, who became the purchaser thereof, and this sale has been duly reported to the Circuit Court for Kent County for confirmation, where it is now awaiting the action and decision of that Court. Under this purchase the defendant entered upon the land and ejected the plaintiff. The husband of the plaintiff did not unite with her in the execution of either of these mortgages, but in each it is recited that she is the \\\"wife of James H. Hadaway, who is a lunatic, or insane, and has been so found upon an inquisition in the Circuit Court for Kent County, and said finding remains unreversed and in force. \\\" The plaintiff was married in 1853, and in 1858 her husband was indicted and tried in the Circuit Court for Kent County for an assault with intent to kill one James E. Clark. At the trial the plea or defence of insanity was set up, and the jury returned a special verdict \\\"that the traverser, at the time of the commission of the offence for which he is indicted, was insane, and that he still is insane;\\\" and thereupon the Court ordered him to be confined in the Maryland Hospital for the insane, at the expense of the county, (it appearing by the evidence that he is without any property,) \\\"until he shall have recovered, and Tin til he shall have been discharged in due course of law;\\\" and he lias remained so confined in the Hospital under this order from that time to the present. This proceeding in the criminal case is expressly authorized by the Act of 1826, ch. 191, now embodied in the Code, Art. 59, secs. 4 and 5.\\nUpon this state of facts the Court below decided that the mortgages were binding upon the plaintiff, and were duly executed by her under that clause of the Act of 1812, ch. 210, (Code, Art. 45, sec. 2.,) which provides that \\\"where the husband is a lunatic, or insane, and has been so found upon inquisition, and said finding remains unreversed and in force, the wife may convey her property as fully as if she were a feme sole, by her separate deed, whether the same be absolute, or by way of mortgage;\\\" and we have no hesitation in affirming this ruling. The clause referred to, with others, was added by the Act of 1812, by way of amendment to the original law, (Code of 1860, Art. 45, sec. 2,) which gave the wife power to devise her property as fully as if she were a feme sole, and \\\"to convey the same by a joint deed with her husband.\\\" It seems to us clear that cases like the present come with- ,m the spirit and intent, if not within the exact letter, of this amendment, and are within the mischief intended to be remedied thereby. The clause does not say that the husband must be found to be insane by the inquisition of a jury summoned hy the sheriff under a writ ele lun\\u00e1tico inquirendo issued by a Court of equity; but its language is, who \\\"is a lunatic, or insane, and has been so found ujaon inquisition.\\\" The special verdict in the criminal case is certainly an ascertainment by a jury of the fact that he was insane at the time of the trial, and fully justifies the conclusion that he had been so found \\\" upon inquisition. ' It was a finding authorized by law, and was just as effectual in establishing judicially the fact of his insanity, as if it had been found upon inquisition under a formal writ de lun\\u00e1tico inquirendo. The order directing his confinement in the hospital until he recovered his reason, and was discharged in due course of law, was one which the law authorized and required the Court to pass in such cases. He has not recovered his reason, or.been discharged from his confinement, but has remained in confinement under this order from its date to the present time; and it may therefore be well said that the inquisition of the jury by which he was found to be insane remained unreversed and in force at the time these mortgages were executed by the wife. Some of the words, taken in their strict, technical sense, are exclusively appropriate to an inquisition under a writ de lun\\u00e1tico inquirendo, and such cases are unquestionably embraced by the clause, but to confine its operation to them would be giving to remedial legislation an unauthorized, technical, and narrow construction, disregarding its spirit and purpose. Further discussion of the subject is unnecessary. We are clearly of opinion the clause covers this case.\\n(Decided 14th November, 1889.)\\nJudgment affirmed.\"}"
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+"{\"id\": \"1832517\", \"name\": \"Solomon L. M. Conser vs. Samuel Snowden, Adm'r c. t. a. of Agnes D. Scholl\", \"name_abbreviation\": \"Conser v. Snowden\", \"decision_date\": \"1880-06-30\", \"docket_number\": \"\", \"first_page\": \"175\", \"last_page\": \"186\", \"citations\": \"54 Md. 175\", \"volume\": \"54\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T18:40:31.867813+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Solomon L. M. Conser vs. Samuel Snowden, Adm\\u2019r c. t. a. of Agnes D. Scholl.\", \"head_matter\": \"Solomon L. M. Conser vs. Samuel Snowden, Adm\\u2019r c. t. a. of Agnes D. Scholl.\\nDonatio causa mortis\\u2014Its essentials\\u2014What constitutes delivery of money in a Savings Bank\\u2014Rejection of Evidence \\u25a0 no ground of Appeal where its rejection is not prejitdicial to the appellant\\nIt is well settled in Maryland, that there is no difference in the legal requirements to make a good delivery in gifts inter vivos and mortis causa.\\nAlthough a gift moi'tis cama depends for its absoluteness on the death of the giver from the disease threatening life when the gift was made, so that recovery would revoke it, still for the time being, and until recovery, the absolute dominion over the thing given, must be parted with at the time of the gift.\\nS. on the 3rd of April, 1877, being sick at the time, gave O. a written order on a Savings Bank, for the payment to him of a sum of money on deposit in said Bank in her name. A memorandum was added, \\u201c the book must be sent with this order.\\u201d At the same time she gave C. a written order on G. in whose possession her book of deposit then was, requesting G. to deliver said book to 0. The order for the payment of the money, was presented at the Bank by 0. without the bank book, and he was told the money was there, and the order was in proper form, but could not be paid till the book was produced. S. died on the 10th of July, 1877, at a different place from that where the order was given. In an action by 0. against the administrator of S. to recover the amount of the order, the above facts were proven, but there was no proof that C. ever had the bank book in his possession, or that he ever made any efforts to get it; nor did it appear of what disease S. died, or what was her disease at the time the order was given. Held :\\n1st. That'standing as the money did in the name of S. at the Bank when she died, it devolved upon her legal representative, who having properly possessed himself of it, the plaintiff had no enforceable claim against the defendant or the fund.\\n2nd. That there was a serious failure of proof as to the disorder of which the alleged donor died, and it was essential to make the attempted gift, an effective gift mortis causa, that the donor should die of the very disorder with which she was suffering when the gift was made, and that there should be no intervening recovery.\\nWhere a party is not prejudiced by the refusal to permit him to testify, such refusal, even if erroneous, is no ground of appeal.\\nAppeal from the Court of Common Pleas.\\nThe case is stated in the opinion of the Court. The plaintiff excepted to the rulings of the court below, (Brown, J.,) which are sufficiently set forth in the opinion of this Court, and the verdict and judgment being against him, he appealed.\\nThe cause was argued before Bartol, C. J., G-rason, Miller, Robinson and Irving, J.\\nCharles E. Garritee and Charles J. Bonaparte, for the appellant.\\nA valid delivery, in cases of this class, \\u201cmust be according to the manner in which the particular thing is susceptible of being delivered.\\u201d (Hinkley Test. Law, 147.) \\u201cWhere the nature of the thing will not admit of a corporal delivery, * * * * a delivery of the means of coming at the possession, or making use of the thing given, will be sufficient.\\u201d Williams on Executors, 17th Ed., 776. And as will be seen from the cases, these \\u201cmeans of coming at the possession, or making use,\\u201d are often extremely indirect. Jones vs. Selby, Prec. Ch. 300; Smith vs. Smith, 2 Stra., 955; Snellgrove vs. Bailey, 3 Atk., 214; Gardiner vs. Parker, 3 Madd., 184; Blount vs. Burrow, 4 Bro. C. C., 72; Duffield vs. Elwes, 1 Bligh, N. S., 498, (1 Dow. N. S., 1;) Veal vs. Veal, 27 Beav., 303.\\nMore especially, the delivery of a cheque or order on a bank or banker, when made under circumstances satisfy ing the first two conditions of a donatio mortis causa, has heen adjudged a sufficient delivery of the money it calls for. Lawson vs. Lawson, 1 P. Wms., 441; Bouts vs. Ellis, 17 Beav., 121; 4 DeG., M. & G., 249. These cases must be distinguished from Hewitt vs. Kaye, 6 L. R. Eq. Cas., 618, and In re Beaks\\u2019 Estate, 13 L. R. Eq. Cas., 734, where the cheques, although signed in extremis, were intended as absolute and immediate benefactions, and could be effective, therefore, only as gifts inter vivos, though even for this purpose, the delivery in the present case would be sufficient, on the authority of Bromley vs. Brunton, 6 L. R. Eq. Cas., 275.\\nThe true test of sufficiency seems to be that the delivery should be the best which the circumstances of the case permit, i. e. that the donor should indicate his intention to give by acts as unequivocal as the nature of the thing given, and his own physical condition and surroundings allow. Duffield vs. Elwes, 1 Bligh N. S., 498, (1 Dow. N. S., 1;) Story Eq. Jur., ch. X, sec. 607; Brown vs. Brown, 18 Conn., 410; Waring vs. Edmonds, 11 Md., 424; Moore vs. Barton, 4 DeG. & Sm., 517.\\nIf we apply this test, we find that this testatrix did everything which an illiterate and dying woman could do; her bank-book being in the custody of a person living at a distance, and often absent from the city, to give the amount of money covered by her order to the plaintiff, she gave him a cheque in proper form on the Bank for the $1000 ; she gave him a written order on its custodian for the book; she had charged him previously to obtain this and she omitted no act that could possibly aid in effecting her purpose. For the plaintiff to obtain the book from Mrs. G-ambrill, and the money from the Bank, there was no need that the testatrix should perform one act or speak one word more than she did; and to hold the delivery herein sufficient, the Court must find that she could not have made a donatio mortis causa of her hank balance without the concurrence of some third party.\\nThere is, it is confidently submitted, no authority in the Maryland decisions, however it may be as to some dicta, to deny this unfortunate woman the right to do as she would with her own. No case in our reports, or it is believed in those of any reputable jurisdiction, avoids a gift really in expectancy of death, when accompanied by the best delivery the donor could make of its subject-matter, and the appellant claims of this Court a decision, that by the transactions of April 3rd, 1877, he acquired an equitable title to the amount of the order then signed, which a Court of chancery would compel the legal representative of the deceased to perfect.\\nIf this claim is well founded, the appellant was entitled to recover of the appellee the amount of this gift with interest, in the quasi equitable action for money had and received. Smith vs. Jones, 1 Dowl., (N. S.) 526; Marsh vs. Keeting, 1 Bing. N. C., 198; Calland vs. Lloyd, 6 M. & W., 26; Hayslep vs. Gymer, 1 Ad. & El., 162.\\nSamuel Snowden and Thomas A. Whelan, for the appellee.\\nIt is absolutely essential, to render perfect a donatio mortis causa, that the donor should be then in his last illness, and that the gift shall take effect only on the death of the donor by a disorder from which he is then suffering. Hebb vs. Hebb, 5 Gill, 509; Taylor vs. Henry and Bruscup, Adm\\u2019rs, 48 Md., 559.\\nIt is also absolutely essential to the perfection of a gift mortis causa that there be a delivery of the subject of the donation. The subject of the gift here, was a sum of money in the Savings Bank of Baltimore, the donor gave a check for the money, and also an order for the delivery of the bank-book, which was in the hands of a friend, Mrs. G-ambrill; the rules of the Bank which she had at one time in her possession, prescribes that no check would he paid hy the Bank, unless accompanied hy the production of the bank-book.\\nThe delivery must he, according to the manner in which the particular thing is susceptible of being delivered, and that which is not capable of being delivered, is not the subject of donation. It is no answer to this to say, that under the particular circumstances of this case, the party did all that could have been done hy her; she was compelled to do more, the nature of the thing was susceptible of more; it was susceptible of any actual delivery in money, or the actual delivery at least of the bank-book. Pennington vs. Gittings, 2 G. & J., 215; Murray vs. Cannon, Adm\\u2019r, 41 Md., 476; Nickerson vs. Nickerson, 28 Md., 332; Hebb vs. Hebb, 5 Gill, 506; Taylor vs. Henry and Bruscup, Adm\\u2019rs, 48 Md., 559; Bradley vs. Hunt, Adm\\u2019r, 5 G. & J., 58.\\nIn the case of Waring vs. Edmonds, 11 Md., 432, cited hy the counsel for the appellant in the Court below, although the subject of the gift, three negroes, was not personally present, still the party in whose custody they were, was present, and was solemnly charged to fulfil the wish of the donor, which she equally as solemnly promised to do, and actually did. And on page 433, the Court say the party was in extremis unable to write, and fully conscious of her approaching death, declaring the gift and the delivery, and also the open avowal of its acceptance hy the donee.\\nIn this particular case, although the order for delivery of the bank-book was given, still it does not appear that any demand was ever made for it, or any acceptance by the holder of it, and the donor died with it in her possession, as the administrator presented the same to the Bank for payment of the deposits. Until the bank-book was delivered, the party had a right to recall the order, and demand the hook, so there remained at all times a locus penitentiae, and the grantor never parted with the legal dominion over this money; it cannot he held likewise to he a trust, for there is no evidence that Mrs. Gambrill held the bank-book afterwards for the appellant, or that she even knew of the order being given, or in any way accepted it. Had the appellant been allowed to he sworn, he could not have testified on these subjects, and cured this want of proof; so there was no error by the Court, upon which the judgment could he reversed, and the appellee submits that the judgment should he affirmed.\", \"word_count\": \"4274\", \"char_count\": \"23272\", \"text\": \"Irving, J.,\\ndelivered the opinion of the Court.\\nThis is an action of assumpsit instituted by the appellant against the appellee as administrator c. t. a. of Agnes Scholl. The narr. is in the ordinary form, with money counts, and a hill of particulars limits the claim of the appellant to the count for money had and'received to the appellant's use, and defines the claim to he for one thousand dollars with interest accrued, which has been received by the appellee for the use of the appellant, the same having been given the appellant by the appellee's testator as a gift, mortis causa.\\nThe facts essential to a proper understanding of the questions presented for our decision are as follows: Agnes Scholl, who for many years was a servant in the appellant's family, was ill at Bay view Asylum, and the appellant and his daughter, (Mrs. Schaefer) in March, 1811, visited her there. While there, Mrs. Schaefer testifies, \\\"She made remarks and exclamations as though she was suffering pain; she then' said she had a considerable amount of money in a Bank on Gay street, which she wished to leave the appellant; he asked her to leave it to his children instead, and she requested him to prepare a will leaving it equally to witness and her two brothers; she then seemed much worried lest some accident should befall this will, and appellant suggested that she should give him an order for the money on the hank; to this she assented, and asked him to prepare such an order, and also told him to obtain her bank book from a Mrs. Margaret A. G-ambrill, in .whose custody she said it then was; she said she did not remember the exact amount of the balance shown by this book, but knew it exceeded one thousand dollars. On April 3rd, 1877, the witness and appellant went again to see her, when she signed the following will, \\\" In the name of God, Amen! I, Agnes Scholl, of the City of Baltimore, and State of Maryland, being of lawful age and in my right mind, after due reflection, and uninfluenced by any one concerned, and of my own will and accord, do make this my last will and testament. And, first, it is my will that so much of the $65 last deposited in the Savings Bank of Baltimore as may be necessary, be expended to secure my remains a decent Christian burial. Secondly. It is my will that all my other goods and moneys and all my estate and effects whatsoever, be distributed equally between Virginia M. Conser, Carlton Conser and C. Ellsworth Conser, children of S. L. M. Conser, excepting my clothes and household effects, which are stored at Mrs. Louisa Caskie's, which shall be Virginia M. Conser's exclusively. And thirdly, it is my will and pleasure that the said S. L. M. Conser, of the city aforesaid, shall see that this, my will, is fully and truly executed.\\\" This will was attested by V. Marion Conser, (Mrs. Schaefer), and the appellant. The testatrix died on the tenth of July, 1877, and the will filed in the proper office and proved by S. L. M. Conser on the 6th of August, 1877, and at the time S. L. 'M. Conser proved the will, he swore he received it from the testatrix, and had retained it, and knew of no other'. The order given appellant on April, 3rd, 1877, read as .follows:\\n<- Baltimore, April 3rd, 1877. The Savings Bank of Baltimore, pay to the order of S. L. M. Conser, or bearer, the sum of one thousand dollars and-cents, and charge book No.\\u2014. Signed, Agnes X Scholl.\\\" It was witnessed by Y. Marion. Conser. A memorandum was added, \\\"The book must be sent with this order.\\\" The order for the bank book was in these words, \\\" Mrs. Gambrill will please give Mr. Conser my bank book.\\\" It was signed by Agnes Scholl making her mark, and was without witness. This last paper was first in appellant's possession, and was \\u2022 afterwards given to the Avitness, Mrs. Schaefer, who never gave it back as she remembers, and after search it cannot be found, and witness thought it was lost. The order for the money, after it was given the appellant, witness and the appellant took to the Bank and exhibited, and were told the money was there, and the order in proper form, but could not be paid till the book was produced. No proof was offered that the book was ever in appellant's bands, or that he. ever made any effort to get it. It was not shown what became of the bank book. But the appellant, to raise the presumption that it was never returned to the testatrix, proved. by a daughter of Mrs. Gambrill, the custodian of it, that for many years prior .to the 3rd of April, 1811, her mother kept a bank book for Mrs. Scholl; that it was kept in her wardrobe; that witness lived with her mother, and had never known of this book being given up prior to April 3rd, 1811, and believed it was then in her custody. About that time her mother was frequently absent from Baltimore, visiting in Anne Arundel County. The appellant having closed his case without offering any other proof than what has been herein incorporated, the appellee was required by the Court to ask an instruction \\\" that under the pleadings in this cause there is not sufficient evidence on which the plaintiff can recover, and their verdict must be for defendant.\\\" This was done, and the instruction was granted. The granting of this prayer and the refusal to permit the appellant to testify as a witness are the only subjects of exception. We will consider them in reverse order, and first pass upon the second exception, which relates to the instruction given the jury.\\nThe appellant contends that all the requisites necessary to the perfection of a gift mortis causa coexist in this case, and especially complains that in deciding that a sufficient delivery was not effected, so as to entitle the appellant to recover, the Court improperly held there was no difference in the legal essentials of delivery in a gift mortis causa and one inter vivos. To sustain this view, very many cases have heen cited and relied on, which it will not he necessary for us to review or refer to, for the doctrine is well settled in Maryland, that there is no difference in the legal requirements to make a good delivery in gifts inter vivos and mortis causa. According to the decisions in this State, if the delivery in this case was not such as would have made an effective gift inter vivos, it will he insufficient to perfect an attempted gift mortis causa. Pennington, Adm'r, &c. vs. Gittings' Ex'r, &c., 2 Gill & Johnson, 215; Bradley and Wife vs. Hunt, Adm'r of Jack, 5 Gill & Johns., 58; Hebb vs. Hebb, 5 Gill, 509; Taylor vs. Henry, 48 Md., 559. Justice Woodward, in Mitchener vs. Dale, 23 Pa. St. R., 59, concisely defines a gift mortis causa to he that of a \\\" chattel made hy a person in his last illness, or in periculo mortis, subject to the implied condition that if the donor recover, or if the donee die first, the gift shall he void.\\\"\\nIn Taylor vs. Henry, 48 Md., this Court says, \\\" In order to render perfect a donatio mortis causa three things must concur: 1. That the gift he made with a view to the death. 2. That it he with a condition, either express or implied, that it shall take effect only on the death of the donor, hy a disorder from which he is then suffering ; and 3. That there he a delivery of the subject of the donation.\\\" In that case, as here, the claim was made to a fund on deposit in hank, which was claimed as a gift of that character. In that case 'the deceased was suffering from the disease of which he died. After the deposit of the money in Bank to the credit of himself and his sister, and subject to the order of the survivor of them, the deceased made a will, in which he disposed of his estate between his mother and sisters, one of whom was the claimant, afterwards, of all as a gift. He had no property hut that fund. The Court held it to he clearly neither a gift inter vivos nor mortis causa. In Pennington's Case the alleged donor had a certificate of stock in the Commercial and Farmers Bank of Baltimore, which shortly before his death he endorsed, and handed to the donee, saying, lie gave her the stock; hut the certificate was not in the life time of the testator taken to the Bank, that the stock might he transferred to Mrs. Patterson on the hooks of the Bank. The Court held that it was stock which was intended to he given, and there was therefore no delivery of it. The Court said it was like the case of Mary Tate vs. Hilbert, and Jane Tate vs. Hilbert, 2 Vesey, Jr., 112, where a man, a short time before his death, gave a check on his banker, which was not presented for payment before the death of the donor, and it was held that as the check was not presented and paid in the life-time of the maker, the intended donation of the money was defeated for want of delivery ; notwithstanding the holder of the check by presenting and obtaining payment in the lifetime of the maker could have perfected the gift. This case of Tate is fully adopted by the Court in Pennington's Case as laying down the law properly; and the Court say with reference to the question before them, whether it was an attempted gift inter vivos or mortis cousa, made no difference. If in the Tate Case the holder of the check was not entitled to relief in equity, it is very clear that this appellant was not entitled to recover, upon his proof, from the appellee, adm'r, of Agnes Scholl, in his suit at .law. In this case it was the money which was sought to he given, and an order was given for its payment to the appellant, and although he .does appear to have gone to the Bank with his order, he was not paid, hut was told it could not he paid without the hank hook being brought with the order. Indeed he had notice of this rule of the Bank, for it appears the very order which he took contained a notice endorsed that the hank hook must be presented with the order. It is true he appears to have had an order on the custodian of the bank hook for its delivery to him; but it does not appear that he ever made any demand for it, or ever obtained it, or ever made further effort to procure the money from the Bank. The money which it is alleged was sought to he given was never obtained, and according to the principles settled in the cases already referred to, the gift was \\\"not perfected by a sufficient delivery of the thing given, in the life-time of the appellee's testator. Although such gift depends for its absoluteness on the death of the giver from the disorder threatening life when the gift was made, so that recovery would revoke it, still, for the time being and until recovery, the absolute dominion over the thing given must he parted with at the time of the gift. In this case it is clear that so long as the money was in the Bank in her name, she or any other person with an order from her, on presenting the hank hook, could have drawn the money, notwithstanding the appellant had an order for it. He never was in condition to secure the payment from the Bank, and payment hv the Bank to any one .else properly equipped with an order and the hook, would have been legitimately made. ' Standing, as the money did in Agnes Scholl's name, at the Bank when she died, it devolved upon the legal representative, who has properly possessed himself of it, and the appellant has no enforcible claim against the appellee or the fund. In addition to the defective delivery, on which ground we were told at the hearing, the Court below based its instruction, there was a serious failure of proof as to the disorder of which the alleged donor died. As we have already said it was essential, to make the attempted gift, an effective gift mor Us causa, that the donor should die of the very disorder with which she was suffering when the gift was made, and that there should have been no intervening recovery. In this case the character of the sickness with which she was suffering at the time the transaction took place, was very imperfectly described. She is represented as making exclamations indicative of suffering, and that is all. At that time she was at Bayview Hospital. She died in an entirely different institution\\u2014St. Agnes Hospital, to which she removed. How or when she removed does not appear. In what condition she was after the third day of April, does not appear. Whether the. same disorder with which she was suffering on the 3rd of April continued, and finally proved fatal, is not shown. We only know that three months and more after the third of April, she died in an entirely different locality. There is not a tittle of evidence as to the final cause of death; so that another ingredient of a gift mortis causa is entirely wanting. There was no error therefore in the instruction given by the Court, to which exception has been taken. Having decided that there was in this case no gift causa mortis, it becomes wholly unnecessary to decide the question of evidence ; for even admitting the Court erred in the refusal to permit the appellant to testify, but upon which we express no opinion, the appellant was not prejudiced by it. We are not informed what he expected to prove, but it is very certain he could not prove the delivery of the money to him, for if he had got it he would not now be suing for it. The judgment will be affirmed.\\n(Decided 30th June, 1880.)\\nJudgment affirmed, with, costs.\"}"
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+"{\"id\": \"1842554\", \"name\": \"M. K. Walsh vs. Mary E. Taylor\", \"name_abbreviation\": \"Walsh v. Taylor\", \"decision_date\": \"1874-03-03\", \"docket_number\": \"\", \"first_page\": \"592\", \"last_page\": \"600\", \"citations\": \"39 Md. 592\", \"volume\": \"39\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:04:21.726033+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bartol, C. J., Stewart, Grason, Miller, Alvey and Robinson, J.\", \"parties\": \"M. K. Walsh vs. Mary E. Taylor.\", \"head_matter\": \"M. K. Walsh vs. Mary E. Taylor.\\nWhat does not constitute a Trespass \\u2014 Instruction.\\nThe plaintiff purchased of the defendant certain articles of furniture, and paid part of the price at the time, and agreed to pay the balance in weekly instalments of one dollar. By a written contract entered into at the time, and signed by both parties, and admitted in evidence without objection, it was agreed that if before full payment, the plaintiff should part with the possession of the goods, or if there should be default in the payment of any one of the weekly instalments, for three successive weeks, the defendant should have the right to reclaim and take possession of the goods wherever the same might be found, it being understood that the sale was conditional only, and that for the retaking possession, the defendant or his agent should not be subject to any proceeding criminal or civil; and it was further agreed that all payments of instalments should be regarded as forfeited upon default by the plaintiff in making the weekly payments. Upon default made by the plaintiff in complying with the contract, the defendant called with three of his agents at the house of the plaintiff, and according to the evidence on the part of the plaintiff, demanded payment of the money due or a return of the furniture; and the plaintiff being unable to pay the money, and refusing to deliver up the furniture on the defendant\\u2019s demand, the latter called in one of his men to take the furniture away, and proceeded up stairs in search of it, and entered the rooms and examined the furniture therein against the remonstrance of the plaintiff. The jilaintiff herself testified that her servant opened the front door, on the ringing of the bell, and the defendant entered the house, and then told her, the plaintiff, that he had come to take away the furniture, and she proposed to deliver up one of the articles in payment of the balance (lae, but that the defendant refused to accede to her proposition. It was proved on the part of the defendant that upon being told by the plaintiff, that she was unable to pay the balance due, and it being proposed that he should take back one of the articles purchased and thus settle the matter, he acceded to the proposition, and thereupon called in one of his agents to assist in removing the article, and proceeded up stairs to get it, where, as he was informed by the plaintiff, it was to be found: that he did not find it and left the house without it. The plaintiff sued the defendant in trespass for breaking and entering her dwelling house and making a noise and disturbance therein &c. The defendant pleaded that he did not commit the wrongs alleged. At the instance of the plaintiff the Court instructed the jury that if they believed that the defendant entered on the premises of the plaintiff against her consent, or having entered into the hall or passage of her house, without her knowledge, afterwards, and against her consent, went into the rooms, &c. of her house, and inspected and handled the furniture therein, the said mtrance was a trespass ah initio, and the plaintiff was entitled to damages &c. On appeal by the defendant, it was Held :\\nThat the Court below erred in instructing the jury upon the evidence, that the entrance into the dwelling house of the plaintiff by the defendant was a trespass ah initio. The contract signed by the parties, gave the defendant a license coupled with an interest; and as such the plaintiff could not withdraw from it, and hold the defendant as a trespasser for doing what she had agreed he might do with impunity.\\nThe defendant having authority to enter the house of the plaintiff, for the purpose of retaking his goods, had authority to take such agents or assistants with him, as were necessary to accomplish the act authorized to be done.\\nWhere the Court is called upon by the plaintiff to instruct the jury as to the right to recover upon an assumed state of facts; if the proof of the defendant would clearly establish any proposition or right inconsistent with the theory of the instruction asked by the plaintiff, based upon his own evidence, such instruction should not be granted, because it must assume, or admit the truth of all the defendant\\u2019s proof on the subject.\\nAppeal from the Superior Court of Baltimore City.\\nThe case is stated in the opinion of the Court.\\nException. \\u2014 The plaintiff offered two prayers, which the Court (Dobbin, J.) granted ; the first is set out in the opinion of this Court, the second is as follows:\\nIf the jury find from, the evidence that the defendant came unlawfully into the premises of the plaintiff, and then and there conducted himself in a violent and angry 'manner, using abusive and insulting language to the plaintiff, and putting her and her family into bodily fright and alarm, their verdict should be for the plaintiff, \\u25a0and they may find punitive and exemplary damages, and in such an amount as they shall think will redress the wrongs suffered by the plaintiff, and punish the defendant for the wrongs and injuries of which they may think \\u2022he is guilty.\\nThe defendant offered four prayers, the second, third and fourth of which the Court granted, the first as follows, it rejected:\\nThat unless the jury believe from the evidence that the defendant entered the dwelling house of the plaintiff, No. 68 Sharp street, forcibly and against her will, she is not.entitled to recover in this action on the first and third counts in her declaration ; and further, that there is no evidence that the defendant entered said dwelling house with force and arms.\\nTo the ruling of the Court in granting the plaintiff\\u2019s prayers, and rejecting the first prayer of the defendant, he excepted, and the verdict and judgment being against him, he appealed.\\nThe cause was argued before Bartol, C. J., Stewart, Grason, Miller, Alvey and Robinson, J.\\nSeverely Johnson, for the appellant.\\nAllan B. Magruder, for the appellee,\\nRelied in support of the plaintiff\\u2019s first prayer on 2 Saunders on Pl. & Ev., 854; 9 Bacon\\u2019s Abridg., 449, 450, B.; The Six Carpenters\\u2019 Case, 8 Coke, 146; 1 Smith\\u2019s Leading Cases, 259.\\nThe plaintiff\\u2019s second prayer is supported by Young vs. Mertons, 27 Md , 128; Zimmerman vs. Helser, 32 Md., 277, 278.\", \"word_count\": \"2892\", \"char_count\": \"16559\", \"text\": \"Alvey, J.,\\ndelivered the opinion of the Court.\\nThis was an action of trespass by the appellee against the appellant, for breaking and entering the dwelling house of the plaintiff, and making a noise and disturbance therein, and depriving the plaintiff of the use thereof, &e., and to which the defendant pleaded that he did not commit the wrongs alleged.\\nAt the trial below, it was proved, on the part of the plaintiff, that she was keeping a boarding-house, and that she purchased of the defendant certain articles of furniture, and paid part of the price at the time, and agreed to pay the balance in weekly instalments of one dollar. That after the entire balance of the purchase money had fallen due, the defendant, having three men with him, entered the plaintiff's house, and demanded payment of the money due, or a return of the furniture, and the plaintiff being unable to pay the money, and refusing to deliver up the furniture on the defendant's demand, the latter called in one of his men to take the furniture away, and proceeded up stairs in search of it, and entered the rooms and examined the furniture therein, against the remonstrance of the plaintiff. That the defendant and those with him, remained on the premises twenty-five or thirty minutes, against the consent of the plaintiff, and while there the defendant indulged in loud and abusive language ; and that he entered the room of the plaintiff's daughter with such violence as to terrify her. The plaintiff herself stated that her servant opened the front door on the ringing of the bell, when the defendant entered the house, and that he then told her, the plaintiff, that he had come to take away the furniture, and she proposed to deliver up one of the articles in payment of che balance due, but that the defendant refused to accede to her proposition.\\nAfter this evidence on the part of the plaintiff, the defendant then offered in evidence the written contract, signed by both parties, whereby the articles of furniture were- sold, and by such contract it was stipulated and agreed, that the balance of the purchase money for the furniture should be paid in weekly instalments of one dollar, until the whole amount was paid, and that if, before full payment, the plaintiff should part with the possession of the goods, or if there should be default in the payment of any one of the weekly instalments, for three successive weeks, the defendant should have the right to reclaim and take possession of the goods, wherever the same might he found, it being understood that the sale was conditional only, and that, for the retaking possession, the defendant or his agent, should not be subject to any proceeding, criminal or civil. And it was further agreed that all payments of instalments should be regarded as forfeited, upon default by the plaintiff in making the weekly payments, as provided by the contract.\\nIt was also proved, on the part of the defendant, that after default made by the plaintiff in complying with the contract, he, with three of his agents, called at the house of the plaintiff in regard to the furniture, and upon being tpld by the plaintiff that she was unable to pay the balance due, it was proposed that he should take back one of the articles purchased, and thus settle the matter.; that this proposition was acceded to by him, and he thereupon called in one of his agents to assist in removing the article, and proceeded up stairs to get it, where, as as he' was informed by the plaintiff, it was to be found ; though he did not find it, and left the house without it.\\nUpon the evidence the plaintiff prayed for and obtained two instructions to the jury. The first was that if the jury believed from the evidence that the defendant entered on the premises of the plaintiff against her consent, or, having entered into the hall or passage of her house without her knowledge, afterwards, and against her consent, went into the rooms, chambers, or interior passages of her house, and inspected and handled the furniture therein, the said entrance was a trespass ah initio, and the jury could assess such damages for the trespass and injury to the property and personal rights and feelings of the plaintiff, as they might deem a just compensation for the wrong and injury sustained.\\nIn granting this instruction we think the court below fell into error.\\nThere was no plea of leave and license interposed by the defendant; but the contract, signed by the plaintiff, and about which there was no dispute, was admitted in evidence without objection. The instruction, as is perceived, makes no reference whatever to the pleadings in the cause. There was, therefore, no question raised by the instruction as to the pleadings, or the issues formed thereby ; it having been repeatedly decided by this Court that, on such an instruction, the only question presented is, whether the law be properly announced with reference to the facts of the case as they may be found by the jury. Stockton vs. Frey, 4 Gill, 406. And where the Court, as in this case, is called upon by the plaintiff to instruct the jury,, as to the right to recover upon an assumed state of facts, if the proof of the defendant would clearly establish any proposition or right inconsistent with the theory of the instruction asked by the plaintiff, based upon his own evidence, such instruction should not be granted, because it must assume or admit the truth of all the defendant's proof on the subject. McTavish vs. Carroll, 7 Md., 352; Coates & Glenn vs. Sangston, 5 Md., 121.\\nNow the instruction under consideration makes no reference whatever to the agreement in evidence, whereby the defendant was fully authorized to take the goods where-eVer found, in the event of default of payment by the plaintiff: and that she had made default was abundantly established by her own evidence. All the rights and authority of the defendant under the contract, were left out of view, by this instruction. The contract, the construction of which was for the Court, plainly gave the defendant an irrevocable license, or rather, a license coupled with an interest; and, as such, the plaintiff could not withdraw from it, and hold the defendant as a trespasser for doing what she had agreed he might do with impunity. The prayer states no act to have been done by the defendant that may not have been fully authorized by the agreement, in order to regain possession of the goods. Where, for instance, one sells personal chattels on his own premises, and before a reasonable time to remove them-, he forbids the purchaser to enter and take them, it has been held to be a license which he could not revoke within such reasonable time. Nettleton vs. Sikes, 8 Metc., 34; White vs. Elwell, 48 Me., 350. So here, having reference to the agreement, it could with no propriety be said that the simple entry into the house, even without the consent of the plaintiff, if no violence attended the act, constituted a trespass db initio. And the defendant having authority to enter the house for the purpose of retaking his goods, had authority to take such agents or assistants with him, as were necessary to accomplish the act authorized to be done. This was expressly decided in the case of Dennett vs. Grover, Wills Rep., 195.\\nIn the case of Wood vs. Manley, 11 Adol. & Ell., 34, goods which were upon the plaintiffs land were sold to the defendant, and by the condition of sale, to which the plaintiff was a party,- the buyer was to be allowed to enter and take the goods; and in an action of trespass against the defendant for entering the plaintiff's premises to take the goods purchased by him, it was held, 1. That, after the sale, the plaintiff could not countermand the license ; and, 2. That the defendant was entitled to' the verdict, though it appeared that the plaintiff had, between the sale and the entry, locked- the gates and forbidden the defendant to enter, and the defendant- had broken down the gates and entered to take the goods. In that case Lord Denman, Ch. J., said: \\\"Mr. Crowder's argument goes this length ; \\u2014 that, if I sell goods to a party who is, by the terms of the sale, to be permitted to come and take them, and he pays me, I may afterwards refuse to let him take them. The law countenances nothing so absurd as this: a license thus given and acted upon is irrevocable.\\\" And of that opinion were all the Judges. The same principle has been fully adopted by this Court in the case of Long vs. Buchanan, 27 Md., 502.\\nThere is no doubt of the general principle, that where a person has a special privilege or authority to enter upon the premises of another to seize goods, or do other acts, and he exceeds his authority, by doing what he was not authorized or justified in doing, he becomes a trespasser ab initio. All his subsequent acts are trespasses, and he is in the same position as if he was a perfect stranger, acting without any color of excuse or justification. Add. on Torts, 255. But the acts enumerated in the first instruction, given at the instance of the plaintiff, are not stated to have been done with any violence, or with any degree of\\\" force, except as that may be implied from the fact that they were done against the consent of the plaintiff. The defendant entered the house for the purpose of receiving pay, or retaking the articles of furniture, which he had a right to do under the contract; the entry not being at an unreasonable hour, or in any un usual way. The defendant, had the right to take the articles wherever found, and from their character they would most likely be found in some of the chambers of the house. It is, therefore, plain, we think, that this instruction, in the terms given, was inconsistent with the right and authority of the defendant, under the contract, and consequently calculated to mislead the jury.\\n(Decided 3rd March, 1874.)\\nAs to the plaintiff's second prayer, which was granted, and the defendant's first prayer, which was refused, all that is necessary to be said in regard to them is, that we discover no error in the rulings thereon that would justify a reversal. But as we think there was error in granting the plaintiff's first prayer, for the reason stated, the judgment below will be reversed, and a new trial awarded.\\nJudgment reversed, and .new trial aivarded.\"}"
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+"{\"id\": \"1848534\", \"name\": \"Samuel E. Schindel and Wife, vs. Henry H. Keedy and George W. Smith, Trustees, and Charles B. Boyle\", \"name_abbreviation\": \"Schindel v. Keedy\", \"decision_date\": \"1876-01-19\", \"docket_number\": \"\", \"first_page\": \"413\", \"last_page\": \"420\", \"citations\": \"43 Md. 413\", \"volume\": \"43\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:00:55.194843+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bartol, C. J., Brent, Miller and Robinson, J.\", \"parties\": \"Samuel E. Schindel and Wife, vs. Henry H. Keedy and George W. Smith, Trustees, and Charles B. Boyle.\", \"head_matter\": \"Samuel E. Schindel and Wife, vs. Henry H. Keedy and George W. Smith, Trustees, and Charles B. Boyle.\\nSales under a Decree in Equity \\u2014 Exceptions to Trustees Sales\\u2014 Construction of Mortgages in regard to the mortgage Debts bearing Interest.\\nIt is well settled in this State, that in all sales made under a decree in equity, the Court is in fact the vendor, acting for and in behalf of all parties interested, the trustee being the mere agent of the Court.\\nThe contract of sale in such cases is never regarded as consummated until it has received the sanction of the Court.\\nAll objections to the sale on the ground of error, mistake or misrepresentation, either in regard to the terms or manner of sale; or in regard to the nature and character of the interest in the property decreed to be sold, are open for consideration before final ratification; and when such objections are made the Court will either ratify or set aside such sale, as equity and good conscience may require.\\nWhere a trustee is advised before the sale of a doubt in regard either to the title or the nature and character of the interest in the property to be sold, it is his duty to use all reasonable efforts to disembarrass the title of such doubt in order that the property may bring its fair market value.\\nWhere property was decreed to be sold subject to the lien of certain mortgages, but owing to their peculiar character and phraseology a doubt arose in regard to their construction, and the extent of the liens subject to which the properly was decreed to he sold \\u2014 it was the duty of the trustees before making the sale, to have submitted the matter to the Court for its determination.\\nIf, however, this was not done, and the question was brought to the attention of the Court before the final ratification of the sale, it was the duty of the Court to have decided it a t that time in order to prevent further litigation between the parties.\\nCertain moneys were loaned upon mortgages to S. E. C., by the executors of S. C., in pursuance of a power conferred upon them by his will. By the terms of the will, the mortgagor himself was entitled to the annual interest on the mortgage debt during his life. The mortgages provided only for the payment of the mortgage debt upon the death of the mortgagor, and did not provide for the payment of interest during the life time of the mortgagor, but the provisions of the will under which the executors were directed to .invest the money so that S. E. 0., the mortgagor, should receive the annual interest thereon for life, were set out at length upon the face of the mortgages. A decree was passed for a sale of the mortgaged premises, subject to the lien of the' mortgages. Upon exceptions filed by S. E. 0., the . mortgagor, to the sale made under this decree, it was Held :\\n1st. That when the mortgagor\\u2019s ownership of the property ceased, and it was sold under-the decree, the trust created by the will, and set out at length on the face of the mortgages, attached to the property in the hands of the purchaser.\\n2nd. That the mere fact, that there was no provision in express terms, for the payment of interest during the life of the cestui que trust, in the event of a sale of the property, did not affect the question provided it was fairly inferrible from the face of the mortgages that such was the intention of the parties.\\n3rd. That the sale should be ratified and the purchaser directed to pay to S. E. C. during his life the annual interest on the mortgages, and upon his death to pay the principal of the mortgage debt to the mortgagees.\\nAppeal from the Circuit Court for Washington County, in Equity.\\nThis is an appeal from an order of the Court below, overruling the exceptions of the appellants to the sale made and reported by the appellees Henry H. Keedy and George W. Smith, trustees, and finally ratifying and confirming said sale. The case is stated in the opinion of this Court.\\nThe cause was argued before Bartol, C. J., Brent, Miller and Robinson, J.\\nLouis E. McComas, for the appellants.\\nHenry H. Keecly, for the appellees.\", \"word_count\": \"2700\", \"char_count\": \"15131\", \"text\": \"Robinson, J.,\\ndelivered, the opinion of the Court.\\nThe will of Samuel Schindel directed his executors to invest the distributive share of his son, Samuel E. Schindel in some secure manner, the interest thereon to be received by his said son during his life, and upon his death the principal to be distributed among his children or their representatives.\\nIn pursuance of the power thus conferred upon them, Richard II. Alvey and George Schindel, executors therein named, loaned to the said Samuel E. Schindel, the sum of three thousand four hundred and eighty dollars, the same being the amount of said distributive share, to the interest upon which the said Samuel E. was entitled during his life. To secure the payment of the principal upon his death, two mortgages were executed by him of certain real estate sold under the proceedings in this case.\\nIn these mortgages provision is made for the payment to his children of the principal upon his death, but there is no provision for the payment of the annual interest thereon during his life. The mortgagor himself being entitled under the will of his father to such interest, he was permitted by the terms of the mortgage to appropriate it to his own use.\\nThe will, however, directing the executors to invest the distributive share of Samuel E., the son, in some secure manner, so that he should receive the interest thereon during his life, and upon his death the principal to be distributed among his children, and the object and purpose of \\\"the executors in loaning the principal to the said Samuel E. Scliiudel, in order that he might receive and appropriate the interest due thereon during his life, are set out at length upon the face of the mortgages.\\nSubsequently Samuel E. Schindel mortgaged the same property to other persons, and upon a bill filed by one of the mortgagees to foreclose, all prior and subsequent incumbrancers were made parties.\\nIn their answer to this bill, the executors of Samuel Schindel, say that the mortgages to them were taken as a permanent investment for the object and purposes stated on their face, and that they are not liable to redemption or foreclosure, until after the death of Samuel E. Schindel; and that they can only consent to a sale of the mortgaged premises upon condition, that they are sold subject to said mortgages; that is 'to say, upon condition that the purchaser and those claiming under him, shall pay annually the interest on the mortgage debt to Samuel E. Schindel, during the term of his life, and upon his death to pay the principal of said debt to the mortgagees.\\nThe cause was submitted to the Court below on bill, answer and exhibits, and a decree was passed for the sale of the property, free and discharged of the claims of all parties to the suit, except the claims and liens of the several mortgages to R. H. Alvey and George Schindel, executors of Samuel Schindel.\\nUnder this decree, the property was sold by H. II. Needy and George W. Smith, to Doctor Charles B. Boyle for the sum of eight thousand and five hundred dollars.\\nTo the ratification of the sale thus made Samuel E. Schindel, mortgagor, and Urilla his wife, filed sundry objections, the fifth and sixth being in these words :\\n5. That the purchaser at the sale claims and confidently expects that his said purchase is subject only to the lien of the principal sums named in the mortgages to Richard H. Alvey and George Schindel, executors, and not subject to the interest on said principal sums to be poaid annually to this exceptant Samuel, or to said mortgagees for the use and benefit of said Samuel, wherefore by the ratification of said sale great injustice will be inflicted on this except-ant Samuel and much litigation produced.\\n6. That the precise nature, effect and lien of said two mortgages to said executors as recited therein, as well as in the answer of said executors and in the decree in this cause, does not sufficiently appear in the proceedings and advertisement of sale, and unless the same can be clearly set forth in the final order of ratification, or unless said sale be set aside, great injustice will be done to these exceptants by reason of mistake and error.\\nA petition was also filed by Doctor Boyle, purchaser, alleging that he bought the property under the belief that he was not to pay interest on the mortgage debt due the executors of Samuel Schindel, during the life-time of Samuel E. Schindel, but was liable only to the payment of the principal upon the death of said Samuel E. ; that since the purchase he had heard of the claim of annual interest on said mortgage debt, and that a ratification of the sale would be a fraud upon him, &c.\\nThis petition, and all objections to the ratification of the sale were subsequently withdrawn by the purchaser, but in the statement of facts upon which the case was submitted to the Court, he still claims that under the sale and purchase, he is not liable for the payment of interest on the mortgage debt.\\nThe Court below refused to decide the questions raised by the fifth and sixth exceptions of the appellants, being of opinion they were more properly determinable in a separate suit to be brought for that purpose. These and other exceptions filed by the appellants were overruled, and a general order of ratification passed.\\nThe first question then, is whether it was the duty of the Court, before final ratification of sale, to have decided the questions presented by the appellants' fifth and sixth exceptions ?\\nIt is well settled in this State, that in all sales made under a decree in Equity, the Court is in fact the vendor, acting for and in behalf of all parties interested, the trustee being the mere agent of the Court. Green vs. Clapp, 11 G. & J., 1; Perrin vs. Keitley; 9 Gill, 412; Goldsborough vs. Ringgold, 1 Md. Ch. Dec., 239.\\nThe contract of sale in such cases being one between the Court as vendor, and the purchaser, it is never regarded as consummated until it has received the sanction of the Court. Wagner vs. Marshall & Cohen, 6 Gill, 100. All objections therefore to the sale on the ground of error, mistake, or misrepresentation, either in regard to the terms or manner of sale; or in regard to the nature and character of the interest in the property decreed to be sold, are open for consideration before final ratification ; and when such objections are made the Court will either ratify or set aside such sale as equity and good conscience may require. Bolgiano vs. Cooke, 19 Md., 375.\\nIt is true, in chancery sales in this State, there is no examination of title by an officer of the Court as in England, but where a trustee is advised before the sale, of doubt in regard either to the title or the nature and character of the interest in the property to be sold, it is his duty to use all reasonable efforts to .disembarrass the title of such doubt, in order that the property may bring its fair market value.\\nNow in this case, the property was decreed to be sold subject to the liens of certain mortgages held by the executors of Samuel Schindel. Ordinarily the examination of a mortgage would disclose on its face the extent of the lien thereby created, but owing to the somewhat peculiar character and phraseology of the mortgages in question, a doubt seems to have arisen in regard to their construction, and the extent of the liens, subject to which the property was decreed to be sold.\\nThe 'money was loaned by the executors of Samuel Schindel in pursuance of a power conferred upon them by his will, and by the terms of the will the mortgagor himself, was entitled to the annual interest' on the mortgage debt during his life. The mortgages provided only for the payment of the mortgage debt upon the death of the mortgagor, and the property being sold subject to the liens thus created, a question arose as to whether a purchaser would be obliged to pay the annual interest on said mortgages during the life of Samuel E Schindel, the cestui que trust.\\nIt was known both to the trustees and the purchasers before the day of sale, that a doubt existed in regard to this question, and affecting as it did the value of the property, it was the duty of the trustees before making the sale, to have submitted the matter to the Court for its determination. If, however, this was not done, and the question was brought to the attention of the Court before the final ratification of the sale, it was eminently proper and the duty of the Court to have decided it at that time, in order to prevent further litigation between the parties. The Court through its agents had offered the property for sale subject to certain mortgage liens ; the mortgagees were parties to the proceedings, and if a question arose as to the nature and extent of such liens, it would be contrary to sound policy for a Court of Equity, having jurisdiction of the subject-matter and the parties, to impose upon them the costs and trouble of a separate and independent suit.\\nIf so, we come to the question as to the proper construction of these mortgages. It was argued they did not provide for the payment of interest on the mortgage debt during the life-time of Samuel E. Schindel; but the provisions of the will of the father by which the executors were directed to invest the money so that the said Samuel should receive the annual interest thereon for life, are set out at length upon the face of the mortgages \\u2014thus plainly showing that the object of the executors in making the loan, was to carryout the trust thus reposed in them. The mortgagor himself being entitled to the interest for life, it was altogether unnecessary to require him to pay it to the mortgagees ; and the mortgages therefore provided that he should appropriate it to his own use. If, however, his ownership in the property ceased, and it was sold under a decree at the instance of his creditors, we are of opinion that the trust created by the will, and set out at length on the face of the mortgages, attached to the property in the hands of the purchaser. Any other construction, would defeat the purpose of the trust, which it was the intention of the .executors in taking the mortgages to preserve.\\n(Decided 19th January, 1876.)\\nThe mere fact that there is no provision in express terms for the payment of interest during the life of the cestui que trust in the event of a sale of the property, does not affect the question, provided it is fairly inferrible from the face of the mortgages, that such was the intention of the parties.\\nThe rulings of the Court below, and the final order of ratification of the sale of the mortgaged premises, must be reversed, to the end that an order of ratification may be passed, in which C. B, Boyle, purchaser, shall be directed to pay to Samuel E. Schindel during his life, the annual interest on the mortgages to R. H. Alvey and George Schindel, and subject to the liens of which the property was decreed to be sold ; and upon the death of the said Samuel E. to pay the principal of said mortgage debt to .the mortgagees.\\nRulings and order reversed, and cause remanded.\"}"
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+"{\"id\": \"1854119\", \"name\": \"Oscar Trail, use of Kemp and Buckey, use of Jacob M. Buckey, vs. John B. Snouffer\", \"name_abbreviation\": \"Trail ex rel. Kemp & Buckey v. Snouffer\", \"decision_date\": \"1854-12\", \"docket_number\": \"\", \"first_page\": \"308\", \"last_page\": \"319\", \"citations\": \"6 Md. 308\", \"volume\": \"6\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:35:22.366392+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Le Grand, C. J., Eccleston and Tuck, J.\", \"parties\": \"Oscar Trail, use of Kemp and Buckey, use of Jacob M. Buckey, vs. John B. Snouffer.\", \"head_matter\": \"Oscar Trail, use of Kemp and Buckey, use of Jacob M. Buckey, vs. John B. Snouffer.\\nA judgment of fiat upon a scire facias issued in the name of the legal plaintiff for the use of the equitable plaintiffs is valid, notwithstanding the legal plaintiff was dead at the time the fiat was entered.\\nBut where nfi. fa. on such judgment is issued in the name of the legal plaintiff, the objection may be taken on motion to quash the writ on its return, that such plaintiff was dead when it issued, and the writ will be quashed; sucb objection is made at the proper time and in the proper mode.\\nAfi. fa. cannot be enforced in the name of a deceased plaintiff, if the fact of his death at the date of the writ is relied upon against its validity upon its return.\\nAt common law a judgment cannot be obtained where either party has died if the objection be taken in due time, but if not then made, the judgment concludes all persons from denying the fact of the party\\u2019s existence at the time of its .entry.\\nWhere a new party is to be changed or benefitted after judgment, a scire facias must issue, but in such case also the objection must be made in due time.\\nThe act of 1852, ch. 180, sec. 4, operates per se upon all writs defective in the particulars therein indicated, and makes them valid, subject however to the rights of creditors and purchasers, who became such prior to its passage.\\nThis act affects all parties, except prior creditors and purchasers, with notice of the rights of parties claiming under the defective writs, as fully as if they claimed under process valid at the time of its passage,\\nA trustee of an insolvent claiming under the deed in insolvency, executed after the passage of this act, is not protected by the proviso thereto, even if he be considered a purchaser within its terms.\\nUnder the insolvent system of this State, as it stood at the adoption of the present constitution, arrest for debt was not necessary to entitle a person to its benefits, and hence that system was not abolished by that clause of the constitution which declares, there shall be no imprisonment for debt.\\nAppeal from the Circuit Court for Frederick county.\\nThis was an appeal taken by the appellant, Jacob M. Buckey, from an order of the court below (Nelson, J.,) overruling a motion made by him to amend a writ of fieri facias, and also from the judgment of said court making absolute a rule obtained by the insolvent trustee of the appellee to quash said writ. The facts of the case are fully slated in the opinion of this court.\\nThe cause was argued before Le Grand, C. J., Eccleston and Tuck, J.\\nJoseph M. Palmer for the appellant.\\n1st. It is insisted that the circuit court, erred in discharging the rule of the appellant, and refusing to direct the mistake or misprision of the clerk in issuing the ji.fa. to be corrected and the writ amended. The mistake occurred in this way: An act of the legislature of 1852, ch. 13, changing the terms of the circuit court for Frederick county from the first to the second Monday in November, was passed on the 16th of February 1852, but this law not having been published, the clerk was ignorant of its existence at the time he issued the writ, 9th of April 1852, and he therefore made it returnable on the first Monday of November, as usual. But this error, (if the court below had not the power to correct it, which we insist they had,) is clearly cured by the express terms of the act of 1852, ch. 180, sec. 4, passed on the 25th of May 1852, unless the insolvent\\u2019s trustee can be called a \\u201cbonafide purchaser or creditor\\u201d under the proviso to that section. Snouffer did not apply for the benefit of the insolvent laws until the 3rd of August 1852, after the passage of the act of 1852, ch. 180, and after the fi.fa. had been levied upon his property. Every body was bound to take notice of this act, and therefore it cannot be said that this trustee was a purchaser bona fide, having been appointed after its passage. As to the construction of this statute, see Dwarris on Statutes, 716. There is no evidence in the record to show that at the time of the passage of the act of 1852, ch. 180, the said insolvent had any bona fide creditors except the appellant, and if there were any such creditors at that time, they must show affirmatively that they are within the true meaning of the proviso to entitle them to its benefit. That an appeal will lie from the order refusing to direct the amendment, see 1 H. & G., 404, Union Bank vs. Ridgely. 1 Gill, 52, Gordon vs. Downey. 11 Wheat., 302, Chirac vs. Reinicker.\\n2nd. The court below manifestly erred in deciding that the writ of Ji.fa. should be quashed and vacated by reason of the death of Trail, the legal plaintiff, who died after the rendition of the original judgment, and before the issuing of the sci.fa. and the judgment o\\u00ed fiat. The court below decided that the judgment fiat was a good, legal and valid judgment, and free from error, and from this ruling there was no appeal taken. Now the death of Trail should have been pleaded in abatement to the scire facias, and that not having been done, the objection or fact of death cannot be made available to Snouffer afterwards in any possible way. 1 Comyn's Digest, 65, Abatement, (F. 2.) 16 Johns., 537, 579, Jackson vs. Robins. 1 Chitty's Pl., 441. 6 Randolph, 110, Garrand vs. Henry. Hobart's Rep., 283, Hannor vs. Mase, and note 1.\\n3rd. But Archibold T. Snouffer has no standing in court to make any objection to this judgment or writ, because he is not the legal trustee of the insolvent petitioner, John B. Snouffer. All the proceedings in the case of this application purporting to be made under the provisions of the insolvent laws of 1805, ch. 110, and the supplements thereto, are coram nonjudice and void, because the whole insolvent system of 1805 and its supplements was abolished by virtue of the provision in the present constitution of the State, declaring that there \\u201cshall be no imprisonment for debt.\\u201d The first step under these old insolvent laws upon the part of the applicant, is to show' that he is in custody or actually under arest for debt, and the writ of ca. sa. having been abolished there can now be no such arrest, and hence these laws are now abrogated and annulled.\\nWilliam M. Merrick for the appellee.\\n1st. In refusing leave to amend thefi.fa. the court was acting within the sphere of its discretionary pow'er, and no appeal will lie from such ruling, and hence this appeal should be dismissed. 6 H. & J., 151, Hawkins vs. Jackson. 7 H. & J., 454, Carroll vs. Barber. 2 H. & G., 81, Wall vs. Wall. 7 Gill, 237, Crockett vs. Parke. 2 Lord Raymond, 1061, Reg. vs. Tuchin. 3 Greenlf's Rep., 183, Wyman vs. Dorr. Ibid., 219, Clapp vs. Balch. 9 Wheat., 576, Walden vs. Craig. 11 Do., 280, Chirac vs. Reinicker. 3 Pet., 12, United States vs. Buford.\\n2nd. The defect in the writ is not cured by the act of 1852, ch. 180. Under the act of 1804, ch. 55, the writ must be returned on the first day of the term, and a ji. fa. returnable in vacation is void, and void process cannot be corrected. 3 G. & J., 385, Turner vs. Walker. 2 Johns., 190, Bunn vs. Thomas. 4 Do., 309, Burk vs. Barnard. 1 H. & J., 8, West vs. Hughes. Now by the act of 1852, ch. 180, the courts have not power to amend a void writ, but it says that executions shall be ruled valid notwithstanding mistakes in the return day. This implies that the act does not per se make the writ good, but that there must be a rule laid in each case by the court to show cause -why the writ should not be ruled valid. But the proviso to this act is not confined to creditors or purchasers antecedent to the passage of the law. The law in England and in all the States is, that in the exercise of their discretionary power over amendments courts never allow them to be made to the detriment of rights intermediately, acquired, and the highest equity being the fair and equal distribution of assets among creditors, they will never grant an amendment which will operate to disturb that equality of distribution by assignees in bankruptcy or trustees in insol-, vency, but leave the party to the consequence of any inadvertence. 6 G. & J., 217, State vs. Bank of Maryland. 14 Johns., 219, Bank of Newburgh vs. Seymour. 6 Term Rep., 10, note a. 8 Do., 153, Paris vs. Wilkinson. 3 Pick., 445, Putnam vs. Hall. 9 Do., 167, Emerson vs. Upton. 6 New Hamp., 459, Bowman vs. Stark. 8 Mass., 240, Williams vs. Brackett. 3 Greenlf's Rep., 260, Freeman vs. Paul. 7 Do., 146, Means vs. Osgood. 4 Maule & Selw., 329, Hunt vs. Pasman. These cases are a key to the interpretation of the act of 1852, ch. 380. The courts never allow an unmeritorious amendment. 4 G. & J., 381, State vs. Green.\\n3rd. The ji. fa. was properly quashed, because at the time it bore test, as well as at 1,'ne time it, issued, the nominal plaintiff was dead, and a new sci.fa. was therefore necessary,- unless the assignee had caused the execution to issue in his own name, as he might have done under the acts of 1829, ch. 51, and 1830, ch. 165, sec. 2. Having used the name of the technical plaintiff he must take the consequence of not making his representative a party. The judgment of scire facias, bearing even date with test of execution, does not estop us from showing his death before test day. 3 G. & J., 366, Hanson vs. Barnes. 2 Wms. Saunders, 72. 1 Wils., 302, Earl vs. Brown. 2 Do., 372, Hewitt vs. Mantell. 2 Ld. Raymond, 1280, Colebeck vs. Peck. 1 Term Rep., 463, Kretchman vs. Beyer. The fiction of relation will not be accumulated upon the fiction of estoppel.\\nThe objection that Snouffer\\u2019s trustee has no standing in couit because the insolvent laws were abolished by the new constitution, was not made in the court below, and the appellant is precluded by the act of 1825, ch. 117, from making it here. But if the question-is open, we insist that these laws are not abrogated by the constitution.\", \"word_count\": \"4687\", \"char_count\": \"26112\", \"text\": \"Tuck, J.,\\ndelivered the-opinion of this court.\\nThe facts on which this appeal comes before us,-are these:Oscar Trail obtained a judgment, in 1845, against the appellee, which was entered for the-use of Kemp and Buekey, and afafterwards for the use of Jacob M. Buekey. Trail died in-1848, after which a writ of sci. fa. was issued, in his name,for the use of the equitable plaintiffs, and no appearance having been entered by the defendant, a fiat was awarded in-February 1852. A writ of fieri facias was issued on the 9th-April 1852, in the name of the legal plaintiff,-for the use of the other parties, as the fiat had been- rendered; but this writ was made returnable to the first Monday, of November, when the sittings of the court commenced on the second- Monday of that month. In August 1852, after- this fi. fa. had been-levied on the defendant's property, he applied for the benefit of the insolvent.laws,-and-Archibold-T-Snouffer was appointed' his trustee, to whom a deed was executed, and the party discharged. On the return of this writ of fi. fa., the trustee filed- a \\u00a1notion to quash, on the following suggestions: \\u2014 1st. That She fi. fa. is tested on n day when Trail, the legal plaintiff, was-dead. 2nd. That the writ issued on a day when Trail was dead. 3rd. That the writ is made returnable on the first Monday in November, when the court was not in session. 4th. Is the same, substantially', with the third. 5th. That the fiat was obtained by surprise, and should be stricken out. Accompanying this motion, he filed a record of the proceedings in insolvency.\\nSubsequently, in the progress of the cause, the cestui que use, Jacob M. Buckey, appeared and moved for leave to amend the writ of fi. fa. by inserting the second Monday, instead of the first Monday in November, on the ground, that it was a mistake of the clerk.\\nThe court discharged the motion to strike out the fiat, and, overruling the motion to amend the writ, made absolute the rule to quash, it. From these Last, two rulings, the, cestui que use appealed.\\nIt is conceded, that the judgment on the sci. fa. is to be treated as valid, notwithstanding the legal plaintiff was dead at the time thc fiat was entered. Hawkins vs. Bowie, 9 Gill & Johns., 428. But one of the questions before us is, as to the validity of the writ of fi. fa. issued on that judgment.\\nIt is unnecessary to inquire, whether the error as to the return day can be amended, because we consider that defect cured by the act of 1852, ch. 180-, sec. 4, which provides: \\\"That all writs of execution which have been issued out of any of the courts of this State, between the first Wednesday of November 1851, and the date of the passage of this act,, shall be deemed regular, and ruled valid, notwithstanding errors or mistakes in the test day, in the return day, in the name of the proper judge, or in the style, of the proper court;. provided, however, that nothing in this section contained shall affect or in any wise impair the rights of a bona fide purchaser or creditor.\\\" This act took effect from the 25th of May 1852,. the date of its passage.\\nWe do not agree with the counsel for the appellee, that a. special rule must be laid in each case to give effect to this act, It operates, per se, upon all process defective in the particulars there indicated; and, in all contests relating to such writs, the courts must deal with them as if no such errors had occurred, subject, however, to the rights of creditors and purchasers, who may have become such before the passage of the act. As to all other persons, the act affects them with notice of the rights of others, as fully as if they claimed under process, valid at the time of the passage of the act. In this view of the case the proviso does not protect the appellee, claiming under the deed in insolvency, executed after the passage of the act, even if he be considered a purchaser within its terms;\\nBut the appellee's counsel has presented another objection, which we think fatal to the writ of fi. fa. The cases referred to by the appellants' counsel, do not warrant the conclusion, that the fact of the plaintiff's death, before judgment, can never be afterwards inquired into for any purpose. It is true the judgment cannot be impeached on that ground, but it does not follow, that, in all time to come, the dead plaintiff is to be considered as alive. Upon technical grounds, the law treats the judgment as if the party was alive at the time it was rendered, and died afterwards. If it were otherwise, and the judgment was against a defendant who had died before the judgment, the plaintiff would be entitled to his execution against the property of a dead man, and, if imprisonment for debt had not been abolished, even against his person; because, if the law treats the judgment as having been obtained against a party in esse, and if, as now contended, th.e fact of his death can never be alleged for any purpose, there would be no more reason for denying the validity of the process in the one case than in the other. And, though the anomaly is not likely to occur,, a proceeding on final process might be carried on in th.e names-of parties to the judgment, both of them being dead. It is well-settled, that at common law, a judgment cannot be obtained where either party has died, if the objection be taken in due time; but if not then made, the judgment concludes all persons from denying the fact of the party's existence at the time of its entry. There are exceptions by statute; (Foster's Law of Sci. Fa., ch. 5,) and by our acts of Assembly in reference to the death of parlies in this court. It is equally clear, that where a new party is to be charged or benefitted, after judgment, a sci. fa. must issue. Hanson vs. Barnes, 3 G. & J., 359. But, as in the former case, the objection must be raised in due season. The cases referred to by the appellants' counsel have no application to the point in question. They are merely illustrations of the general doctrine, that the death of the plaintiff must be availed of before the judgment, by plea in abatement. How can that plea be used here? The fact of the party's death can never be alleged to impeach the judgment; but irregularity in reference to writs of fi, fa. can be shown on motion. The objection goes, only, to the fact that the plaintiff was dead when the writ issued; not denying that, in contemplation of law, he was alive when the judgment was rendered. Here the objection is presented at the proper time, and in the proper mode. The question was decided in Earl vs. Brown, 1 Wils., 302, where a fi. fa. was quashed, on motion, because the plaintiff was dead at, the time of the judgment, and it had not been revived by sci. fa. See also Underhill vs. Devereux, 2 Saund. Rep., 72, and notes; and Foster's Sci. Fa., ch. 5, (73 Law Lib., 174,) where the subject is fully treated. It is certainly giving to the judgment sufficient efficacy, when the law allows it to be enforced as if the plaintiff had been alive on (he day of its rendition, but died afterwards. The equitable plaintiff had his remedy, in his own name, under our acts of Assembly, but we can find no case in which a fi. fa. has been enforced in the name of a deceased plaintiff, where the fact of his death, at the date of the writ, has been relied upon against its validity, at the return of the process.\\nWe do not understand that the clerk committed the error of issuing the fi,. fa. in the name of the legal plaintiff. Without deciding whether the writ was amendable, it is clear that if it was not his misprision the party was not entitled to the amendment. For aught that appears to us the writ was issued according to the direction of the party. Nor do we express any opinion on the right of appeal from orders granting or refusing such amendments. On this subject see Crockett vs. Parke, 7 Gill, 237. Shipley's Appeal, 4 Md. Rep., 493.\\nThe appellee's right to avail himself of objections to the proceedings below, depends upon the validity of his appointment as trustee under the insolvent laws, which system, it is said, on the part of the appellant, was abrogated by the article of the present constitution abolishing imprisonment for debt. The point then, on which this part of the case turns is, whether it was necessary, under the insolvent laws, for the petitioner to show that he was under arrest, in order to entitle himself to their protection; for if that system applied only to those who were in that predicament, it, cannot be said to exist when arrest for debt is prohibited by the constitution.\\nThe act of 1805, ch. 110, is not restricted in terms to persons under arrest. The preamble does not assert that they were in confinement, but merely that they were unable wholly to pay their debts. Several of its sections indicate that the act was designed to comprehend all persons who might apply, whether under arrest and confinement, or not. The second authorises any of the persons named in the act to apply to the county court, or \\\"to any judge\\\" thereof incase of his actual confinement.\\\" The third relates to the residence of the applicant, and the assent of his creditors, but there is a proviso which dispenses with such assent, when the party was in actual confinement. Sections 11 and 13, also prescribed what was necessary, or might be done in case of the imprisonment of the petitioner, and among other things, bond was required for his personal appearance, which is not made necessary in any other condition of the party. The implication that persons not in confinement might have applied under these laws, is also supported by the acts of 1807, ch. 150, and 1808, ch. 71, which make special provision for debtors in prison at the time of their application. The twenty-first section of the original act, authorized the courts to extend .the benefits of the act \\\"to all such persons as might apply,\\\" before January 1810, which provision was further extended by the act of 1S09, ch. 179, to all applicants, without limitation of the continuance of the act. The condition of the party did not affect his right to apply, further than by allowing the petitioner, in case of actual confinement, to be presented to a judge out of court. The jurisdiction of the judges of the orphans courts, was by the act of 1817, ch. 183, confined to the release of imprisoned debtors; but by the act of 1827, ch. 70, application might, be made to die county courts, or the judges thereof, or of the orphans courts, by any person having resided in the State two years. Residence is the only condition mentioned in tins act, no reference being made to the arrest or imprisonment of the party.\\nWe believe it to have been the common, though not universal, impression of the bar, that these laws applied only to debtors under arrest. This may have originated from tile fact that few, if any voluntary applications were made; the discharges granted having been to persons who were compelled to avail themselves of the benefit of the acts; and the question having never been presented as a matter of controversy, had not received a thorough examination. A contrary opinion, however, we know to have been entertained by members of high standing in the profession. But the act of 1830, ch. 130, appears to have thrown doubt on the question, or rather to have obscured what was not quite clear before, by providing that it should not be necessary for the applicant \\\"to produce any evidence of iris confinement in jail.\\\" This act does imply, that such evidence was necessary before that time, but it is not expressly required in any of the previous acts. They require the court or judge to be satisfied of the party's residence, and at one time, of the assent of his creditors; but nothing is said about evidence of his arrest or confinement. If the system was designed to embrace only tir\\u00f3se who might be in that predicament, we presume such proof would also have been demanded by the law. We understand that before the act of 1830, the construction of these iaws was not uniform in the several judicial districts, nor indeed, since its passage. In some, that act was taken to be a legislative construction, that under the previous acts, actual confinement was indispensable, and that arrest was necessary afterwards; while in others, it was construed as dispensing altogether with arrest as well as confinement, even if before the act arrest was necessary. The consequence was, that in the latter districts dis charges were granted to persons who were not under arrest at the time of their application, and, probably, valuable estates are now held under these proceedings.\\nThis view of the act of 1830, is sustained, as we think, by the case of Bowie vs. Jones, 1 Gill, 208. It appears by the proceedings on that appeal, that the validity of Bowie's discharge was contested, because there was no proof of his confinement, which, it was said, was necessary to give jurisdiction to the court granting the discharge; to which it was answered f that since the act of 1830, arrest and confinement were not requisite. There was no evidence of the party's arrest. Now if the court had supposed, that in order to give jurisdiction* arrest was necessary, after actual confinement had been dispensed with, they would not have affirmed the validity of proceedings in which the fact of arrest did not appear. The court said, \\\"under the act of 1805, ch. 110, the presentation of a petition by a party in confinement, was alone necessaiy to give jurisdiction, and since the proof of confinement has been dispensed with by the act of 1830, ch. 130, the jurisdiction of the county courts attaches by the presentation of a petition, such as is prescribed by the acts in relation to insolvent debtors.\\\" No form of petition is prescribed by the acts; but the party in his petition must offer to surrender his property, and accompany the same with a list of his creditors, debtors and property, and the courts are authorized to grant discharges on being satisfied of his residence, and at one time, of the assent of his creditors as provided in the acts. We think that the judgment in Bowie vs. Jones, can be sustained, only on the supposition that the Court of Appeals considered arrest as well as confinement, to have been dispensed with by the act of 1830. For if arrest was indispensable there was no such proof to bring the application within the jurisdiction of the court; yet the discharge was sustained, as within their jurisdiction.\\nThese acts are to be construed together, with reference to their intent and policy. Their design was to relieve those, who, \\\"by reason of misfortunes, were unable to pay their debts, and were willing to surrender (heir property for the use of their creditors.\\\" 1805, ch. 110. The system has been modified from time to time, in amelioration of fhe condition of the debtor -class, until, finally, imprisonment for debt has been altogether abolished. With the expediency or policy of such a system of voluutary bankruptcy, we have no concern. It is our duty to expound the law, not to declare what it should be. The legislation of half a century, embracing many acts of Assembly, some of which are not easily comprehended, may be open to cither construction when taken in detached portions, but when considered as a whole, we think, it leads to the conclusion that arrest for debt was not necessary, at the adoption of the present constitution, to entitle a person to be discharged under the insolvent laws of the State. The question is not free from difficulty; and in arriving at this conclusion, we have not overlooked the consideration, entitled to much weight iu doubtful cases, that by one construction titles ac -quired under proceedings, where the debtor had not been ar. \\u00a1rested, may fee sustained, whereas by a contrary,interpretation they might be disturbed. Ram on Judgments, 9 Law Lab. ch. 6 and 14.\\nBelieving that the insolvent laws were not abrogated by the constitution, it follows that, the trustee of John B. Snouffer, bad a standing! n court to object to the validity of the ji. fa. issued on the judgment set out in the record, and that the ruling of the court below must be affirmed.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1860716\", \"name\": \"Cumberland Coal and Iron Company and Jonathan W. Magruder, vs. Margaret Tilghman\", \"name_abbreviation\": \"Cumberland Coal & Iron Co. v. Tilghman\", \"decision_date\": \"1859-02-18\", \"docket_number\": \"\", \"first_page\": \"74\", \"last_page\": \"85\", \"citations\": \"13 Md. 74\", \"volume\": \"13\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:29:15.127163+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Le Grand, C. J., Tuck and Bartol, J.\", \"parties\": \"Cumberland Coal and Iron Company and Jonathan W. Magruder, vs. Margaret Tilghman.\", \"head_matter\": \"Cumberland Coal and Iron Company and Jonathan W. Magruder, vs. Margaret Tilghman.\\nIn Maryland the action of replevin is most generally resorted to, for the purpose of trying the right of possession at the\\u2019time the writ issued, and not to determine necessarily the absolute title to the property for all time.\\nWhoever is entitled to the possession at the time the writ issued, may maintain or defeat the action of replevin, and his title to damages must be confined to the extent of the interference with that possession.\\nIn an action of replevin, which was tried on issues to the pleas of non cepit and property in the defendant, the verdict and judgment on both issues were in favor of the defendant, who then brought suit on the replevin bond for damages. Held:\\n1st. That the defendant, in the suit on the bond, could not show, in mitigation of damages, that the title to the property was in himself, for this was decided in the replevin suit.\\n2nd. But he could show that, although the defendant in the replevin suit had title to the property at the time the judgment was rendered in his favor, yet that title was but of short duration, and terminated by contract in a short time after that judgment.\\nIn an action for damages on a replevin bond, it was u\\u00e9nitted, that on the trial of the replevin suit, the plaintiff offered evidence to show title in himself, and the defendant offered evidence of title in himself, and that the verdict was found in favor of the defendant, on the issue joined. Held:\\n1st. That this admission relieves the plaintiff in the action on the bond, from either pleading the record in the replevin suit, specially as an estoppel, or the jury from finding its existence on the testimony, for what is admitted need not be proved.\\n2nd. The same word, \\u201ctitle,\\u201d having been used both in this admission, and in the plaintiff's offer of evidence in the suit on the bond, it must be understood as importing the same thing, and whatever title was designed to he proved in the suit on the bond, must be considered as settled by the replevin suit.\\nWhere the court below had granted an instruction, in regard to the standard of damages, it is no error for it to refuse another instruction, setting up another standard inconsistent with that established by the prayer already granted.\\nAppeal from the Circuit Court for Allegany county.\\nThis action was brought on the 11th of August 1857, by the appellee against the appellants upon a replevin bond.\\nOn the 17th of July 1855, the Cumberland Coal and Iron Company sued out a writ of replevin, and gave the usual bond, with Jonathan W. Magruder as security on it, to Margaret Tilghman. In this replevin suit, the defendant, Margaret Tilghman, pleaded non cepit and property in herself, and the plaintiff, the Cumberland Coal and Iron Company, joined issue on the first plea, and to the second replied property in itself. At the trial both issues were found for the defendant, and judgment for the return of the property and for costs, was rendered on the 15th of April 1857. The property taken was a canal boat called \\u201cThe Anna Woodward,\\u201d which was replevied and delivered to the company on the day the writ of replevin was issued, and has remained in the company\\u2019s possession to the time of the present suit.\\nIn the present action the plaintiff, Margaret Tilghman, declared on the replevin bond above mentioned, assigning as breaches thereof, \\u201cthat the said Cumberland Coal and Iron Company, did not prosecute the said writ of replevin with effect, against the plaintiff, and did not well and truly return and deliver unto the plaintiff the said property so replevied, and did not pay to the plaintiff the damages caused by the taking, use and detention of said canal boat from the plaintiff, and hath not paid the said costs.\\u201d The defendants pleaded, 1st, general performance; 2nd, \\u201c(hat the plaintiff from the tiraje of making of the writing obligatory aforesaid, hitherto hath not been damnified in respect of or by reason of any matter, cause or thing, in the condition of the writing obligatory aforesaid mentioned.\\u201d On these pleas issues were joined.\\nlsi Exception. The plaintiff to support the issue on her part joined, offered in evidence the replevin bond, the execution of which was admitted; and the record and docket entries in the replevin suit mentioned in the condition of the bond, and also gave evidence of the value of the boat at the time of the replevin. It was then admitted, that on the trial of said replevin suit, the plaintiff offered evidence to shoio title in itself, and the defendant offered evidence of title in herself, and that the verdict was found in favor of the defendant on the issues joined. The defendants then, to support the issues on their part joined, and for the .purpose only of mitigating the damages in this case, offered to prove by competent and proper evidence, that at the time said boat was replevied the .title thereto was in the company, and so continued in said company to the present time. To the admissibility of which evidence, the plaintiff, by her counsel, objected, upon the ground that the company was precluded by the verdict and judgment in the replevin suit, from showing any of the facts above offered to be proved; which objection the court (Perry, J.,) sustained, and to this ruling the defendants excepted.\\n2nd Exception. The plaintiff, in addition to the evidence offered in the first exception, offered in evidence the depositions of Atkinson and Sprigg, which were used in the replevin suit, and proved by Robert S. McKaig, that he had testified in the replevin suit, that, in March 1854, he purchased the boat for Margaret Tilghman; that after the boat had been delivered to him by Sprigg, under the contract, he understood that the Cumberland Coal and Iron Company had a claim on the boat, and he and Sprigg called on Henderson the company\\u2019s agent and had a conversation with him on the subject; that Henderson claimed there was still due by Sprigg to the company, on the sale of the boat to Sprigg by the company, $124 or $134; that Sprigg denied he owed any thing on the boat, but it was agreed, at that conversation, that Margaret Tilghman should keep the boat, and that witness, as her agent, should pay the company $100, part, of the $124; and that Sprigg should pay the balance of the $124 out of the earnings of another boat, and this arrangement was made to discharge the boat for Miss Tilghman, who was to hold the boat as her own; and that witness paid the $100, by leaving that much of the freight of the first load of the boat thereafter in the hands of the company; and that Sprigg so paid the $24 to the company.\\nThe defendants then offered to prove by Henderson and other competent witnesses, that the boat before and in the spring of 1854, was the property of the Cumberland Coal and Iron Company; and that in the spring of 1853 the company had made a contract with Sprigg, by which it was agreed he should take this boat and two others and run them on the canal in carrying coal for the company, and that the company, to pay for them, was to retain in its hands twenty cents per ton out of the freight money, as purchase money paid on the boats, and that the boats were to remain the property of the company till paid for; that Sprigg had a right by this contract to apply the twenty cents per ton earned by all the boats, to the payment of one, due regard being had to the condition of the others, and that the boat in question had been taken by Sprigg under this contract at $936,67, which was the principal sum, and that the twenty cents per ton were to be credited as earned, charging interest on the price of the boat from credit to credit until paid for in full, and that this boat was not paid for in the spring of 1854, and at the time of the alleged sale to McKaig; that Henderson never assented to a sale of the boat to McKaig by Sprigg, and that in a conversation had with McKaig and Sprigg, in the spring of 1854, at the place stated by them, he, Henderson, did not assent to such sale, but on the contrary communicated to McKaig the contract with Sprigg, and that the boat was not paid for, and that he would not consent to such sale to McKaig as the agent of the plaintiff; and also to prove that the amount due on the boat in the spring of 1854, at the time of said alleged sale, was. after giving all credits to which Sprigg was entitled under his contract, $347,87; and that no such sum of $124 or $134, was ever agreed to or stated by Henderson, or in his presence, with McKaig or Sprigg; and that no such sum of $100, or any thing like it, was paid, nor any such sum of $24 paid by Sprigg. To the admissibility of which evidence and every part thereof, the plaintiff, by her counsel, objected, and stated as her objection, that the said evidence was inadmissible upon the ground, that the verdict and judgment in the replevin suit between the present plaintiff and one of the present defendants, the company, estopped the defendants from showing, even in this action, for any purpose, that the title to said property was in the company at the time of said trial, or give such evidence in mitigation of damages; which objection to said evidence and to every part thereof the court sustained, and refused to permit the defendants to offer said evidence or any part thereof to the jury, and to this ruling the defendants excepted.\\n. 3rd Exception. The defendants asked the court to instruct the jury, that if they find from the evidence that the company replevied the boat from the plaintiff, on the 17th of July 1855, and that a judgment on verdict in said replevin suit de retorno habendo was rendered, on the 14th of April 1857, in favor of the plaintiff, and that the company, upon the rendition of this judgment, returned the boat to the plaintiff, and if thejr further find, that the boat was in possession of the company from the time she was replevied until she was returned as aforesaid, and was used by the company in boating coal from Cumberland to Alexandria, and that she was built for that purpose, and would have been used by the plaintiff, in the same manner if she had not been replevied; and if they further find that it was more beneficial so to use the boat than to let her remain idle, and that the boat, even if she had remained in possession of the plaintiff during said period, would have deteriorated by natural decay and advance in age, over and above all other deterioration, that then the rule of damages in this case should be, the value of the boat at the time said replevin was executed, with the interest thereon from that time, reduced by the amount of the value of the said boat when returned to the plaintiff, in so far as said last value was produced by other causes than natural decay and advance in age; and that the jury in estimating the difference between the value of the boat when replevied, and when returned, shall not take into their consideration the deterioration caused by such natural decay or advance in age, as would have accrued to said boat under all circumstances, and the costs of the replevin suit. This instruction the court refused to give, and to this ruling the defendants excepted.\\nIn an exception, which was taken by the plaintiff, the court had, at the instance of the defendants, instructed the jury, \\u201cthat the rule of damages in this suit, is the value of said boat at the time said replevin was executed, with the interest thereon from that time, reduced by the amount of the value of said boat when returned to the plaintiff, with the cost of the replevin suit,\\u201d provided they found that the boat was replevied, and the judgment in the replevin suit, and the return of the boat to the plaintiff, as stated in the preceding prayer.\\nThe verdict was in favor of the plaintiff for $836,78, damages and costs, and from the judgment thereon the defendants appealed.\\nThe cause was argued before Le Grand, C. J., Tuck and Bartol, J.\\nGeorge A. Thruston and George A. Pearre, for the appellants:\\n1st. That ordinarily, at least in an action upon a replevin bond, the defendants may show title in the defendant who replevied the property, in mitigation of damages. The object of the replevin bond is indemnity to the defendant, and all questions arising upon it should be determined by a due regard to that consideration. 6 G. & J., 453, Doogan vs. Tyson, et al. 3 G. & J., 247, Belt vs. Worthington. The damages recoverable, are only such as the defendant in replevin has personally suffered. 2 Gill, 216, Walter vs. Warfield. It is conceded, that if there had been no replication in the replevin suit, of property in the plaintiff, the evidence would have been admissible for the purpose for which it was offered. But it is contended, that a verdict on this plea found for defendant, negatives title in the plaintiff in replevin, and operates as an estoppel against his setting up title in himself in a suit on the replevin bond. Even if it be admitted that this principle is correct, yet the facts necessary to constitute the estoppel, are to be found by the jury when offered in evidence. What facts, even upon this theory, was it necessary for the jury to find? The verity of every thing contained in the record of the replevin suit offered in evidence, viz., that ther ewas a replevin suit, its subject, matter, the pleadings, verdict, judgment, and the evidence offered in the case, if it assisted in creating the estoppel. When the facts are found by the jury, the court pronounces their effect or rather instructs the jury, if they believe such facts they constitute an estoppel. Now the court, in rejecting this testimony in the first exception, assumes the existence of the estoppel, by undertaking to decide for itself without the intervention of the jury, the existence of all the facts necessary to constitute the estoppel. The evidence is rejected because of the estoppel, and yet the very facts which were to create the estoppel, were offered in evidence to the jury, and were yet to be found by them.\\n2nd. The testimony offered in the first exception, independent of the above question, was admissible,- because a verdict and judgment for the defendant in replevin, upon issue joined upon a replication by the plaintiff, of property in himself, does not settle the question of title against the plaintiff. Under such issue evidence of general ownership, unaccompanied by right to immediate possession, would be insufficient to obtain a verdict for the plaintiff. The mere right of bailee of the plaintiff would defeat the plaintiff. Right of possession alone will sustain, and want of it defeat the action. 1 H. & J., 147, Smith vs. Williamson. 6 H. & J., 471, Cullum vs. Bevans. There is no plea in replevin, that the defendant at the time of replevin was entitled to the possession, nor is there a replication that the plaintiff was entitled to possession. The plea of property in the defendant, or the replication of prop eity in the plaintiff, covers the whole. \\u201cProperty\\u201d in such plea or replication does not mean title necessarily. It more properly means right of possession, because title without the right <f possession will not sustain it, but right of possession without title will. The proof necessary in law to determine an issue, is the index of the meaning and extent of the issue; the substance of an issue is all that need be proved. 1 Greenlf. on Ev., secs. 56, 528. The substance of an issue in replevin, even upon the replication of property in the plaintiff, is the right of possession. It does not, therefore, appear from the record, that the title was in issue and decided in the replevin suit, and this is essential to constitute the estoppel. 11 G. & J., 173, 184, Garrett vs. Johnson. All that the record in the replevin suit is evidence of is, that the plaintiff at the time of the taking had not a right to the possession of the property. 15 Mass., 310, Gates vs. Gates. 4 Pick., 168, Wheeler vs. Train. 7 Blakf., 298, Wallace, et al., vs. Clark. Sedwick on Damages, 503. This question was left open by the Court of Appeals, in Belt vs. Worthington, 3 G. & J., 247, for there the plaintiff in replevin struck off his suit.\\n3rd. Under the first exception, we have endeavored to show that the evidence rejected was even admissible for the purpose of showing title in the plaintiff in the replevin suit, in mitigation of damages. The offer in the first exception is confined to proof of title in the plaintiff in replevin. In the second exception the proof is offered generally, and if admissible for any purpose was improperly rejected. The testimony was admissible to show that the defendant in replevin had no title. The issue in tire replevin case, was upon the replication of the plaintiff in replevin\\u2014property in it. (6 H. & J., 469, Cullum vs. Bevans.) If verdict is found on this issue for defendant, it only shows that the plaintiff had no property in it. It does not follow that the defendant had title. The defendant having possession at the time of replevin, (which is admitted by instituting the suit against him,) is prima facie owner, and entitled to maintain his possession until the plaintiff shows a better title.. The title of the defendant is not, therefore, involved. 6 H & J., 469, Cullum vs. Bevans. 11 G. & J., 80, Warfield vs. Walter. The title of the defendant not being involved, the evidence was admissible as tending to show a want of title in her. But again, the plea of non d.amnifi,catus was not a proper plea to this action, for though the object of a replevin bond is indemnity to the defendant, yet it is not by its terms and conditions technically a bond for indemnity, and the plea of non damnificatus was, therefore, bad, (7 Halsted, 1, Camp vs. Allen, et al.; 5 Johns., 42, Woods vs. Rowan, et al.;) but issue was joined on it and this lets in the proof.\\nThomas J. McKaig for the appellee argued:\\n1st. That as by the record in the replevin suit, the second issue in that action was \\u201cproPerty in the company,\\u201d and the appellants admit, that under that issue the company offered evidence of title in itself, and that the appellee offered evidence of title in- herself, and that the verdict was found in favor of the appellee, upon the issues joined on the trial of the replevin suit as offered in evidence, the appellants were estopped to re try that issue by offering to prove property in the company.\\n2nd. That the admission covers the record as offered in evidence, the trial, the evidence offered by both parties, the issues, and the verdict, and is consequently an admission that the title to the boat was directly in issue.\\n3rd. The whole scope and object, of the testimony in the second exception, was to prove property in the companju It was objected to and ruled out for the same reason that the testimony was refused in' the first exception. It tvas not offered to show a qualified property in Margaret Tilghman, but to show title in the company. No one denied that they could show that Margaret Tilghman had no property, or what property she had in the boat. 4 Dana, 251, Hanson vs. Buckner. 17 Verm., 419, Gray vs. Pingry. 19 Pick., 455, Sprague vs. Waite. 1 Story\\u2019s Rep., 474, Mallet vs. Foxcroft. 12 Verm., 692, Isaacs vs. Clark. 1 Greenlf. on Ev., secs. 522, 528. 4 Phillip\\u2019s Ev., (Cowen & Hill\\u2019s Notes,) 20 to 25.\\n4th. The rule of damages asked for in the appellants\\u2019 prayer in the third exception is practically this: The jury will allow the company to run the boat and receive the profits, and charge the appellee with natural decay and subtract it from the original value of the boat. A new boat will last say six years \\u2014 at the end of that time natural decay has destroyed it; the appellee would have thus lost the whole value of her boat, save six per cent, for six years on its original cost.\\n5th. No question was raised at the trial, of the right of the company to show that Margaret Tilgliman had no property in the boat, or to show what property she had; on the contrary such right was distinctly conceded.\", \"word_count\": \"4515\", \"char_count\": \"25317\", \"text\": \"Le Grand, C. J.,\\ndelivered the opinion of this court.\\nThis is an action brought by the appellee against the appellants, on a replevin bond. The Cumberland Coal and iron Company, sued out a writ of replevin, to obtain the possession of a. canal boat which was claimed as her property byr the appellee. To the action she pleaded non cepit and property in herself, to which the plaintiff in the replevin replied, property in itself, and joined issue on the plea of non cepit. At the trial, the verdict, of the jury, and the judgment of the court, was in favor of the defendant, the present appellee, on both issues, and this action is brought by her to recover damages for her alleged injury.\\nThe question which was most frequently presented in the discussion to the mind of the court was \\u2014 what is the nature of the estoppel, if any, of a judgment for defendant in an action of replevin?\\nTo our minds this question is involved in no mystery, but on the contrary is perfectly plain, when we remember the nature of the action of replevin in the State of Maryland. In this State the action is most generally resorted to, for the purpose of trying the right of possession at the time of the issuing of the writ, and not to determine necessarily the absolute title io the property for all lime. And this being so, it follows, that if the plaintiff, at the time of the bringing of the suit, has the right to the possession, he must succeed; or, if he have it not that his action must be defeated. Whoever is entitled to the possession, whatever may be his title in other respects, may maintain or defeat the action of replevin. His right to success in the action of replevin depending entirely on his right to possession, in reason, it follows, that his title to damages must' be confined to the extent of the interference with that possession. If the right to the possession covers all time, or is limited to a determinate period, the damages will be accordingly graduated as the case may be.\\nIn the case now before this court, the effort on the part of the defendants was, to show, as alleged by them, in mitigation of damages, title in the Cumberland Coal and Iron Company. Now this they could not do, because that question was decided in the replevin suit. It was, however, competent to them to show, that although the defendant in the replevin suit had title to the possession of the boat at the time of the judgment rendered in her favor, yet, that title was of but short duration, and terminated by contract in a short time after that judgment. No such evidence was offered to the court below; that is to say, the evidence of title of the company refused by the circuit court, Was not confined to a period subsequent to the judgment, upon the ground, that at the time of replevin Miss Tilghman had only a limited interest in the boat, and that such was the finding of the jury; but included as well the Very time wherein the judgment was rendered against it. It was urged at the bar, that it was competent to the defendants to' offer evidence in this unrestricted form, in order that the jury might pass upon the facts constituting the estoppel. Whatever force under other circumstances would belong to the argument, none can attach to it in this case, and for the simple reason, that the fact which it is claimed ought to have been found by the jury was admitted. In the defendants first exception it is said, that \\\"it was then admitted, that on the trial of said replevin suit, the plaintiff offered evidence to show title in itself; and the defendant offered evidence of title in herself, and that the verdict was found in favor of defendant on the issue joined.\\\" This admission relieved the plaintiff in this action, from either pleading the record specially, or, the jury from finding its existence on the testimony. That which is admitted need not be proved.\\n(Decided February 18th, 1859.)\\nThe same word, \\\"title,\\\" which may mean an absolute interest or a qualified one, is used both in the agreement and in the offer of evidence contained in the exception, and must be understood as importing the same thing in both, and therefore, whatever title was designed to be proved in this, must be considered as having been settled in the other case.\\nThe evidence offered in the second exception does not show, nor could the jury properly infer from it, that at the time of the purchase by Miss Tilghman, either she or her agent, McKaig, was aware of the state of facts testified to by the witness Henderson. What he says he told Mr. McKaig, was communicated to the latter, after the sale was perfected and the boat delivered. Anything he might say after that, could not affect her title.\\nThe court did right in the rejection of the defendants' last prayer, in regard to the standard of damages. The court had previously given an instruction on this subject, in its character, much more liberal than the defendants in law bad a right to ask. Inasmuch as that instruction is not before us on this appeal, we decline the examination of the principle contained in it. To have given the instruction embraced in the last exception, would not only have been clearly erroneous, but, to give contradictory instructions on the same subject, a procedure wholly inadmissible.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1863805\", \"name\": \"Northern Central Railway Company vs. John Bastian\", \"name_abbreviation\": \"Northern Central Railway Co. v. Bastian\", \"decision_date\": \"1860-05-16\", \"docket_number\": \"\", \"first_page\": \"494\", \"last_page\": \"501\", \"citations\": \"15 Md. 494\", \"volume\": \"15\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:30:39.987816+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Lfe Grand, C. J., Tticis And Bartob, J.\", \"parties\": \"Northern Central Railway Company vs. John Bastian.\", \"head_matter\": \"Northern Central Railway Company vs. John Bastian.\\nA railroad company advertised a quantity of old iron rails for sale. The advertisement was signed by its secretary. A party, acting for the plaintiff, who was an iron-broker, called on the secretary in relation to the iron, and was referred to the acting president of the company, who, on being informed that the plaintiff was a broker, and would charge him (the acting president) one per cent, commission on the sale, assented to the charge. The plaintiff then went to the company\\u2019s office, had an interview with the acting president, disclosed the name of the party wishing to purchase, and informed him that he (the plaintiff) would charge him one per cent, commission, and a sale was subsequently effected through the agency of the plaintiff. In an action by the plaintiff against the company to recover these commissions \\u2014 Held :\\nThat these facts furnish evidence from which the jury might find that the acting president of the company was authorized to. make the contract for the commissions sued for.\\nA corporation can act only by its agents, and, in order to bind the corporation, the agency must appear, but this need not be shown by any^resolution or other written evidence, but may be implied from facts and circumstances.\\nThe acting president being empowered to sell the iron, it was competent for him to engage the services of the plaintiff, in finding a purchaser and effecting the sale. Such an act, in absence of proof to the contrary, was within the scope of his agency, as a reasonable and proper means of accomplishing the business entrusted to his charge.\\n\\u201e Appeal from the Court of Common Pleas.\\nThis action was brought by the appellee against the appellant on the 24th of December 1856, to recover the value of services alleged to have been rendered by the plaintiff to the defendant, as its agent and broker, in effecting the sale of a quantity of old railroad iron belonging- to the defendant. Plea, not indebted as alleged.\\n\\u25a0 Exception. After the evidence, which, for the purposes of this case, is sufficiently stated in the opinion of this court, was closed, the defendant offered four prayers, in substance as follow's:\\n1st. That there is no evidence, competent to go to the jury, to show that R. M. Magraw was authorized by the defendant to employ the plaintiff, or any one else, as a broker, to sell for the defendant die iron spoken of in the evidence, or that said Magraw was authorized by the defendant to pay, or promise to pay, the plaintiff, or any one else, any commission for the sale, or procuring the sale, of said iron, and, in the \\u25a0absence of any such evidence the plaintiff is not entitled to recover-.\\n2nd. That the plaintiff is not entitled to recover in this action, unless the jury shall find from the evidence that the defendant either employed the plaintiff to render the services for which this suit is brought, or promised to pay him for -them.\\n3rd. That though the jury may find that Mr. Magraw was -the acting president of the defendant at the time of the conversation between him and the witness Robbins, as testified to by the latter, and that this conversation took place as stated by this witness, yet the plaintiff is not entitled to recover, unless the jury shall also be satisfied, from the evidence, that the defendant authorized said Magraw to promise, or undertake for it, that it would pay to the plaintiff the compensation for which the suit is brought-, or ratified or adopted the agreement, if they should find any such, of said Magraw, so acting -as president, with the plaintiff.\\n4th. If the jury believe-, from the evidence, that the plaint-tiff was acting as agent for the Montour Iron Company, in effecting a sale to them of the defendant\\u2019s iron, then it Was a fraud upoA said company, to act for and accept a compensation from the defendant in that transaction, and he is not entitled to recover in this action any such compensation from the defendant, unless the jury further find that such acting for and agreement to compensate by the defendant, was known to and acquiesced in by the said Montour Iron Company.\\nThe court (Marshall, J.) granted the second and third, and rejected the first and fourth of these prayers, and to this rejection the defendant excepted. The verdictjand judgment were in favor of the plaintiff for $419.33; and the defendant appealed.\\nThe cause was argued before Lfe Grand, C. J., Tticis And Bartob, J.\\nBernard Carter, and J. Mason Campbell, for 'the appellant:\\n1st. So far as the evidence shows, it appears that Hollins, the secretary of the defendant, was the officer of the corporation to whom the corporation had entrusted all matters relating to the sale of the iron. The advertisement, as published in the newspaper, and which was the source of the plaintiff\\u2019s information, that this iron was for sale, expressly directed purchasers to Hollins, the secretary, and it was this officer who signed, on the part of the defendant, the contract of sale which was finally entered into with the Montour Iron Company. It appears, however, that Magraw was at the time of this transaction the acting president of the defendant. Had he any power by virtue alone of his office to employ the plaintiff on behalf of the company and bind the latter to pay for his services'.? We submit, he had no such power. The Act of 1854, ch. 25Q\\u201e (the charter of the defendant,) confirms the original Act of 1827, ch. 72, the 12th sec. of which declares, the \\u201cPresident and directors, or a majority of them, may appoint ail such officers, engineers, agents or servants, whatsoever, as they may deem necessary for the transaction of the business of the company, and may remove any of them at their pleasure; that they, or a majority of them, shall have power to determine, by contract, the compensation of all the engineers, officers, agents or servants in the employ of said company.\\u201d Now if the plaintiff is to be considered as employed b.y the defendant, it must be as an agent or servant; the charter has, in express words, entrusted the appointment of all its agents and servants to the president and directors. How, in the face of this can it be pretended that Magraw, as acting president, without a word said to the directors, had the power to employ the plaintiff, and at a rate of compensation fixed by himself? There is nothing in the record, or in the charter of the company, to show that Magraw had any power without the action of the directors, to sell any of the property of the company, and without some special authority, or power, given by the charter, or a vote of the corporation, it is clear he had no such power, virtute officii. Angell & Ames oh Corp., sec. 298. 7 Grattan, 352, Crump vs. U. S. Mining Co. 14 Mass., 180, Hollowell & Augusta Bank vs. Hamlin, et al. 29 Verm., 220, Hodges vs. Rutland & Burlington Railroad Co. 36 Maine, 414, Brown vs. Weymouth. 2 Ala., 724, Lazarus vs. Shearer. 19 Barb., 310, Soper vs. Buffalo Rochester Railroad Co. If he had no power of himself to sell the iron, what better right h\\u00e1d he to employ, of his own accord, another person to Sell that which h\\u00e9 had no\\u00bbpower to sell? The accessory must be supported without the principal. Nor does it appear that Magraw pretended even to settle the terms of the sale of the -iron, or to interfere in any way with Hollins in effecting 'the sale. Accord! ng to the plaintiff\\u2019s own showing, all he did Was to assent to the charg\\u00e9 which Bast\\u00edan said he meant to make. There is no evidence or pretence that Magraw, or any other president, had ever been-in tbe habit of making such contracts or engagements as this, or that any 'such power had ever been given by a vote of the corporation, or-that tbe assent of the latter to the exercise of such powers was ever signified by acquiescence'. Has the defendant', then, ever ratified -this engagement of Magraw? There is \\u00abnothing in the record t\\u00f3 Phow that the corporation ever had any knowledge that Magraw had made any arrangement or engagement of any kind -with -the 'plaintiff with reference to the sale of the iron, and still less that it ever had any knowledge of the particulars of this arrangement. There could, therefore, be no ratification. Story on Agency, sec. 239. 8 G. & J., 323, Steam Nav. Co. vs. Dandridge. 8 Md. Rep., 169, White vs. Davidson. 28 Penn. State Rep., 505, Moore vs. Patterson. 2 Md. Rep., 63, Keener vs. Harrod & Brooke. Hollins expressly states that Bastian\\u2019s claim was not recognized by the defendant; nor is there any evidence that the corporation ever, in any way, ratified the engagement made by Magraw with the plaintiff. Story on Agency, sec. 253. The evidence does not show that Magraw made any engagement for, or on account of,\\u2019 the defendant, to pay the plaintiff, commissions, and for this' reason, also, no acts of the defendant could amount to a ratification. Story on Agency, secs. 251, 258. It being clear then that Magraw had neither a special nor a general authority from the defendant to employ the plaintiff, or promise - to pay him, and that there has been no ratification by the defendant of the acts or engagements of Magraw, it follows that the defendant is not responsible, (Angel\\u00ed Sf Ames on Gorp., sec. 311, and cases cited,) and that its first prayer Should have been granted.\\n2nd. We contend, also, that the defendant\\u2019s fourth prayer should have been granted, and in support of this view refer to 2 -Story on Agency, sec. 31; 6 Pick., 204, Copeland vs. Mercantile Ins. Co.\\nRobert Gilmer, Jr.,- for the appellee:\\n1st. There was no error in the rejection of the defendant\\u2019s first prayer. It is well settled that one may be the agent of a corporation-, so as to bind it by his acts in a particular transaction, by implication from the facts and circumstances of the transaction, and the acts of the parties to it, without showing such agent to have been appointed under the corporate seal,' or giving proof that he has been appointed or elected by actual vote. 12 Wheat., 64, Bank of U. S. vs. Dandridge. 1 H. & G., 324, Union Bank vs. Ridgely. 2 Gill, 254, Burgess vs. Pue. The evidence in this case was admissible to go to the jury to raise such implication. 2 G. & J., 404, Davis vs. Barney. 4 H. & J., 516, Burt vs. Gwinn. If,then, such agency may be found by implication, and, as is1 contended, the evidence is admissible to go to the jury, by its' tendency t-o show the express purpose of the corporation to Sell the iron, and the course they pursued, as furnishing presumption that by permitting and assenting to the act by which Ivas carried out that purpose, they intended and provided for \\u00f1o other means by which it should be done, the implication might have been, in the opinion of the jury, that the corporation had thereby made Magraw their agent as to the plaintiff^ and the principle would have applied, that the acts and contracts of an agent, within the scope of his authority, would be binding on the corporation, a principle well established,- and which would render Magraw\\u2019s employment of the plain-.tiff, under the circumstances, binding on the company, provided this was an act that came regularly and legitimately within the scope of his authority as such agent, which also-was a question for the jury, and which was taken away by this prayer. Again, by acquiescing in it, it is insisted the company adopted Magraw\\u2019s act, and this is equal to authority, and was a question for the jury. It cannot, in right and justice, be permitted the defendant to accept the contract in such respects as it is beneficial, and reject its obligation or throw off its yoke. It is not contended that Magraw had any power to sell the iron and retain the plaintiff\\u2019s services, as president of the corporation, viriute qfficii, hut that, by all the acts of tire corporation, there was a fair and reasonable implication that, as to the plaintiff, they had set M.agrnw up as their agent in this particular, and that they must, therefore, be bound by his acts,\\n2nd. As to the second prayer. If the principle asserted by it were cq-d ceded to be correct, there is no sufficient foundation in the evidence for it or the facts on which it proceeds. It therefore asserts an abstract principle. The law never presumes illegality, and presumptions will be made to uphold the validity of a transaction until the contrary is proved. At best, there would be but a conflict of presumptions where the presumption of innocence must prevail.\", \"word_count\": \"3089\", \"char_count\": \"17617\", \"text\": \"Barton, J.,\\ndelivered the opinion of this court:\\nAt the trial of this action in the court below, the defendant, the present appellant, offered, four prayers, of which the second and third were granted., and the first and fourth refused. The defendant excepted, and by this appeal, has brought before us for review, the ruling of the court upon the first and fourth prayers.\\nThe suit was brought to recover a sum of money alleged co be due from the appellant to the appellee, for services rendered by the latter in his capacity of iron broker, in the sale of a quantity of old railroad iron belonging to the appellant. The contract upon which the plaintiff relies, is alleged to have been made- with- him by Mr. Magraw, the acting president of the railroad'company. The verdict and judgment were in favor of the plaintiff; and the appellant asks a reversal, on the ground that there was no evidence competent to go to the jury, to show that the acting .president was authorized by the defendant to employ the plaintiff, or to agree to pay him for his services. This question is presented by the first prayer; and, in deciding it, we must assume that the acting president of the company did- employ the plaintiff, and agree to- pay him the compensation claimed, those facts having been-found by the jury, and no-question being raised by the prayer, except as to the legal sufficiency of the evidence to go to the jury tor the purpose of showing the authority of the acting president to bind the company in the transaction. To determine this question,, it is necessary to advert to the evidence, which was substantially as follows:\\nIn April 1856, the railmad company caused an advertisement to be 'published in the newspapers, offering for sale about 800 tons of old T rails, which was signed by Robert S. Hollins, the Secretary of the company. Mr. Robbins, of Baltimore, who was acting, for the- plaintiff,, an iron broker, residing\\\"in Philadelphia, called- on Mr. Hollins in relation to the iron,'inquired the price-, &c v and informed him for whom he, Robbins, was- acting, and was referred' by Mr. Hollins to Mr. Magraw, the acting president pf the company, who, according to Mr.. Robbin's testimony,, upon being, informed that the plaintiff was acting as a broker, and was purchasing the Iron for a party in Philadelphia, and that the plaintiff would charge him (Magraw) one per cent, commission on the sale of, the iron-,, assented to the charge. It was further testified by Mr. Robbins, that the plaintiff visited Baltimore, went with witness to the office of'the-appellant; had, an interview wilb, Mr. Magraw, disclosed to him the name of' the party wishing'to. buy the iron, and informed him that he, the plaintiff, would charge him. one per cent, commission. Afterwards the plaintiff paid a second visit to Baltimore, when, through his agency, a sale was effected, and, on the 21st of June 1856, the contract of sale of 1000 tons of iron was made and con\\u00a9huded b.etvyeen the appellant and the Montour Iron Cont; pany. When the contract of sale was reduced to writing, and signed by the secretary of tire appellant, it was delivered to the witness, Robbins, who sent it to the plaintiff, in Philadelphia, to procure the signature of the Montour Iron Company, and the same was,, in. a few days, returned by mail to witness, who delivered it to Mr. Hollins, the secretary of the appellant.\\n(Decided May 16th, 1860.)\\nLooking at the facts and circumstances disclosed in the proof, as we have briefly stated them,, we think they furnish evidence from which the jury might find that Mr. Magraw, the acting president, was authorized to make the contract sued on. A corporation can act only by its agent, and, in order to bind the corporation, the agency must appear. This need not be shown by any resolution of the board, or other written evidence; it may be implied from facts and circumstances. 5 Md. Rep,, 152.\\nIn this case there is no question but that the offer of the iron for sale was the act of the railroad company.\\nAccording to the argument of the appellant, Mr. Hollins, the secretary,, was the agent to effect the sale. But the evidence shows that when he was called on in reference to the matter, Mr. Hollins referred the party to Mr. Magraw, the acting president, as the person empowered to act for the company, The only agency which Mr. Hollins appears to have h,ad in the business afterwards, was to sign the written contract of sale. If Mr. Magraw was empowered to effect the sale of the iron, and, in our opinion, there was evidence tending to prove that fact, then, it was competent for him to engage the services of the plaintiff to, aid in finding a purchaser and bringing about the sale. Such an act, in the absence of proof to the contrary, was within, the scope of his agency, as a reasonable and proper means of accomplishing ihe business entrusted to his charge. We think, therefore, the first prayer of the appellant was properly refused.\\nWe concur, also, in the ruling of the court below on the appellant's fourth prayer. There was no evidence to establish any fraud on the part of the plaintiff, in the transaction.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1866681\", \"name\": \"STATE v. MONTGOMERY\", \"name_abbreviation\": \"State v. Montgomery\", \"decision_date\": \"1962-04-19\", \"docket_number\": \"App. No. 51\", \"first_page\": \"661\", \"last_page\": \"661\", \"citations\": \"228 Md. 661\", \"volume\": \"228\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:05:52.964438+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. MONTGOMERY\", \"head_matter\": \"STATE v. MONTGOMERY\\n[App. No. 51,\\nSeptember Term, 1961.]\\nDecided April 19, 1962.\\nBefore Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.\", \"word_count\": \"59\", \"char_count\": \"349\", \"text\": \"Per Curiam.\\nApplication by the State for leave to appeal from the grant of post conviction relief is denied for the reasons stated in the opinion of Judge Allen in the court below.\"}"
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+"{\"id\": \"1869536\", \"name\": \"SMITH et al. v. BERNFELD, etc.\", \"name_abbreviation\": \"Smith v. Bernfeld\", \"decision_date\": \"1961-10-11\", \"docket_number\": \"No. 5\", \"first_page\": \"400\", \"last_page\": \"409\", \"citations\": \"226 Md. 400\", \"volume\": \"226\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:42:40.323913+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SMITH et al. v. BERNFELD, etc.\", \"head_matter\": \"SMITH et al. v. BERNFELD, etc.\\n[No. 5,\\nSeptember Term, 1961.]\\nDecided October 11, 1961.\\nThe case was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Sybert, JJ.\\nBari Pryor for the appellants.\\nJacob S. Levin for the appellee.\", \"word_count\": \"2651\", \"char_count\": \"14788\", \"text\": \"Bru\\u00f1e, C. J.,\\ndelivered the opinion of the Court.\\nThe plaintiff wife, Margaret R. Smith, and her husband, Albert H. Smith, brought this suit against Jules Bernfeld, the defendant, a beauty parlor operator, for injuries sustained by Mrs. Smith while she was a customer at one of the defendant's beauty parlors and by her husband for medical expenses incurred by him as a result thereof. The jury returned verdicts for both plaintiffs. The trial court entered judgment n.o.v. for the defendant, and both plaintiffs appeal. (Where \\\"the plaintiff\\\" (singular) is spoken of below, the reference is to Mrs. Smith.)\\nThe declaration alleged that the plaintiff was a customer at the defendant's beauty parlor, that she was awaiting service in a beauty salon chair provided for customers, that she \\\"leaned forward to place her pocketbook on a counter directly in front of such chair and that such chair tilted forward causing plaintiff to fall upon the floor and the chair to fall upon her\\\" and that the fall was due to the negligence of the defendant in failing to have the chair properly and firmly attached to the floor or in failing to provide a chair of sufficient balanced weight to withstand the weight of a customer sitting in the chair and \\\"leaning forward under such circumstances.\\\" The plaintiff's testimony at the trial as to the chair toppling over is in general accord with the above allegations, but is further to the effect that as she sat in the chair with her heels hooked behind a tubular bar serving as a footrest at the front of the chair and that as she started to settle back with her arms on the chair arms and her feet on the footrest, the chair tipped over, threw her on one side and fell on her. She also testified that two employees of the defendant had stated after the accident that the chairs tipped over easily, that several other people had nearly fallen out of them, and that it was customary for each of these employees to stand behind his or her chair when a customer was getting in or out. At the trial only one of these employees testified. He then ascribed his custom largely to the tendency of children who got in his chair to climb over it at all angles. (Though the plaintiffs had called him, they asked and were permitted to cross-examine him as a hostile witness.)\\nThe plaintiffs' case in the trial court was pitched upon the defendant's negligence in failing to bolt the chair in question to the floor or to furnish a chair of sufficient balanced weight as not to tip over. No claim was stated as to any failure of any of the defendant's employees to steady the chair while the plaintiff was getting into it or upon any duty to warn and failure to warn her of danger; nor was any instruction along those lines given or, so far as appears, requested. The alleged statements of employees were apparently offered to show that the chair was of defective construction and to bring home knowledge thereof to the defendant through the knowledge of these employees. In this Court the appellants seek to lay much emphasis on the doctrine of res ipsa loquitur, but no contention based thereon, so far as the record discloses, was made in the trial court.\\nNeither the chair involved in the accident nor a chair of the same type was produced in court, but it was described to some extent and its construction was made clearer by a sketch in a catalogue. It has four legs of tubular metal shaped more or less like spider legs which come together at a collar or hub roughly under the middle of the seat. Through this collar passes a treaded spindle, to which the seat is attached. By turning the seat on the spindle the chair can be raised or lowered through a range of about ten inches. A pin in the spindle limits the height to which the chair can be raised. Attached to the seat is a back, with arms coming forward from it. Also attached to the chair below its front edge and protruding perhaps six inches (exactly how much is not stated) is a tubular footrest. The chair had been raised to some unstated extent for the first phase of the plaintiff's treatment, she had left it temporarily and had returned for further attention.\\nThere was uncontradicted evidence on behalf of the defendant to show that the chair in question was of a standard type used in beauty parlors, that it was made by a large and es tablished manufacturer of such equipment and sold on a nationwide basis, and that the defendant had used chairs of the same or essentially similar design for fifteen years in his beauty parlors in serving more than 20,000 customers, none of whom, other than the plaintiff, had ever fallen out of one, and that a sales representative of the manufacturer who had been in the business for twenty-seven years had never known of anyone else falling out of one. This witness also testified, without contradiction, that chairs of similar design were installed in 95% of the beauty parlors designed and equipped by his company, and were made by the largest manufacturer of equipment in this particular field.\\nThe general rule by which the sufficiency of the evidence is to be tested when this Court is reviewing a motion for a directed verdict or judgment n.o.v. for the defendant is well established as being that this Court must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recover \\u2014 that is, the evidence must be viewed in the light most favorable to the plaintiff. Campbell v. Jenifer, 222 Md. 106, 110, 159 A. 2d 353; Zeamer v. Reeves, 225 Md. 526, 530, 171 A. 2d 488. A difficulty may arise in a case such as this where the defendant offers evidence to show some fact or facts by way of defense. Such evidence, where the facts are conceded or are undisputed, may be considered in reviewing a ruling on a motion for a directed verdict or in entering judgment n.o.v., but may not be so considered if the evidence is merely uncontradicted, if its truth is; controverted. Alexander v. Tingle, 181 Md. 464, 30 A. 2d 737. The rule of this case, as well as the practical difficulty - of applying the distinction therein stated, were recognized by-Judge Markell, speaking for the Court in Dunstan v. Bethlehem Steel Co., 187 Md. 571, 577-578, 51 A. 2d 288. See also Mario Anello & Sons, Inc. v. Dunn, 217 Md. 177, 181, 141 A. 2d 731, which, as did the Dunstan case, arose under the Workmen's Compensation Law.\\nIn the present case it is our view that the affirmative testimony on behalf of the defendant above summarized with regard to the manufacture and the wide distribution and use of chairs of the type here involved and of the absence of accidents to others from their use is essentially uncontroverted within the rule of Alexander v. Tingle, supra, and may, therefore, be considerd here, as was evidence of the sound construction and of inspection of the stool involved in Williams v. McCrory Stores Corp., 203 Md. 598, 102 A. 2d 253. We do not understand that the plaintiffs actually contend that it may not be considered here. It is true that the plaintiff testified that the chair was \\\"very unusual,\\\" but her explanation of this statement was that she had never seen one like it in any other beauty salon that she had been in. Her characterization of the chair seems to have been merely an expression of her personal opinion and she was not qualified as an expert in the field.\\nSince the plaintiff was a business invitee, a customer of the defendant, the latter owed her a duty to see that his premises and equipment intended for her use were reasonably safe and to warn her of any dangerous condition known, or which reasonably ought to have been known, to him, but not to the customer. Williams v. McCrory Stores, Corp., supra, 203 Md. at 604; Evans v. Hot Shoppes, Inc., 223 Md. 235, 239-241, 164 A. 2d 273, and cases therein cited. These cases make it clear that the proprietor is not an insurer of the safety of his patrons. In the latter case Judge Prescott fully reviewed the general rule as stated above and in the Restatement, Torts, Sec. 343, and in Maryland cases which have involved that Tule. He cited quite fully Glaze v. Benson, 205 Md. 26, 106 A. 2d 124, and Morrison v. Suburban Trust Co., 213 Md. 64, 130 A. 2d 915; and all of them are pertinent here notwithstanding that neither Evans, Glaze, nor Morrison dealt with chairs.\\nWilliams v. McCrory Stores Corp., supra, did deal with a stool at a lunch counter and it cited a number of chair cases. Among them were Herries v. Bond Stores, 231 Mo. App. 1053, 84 S. W. 2d 153, and Gow v. Multnomah Hotel, 191 Or. 45, 224 P. 2d 552, each of which involved a collapsing chair and Schueler v. Good Friend North Carolina Corp., 231 N. C. 416, 57 S. E. 2d 324, 21 A.L.R. 2d 417, where a customer in a store sat on one of a row of chairs and the whole row toppled over backwards. In that case, there was evidence to show that the whole row was likely to tip over unless it was bolted to the floor. It had previously been so attached, but was not at the time of the accident. The doctrine of res ipsa loquitur was applied in that case, but in view of the evidence of specific negligence, we should not regard it as controlling if the case had arisen under the law of this State.\\nIt is obvious and it was admitted that the chair in question could be tipped over and that it might be tipped over by someone standing on the footrest bar. These facts, we think, are not sufficient to show faulty construction of the chair. If they were, almost any movable chair would be inherently dangerous; and as a matter of common experience that simply is not so.\\nThis leaves for consideration the plaintiffs' alternative ground of alleged negligence\\u2014that the chair should have been bolted to the floor. Much the same may be said of this as of the closely related contention that the chair was of faulty construction. It must be borne in mind that the plaintiffs have the burden of showing negligence. It is doubtless true that as the chair seat is raised, the center of gravity is raised and the stability of the chair is thereby reduced. There is, however, no evidence to show at what, if any, point of elevation reasonable stability of the chair is lost; and the fact that the chair seat could be raised about ten inches (it is not even shown how much it actually was raised) is not of itself enough to show that the chair would become unstable. The situation is quite different from that in the Schueler case, where the chair was unstable because of its construction in that the seat overhung the legs. Even the reported statements of employees of the defendant made to the plaintiff just after the accident do not show that any chair of this type had tipped over\\u2014only that they might be tipped over, which, of course, is true of almost any chair. Their statements, indeed, indicated that none had tipped over.\\nWe have here a case in which the defendant used equipment of a type standard in the trade all over the country. While proof that a businessman follows the standards in his trade is not conclusive of due care, it is very strong evidence thereof. See Stottlemeyer v. Groh, 201 Md. 414, 94 A. 2d 449; Long v. Joestlein, 193 Md. 211, 216-217, 66 A. 2d 407; Smith v. Marks Isaacs Co., 147 So. 118 (La. App., 1933) ; II Harper & James, The Law of Torts, \\u00a7 17.3; Morris, Custom and Negligence, 42 Colum. L. Rev. 1147 (1942). As Morris points out, \\\"[i]t puts teeth in the requirement that the plaintiff establish negligence.\\\" 42 Colum. L. Rev. at 1148.\\nOf course the owner or user of property has a duty to a business visitor to provide reasonably safe premises within the scope of the invitation. However, no business man is required to provide an appliance or place of business free from the hazard of all mishaps. This is a task impossible to fulfill. When a business man uses a customary appliance, as in this case, negligence merely from his using that appliance is not lightly to be imputed, for the custom goes a long way to show that it is reasonably prudent to use it. A proprietor cannot be held for mishaps resulting from conditions obvious to any customer. As is said in II Harper & James, op. cit., \\u00a7 27.13, pp. 1489-1490:\\n\\\"People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight.\\\"\\nThe very absence of any claim on the part of the appellants either in their declaration or in their brief in this Court of any breach of duty on the part of the defendant because of the fact that none of his employees steadied the chair while the plaintiff wife was getting in it or settling herself in it, or because no warning of danger was given her, is, we think, not without significance as to the absence of any actual known danger. This view is strengthened by the appellants' attempt to rely in this- Court on res ipsa loquitur, which was not even an issue in the trial court.\\nIf we assume that the facts that this specific issue was not presented in the trial court and that the plaintiffs took no exceptions to the charge would not prevent its consideration in this Court under Maryland Buies 885 and 554 e, we think that the plaintiffs' attempt to establish specific grounds of alleged negligence precludes recourse to the doctrine of res ipsa loquitur. Smith v. Baltimore Transit Co., 214 Md. 560, 566, 136 A. 2d 386; Maszczenski v. Myers, 212 Md. 346, 352, 129 A. 2d 109; Coastal Tank Lines v. Carroll, 205 Md. 137, 145, 106 A. 2d 98; Hickory Transfer Co. v. Nezbed, 202 Md. 253, 262-263, 96 A. 2d 241; Strasburger v. Vogel, 103 Md. 85, 63 A. 202. We accordingly hold that the doctrine of res ipsa loquitur is not available to the plaintiffs here.\\nEven if it were, it could do no more than serve as an argument in support of their claims of specific negligence. Their proof in support thereof was, as we have said, insufficient to warrant submission of the case to the jury. Williams v. McCrory Stores Corp.; Evans v. Hot Shoppes, Inc.; both cited above. Accordingly, we think the trial court was correct in granting the defendant's motion for judgment n.o.v.\\nJudgment affirmed; costs to be paid by the appellants.\"}"
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+"{\"id\": \"1901533\", \"name\": \"SELECTED RISKS INSURANCE COMPANY v. WILLIS, Personal Representative of the Estate of James W. Willis\", \"name_abbreviation\": \"Selected Risks Insurance v. Willis\", \"decision_date\": \"1972-11-09\", \"docket_number\": \"No. 60\", \"first_page\": \"674\", \"last_page\": \"678\", \"citations\": \"266 Md. 674\", \"volume\": \"266\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:37:49.132978+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SELECTED RISKS INSURANCE COMPANY v. WILLIS, Personal Representative of the Estate of James W. Willis\", \"head_matter\": \"SELECTED RISKS INSURANCE COMPANY v. WILLIS, Personal Representative of the Estate of James W. Willis\\n[No. 60,\\nSeptember Term, 1972.]\\nDecided November 9, 1972.\\nThe cause was argued before Murphy, C. J., and Barnes, Singley, Smith and Levine, JJ.\\nLloyd A. Dreiling, with whom was David D. Patton on the brief, for appellant.\\nFloyd L. Parks for appellee.\", \"word_count\": \"1127\", \"char_count\": \"6588\", \"text\": \"Murphy, C. J.,\\ndelivered the opinion of the Court.\\nThe appellant, Selected Risks Insurance Company, against whom a summary judgment was entered below, manifests in this appeal a dogged tenacity \\u2014 but little if anything else. The policy of insurance at issue was a \\\"Volunteer Fire Company Blanket Accident Policy,\\\" under which Selected insured \\\"each and every member of the Volunteer Fire Company known as Kent County Fire Chiefs Association & Kent Firemen's Rescue Squad\\\" in the sum of $10,000 against, among other things, loss of life suffered \\\"by reason of and in the course of duties as a member of said Fire Company.\\nJames W. Willis, a seventeen year old, whose personal representative is the appellee, was an active member of the Kennedyville Volunteer Fire Company and concededly an insured under the policy at issue. The affidavits filed by the claimant in support of her motion for summary judgment state these facts. The Kennedyville Volunteer Fire Company had held a picnic each year since 1964, a main reason being \\\"to provide . . . sponsored recreation to build esprit de corps and morale among the [members of the fire company] of a type beneficial to aid in the members' working together in training for fighting and in fighting fires and, to further the recruiting efforts of the [company] both in preventing high turnover of trained men and in attracting members.\\\" The members of the fire company were told in advance of the picnics, that they were annual affairs \\\"organized, sponsored, and made to occur\\\" by the fire company, and that the members of the company were expected to attend \\\"unless they had a reasonable reason not to so attend.\\\" The Chief of the fire company asked Willis to go to the picnic area early on August 8, the day the picnic was to be held in 1971, \\\"to help set up the affair\\\" which Willis did. He remained at the picnic \\\"to take part in the activities which included swimming in the river nearby.\\\" While Willis was so swimming and while \\\"the picnic was officially in progress,\\\" he accidentally drowned \\\"although valiant efforts were made to save him.\\\" When he drowned, Willis was not under the influence of alcohol (a policy exclusion) and was not participating \\\"in any athletic game or contest\\\" of any kind (another policy exclusion).\\nSelected did not controvert the facts set out by the claimant in support of her motion for judgment; instead, it claimed in its answer that it was entitled to have a jury draw and determine inferences from the facts. Selected framed its contention in these words in its memorandum in support of its answer to the motion for summary judgment:\\n\\\"Whether in law these facts show loss for bodily injuries suffered by reason of and in the course of duties as a member of the fire company, and not otherwise, and effected independently and exclusively of all other causes, is clearly questionable. A party against whom inferences are sought to be drawn is entitled to the inference most favorable to his contentions\\nIn its brief on appeal, Selected submits that whether Willis' swimming at the picnic was or was not for pleasure only and his drowning was or was not occasioned \\\"by reason of and the course of [Willis'] duties as a member of the said Fire Company,\\\" within the coverage of the policy, were questions for a jury.\\nSelected did not, and does not now, challenge the material facts asserted by the claimant and no inferences to be drawn from material facts are suggested, so that no dispute of material fact is offered for determination. This presents the classic case for summary judgment for either plaintiff or defendant as the applicable law requires. Wyand v. Patterson Agency, Inc., 266 Md. 456, 295 A. 2d 773 (1972). We think the undisputed material facts require an affirmance of the summary judgment entered against Selected. In our view the case is controlled by Sica v. Retail Credit Co., 245 Md. 606, 227 A. 2d 33 (1967). The material facts in that case are markedly similar to those in the present case. In Sica, an employee was seriously hurt while swimming at a company picnic. We held that the picnic was sufficiently work-connected to bring the injured employee within the coverage of the workmen's compensation law and held that, as a matter of law, Sica sustained an accidental injury arising out of and in the course of his employment. We do not suggest that in all instances construction of statutory or policy language in workmen's compensation cases is to be equated with construction of language in accident policies. Compare Frazier v. Unsatisfied Claim and Judgment Fund Board, 262 Md. 115, 118-19, 277 A. 2d 57, 59 (1971). But if the drowning of an employee at a company-sponsored picnic arose out of and in the course of his employment, then the drowning of a fireman at a work-related picnic scheduled and sponsored by the fire company was, in the language of the policy now before us, suffered \\\"by reason of and in the course of duties as a member of said Fire Company.\\\"\\nThe similarity between the words \\\"arising out of and in the course of employment,\\\" used in the workmen's compensation law, with those appearing in Selected's policy could hardly have escaped Selected's notice. The policy it wrote was issued some three years after Sica was decided and seventeen years after a Massachusetts case, and a New York case upon which we relied in Sica were decided.\\nSelected claims that the lower court erred in declining to grant a continuance to afford it an opportunity to secure discovery and necessary depositions, as well as other matters needed to enable preparation of a defense in opposition to the motion for summary judgment. The lower court denied the requested continuance on the ground that since it was made for the first time in the midst of the argument on the motion for summary judgment, it came too late. We find no abuse of discretion in that ruling.\\nJudgment affirmed with costs.\\n. Moore's Case, 330 Mass. 1, 110 N.E.2d 764 (1953); Tedesco v. General Elec. Co., 305 N. Y. 544, 114 N.E.2d 33 (1953). A New Jersey case, Ricciardi v. Damar Products Co., 45 N. J. 54, 211 A. 2d 347, upon which we also placed reliance in Sica, was decided in 1965, approximately five years before Selected's policy was written.\"}"
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+"{\"id\": \"1909502\", \"name\": \"ROMANESK v. ROSE\", \"name_abbreviation\": \"Romanesk v. Rose\", \"decision_date\": \"1968-01-08\", \"docket_number\": \"No. 29\", \"first_page\": \"420\", \"last_page\": \"425\", \"citations\": \"248 Md. 420\", \"volume\": \"248\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:24:12.593311+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROMANESK v. ROSE\", \"head_matter\": \"ROMANESK v. ROSE\\n[No. 29,\\nSeptember Term, 1967.]\\nDecided January 8, 1968.\\nThe cause was argued before Hammond, C. J., and Horney, Barnes, McWilliams and Finan, JJ.\\nJoel Savits, with whom were Barker & Savits on the brief for appellant.\\nNorman H. Heller for appellee.\", \"word_count\": \"1736\", \"char_count\": \"9837\", \"text\": \"Horney, J.,\\ndelivered the opinion of the Court.\\nIn this tort action tried in Maryland under Virginia law for personal injuries received by a guest passenger riding in an automobile operated by the owner, the question on appeal is whether there was sufficient evidence of gross negligence to allow the jury to determine whether the plaintiff-appellee was entitled to recover damages from the defendant-appellant.\\nIn the early evening of a day in mid-January of 1965, the appellant, Richard A. Romanesk, accompanied by his wife, the appellee, Margo D. Rose, and Guy S. Pizzuto, drove from Palmer, Maryland, to a housewarming party in Arlington, Virginia. The party continued until about 1:30 a.m. the next day. The appellee had two or three glasses of champagne during the party and the appellant had a glass of champagne and three highballs. None of the group was intoxicated. After the party broke up, the appellant ate breakfast with the host. Between 2:30 and 3 :00 a.m. the two couples left for the return trip, the Romanesks (the husband driving) in the front seat and the two passengers seated in the rear of the automobile.\\nAt the trial, Margo Rose testified that they left Washington Street, went down a hill and turned right to get onto Arlington Boulevard. Although she dozed off at once, she remembered hearing a noise and feeling bumps but recalled nothing else until she awoke in a hospital.\\nGuy Pizzuto testified that the appellant stopped at a blinking red light at the intersection of Nash Street and Arlington Road and that when Romanesk got on the main highway he accel erated quickly up to what he estimated to be \\\"sixty or seventy miles an hour\\\" in a thirty-five mile zone. He further stated that he had leaned forward to ask the driver to reduce his speed when the automobile slowed down and it seemed to him that \\\"we were trying to make a turn or something\\\" and that when the driver tried to slow he reduced his speed to \\\"fifty or fifty-five miles an hour\\\" and veered off the road and struck an embankment on the edge before the automobile struck a concrete abutment.\\nThe roadway where the accident occurred was unlighted. Both sides of the road were being reconstructed and torch-topped barrels were spaced along the edges of the roadway. There was a road sign \\u2014 Washington Next Right \\u2014 and a break in the line of barrels immediately before the automobile reached the point of impact.\\nAt the close of the case for the plaintiff, the defendant moved for a directed verdict but the trial court declined to rule on the motion at that time.\\nRichard Romanesk admitted that the accident occurred in a thirty-five mile zone, but denied that Pizzuto had correctly estimated his speed. He testified that he had been misled by the sign and the break in the line of barrels to believe that the road turned off where he attempted to turn; that he struck several of the barrels and knocked them into the gully; that as he left the paved portion of the roadway he saw a deep drop before him; and that he accelerated the motor and turned his wheels to the left to prevent the automobile from dropping over the embankment but could not avoid striking the abutment of the overpass. The automobile was almost completely demolished.\\nWhen the defendant renewed the motion for a directed verdict at the close of all the evidence, it was denied. The motion for a new trial or in the alternative for a judgment n.o.v. was also denied.\\nSince the accident occurred in Virginia, it is governed by the law of that state which has a guest statute providing in pertinent part\\u2014\\n\\\"No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation shall be entitled to recover damages against such owner or operator for injuries to the person or property of such guest resulting from the operation of such motor vehicle, unless such injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator.\\\" Code of Virginia, Vol. 2, \\u00a7 8-646.1 (1950).\\nGross negligence is defined in 4 Blashfield, Cyclopedia of Automobile Law and Practice, \\u00a7 2771 (1946 ed.) as\\u2014\\n\\\"an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.\\\"\\nFor cases applying this definition to guest statutes, see Blashfield, op. cit. \\u00a7 2322; 8 Am. Jur. 2d, Automobiles and Highway Traffic \\u00a7 506-523; 60 C.J.S. Motor Vehicles \\u00a7 399(4); 42 Va. L. Rev. 97; Wallower v. Martin, 144 S. E. 2d 289 (Va. 1965); Laster v. Tatum, 146 S. E. 2d 231 (Va. 1966).\\nWhether or not gross negligence exists necessarily depends on the facts and circumstances in each case. Wallower v. Martin, supra. It is usually a question for the jury and is a question of law only when reasonable men could not differ as to the rational conclusion to be reached. Smith v. Prater, 146 S. E. 2d 179 (Va. 1966).\\nWe think there was sufficient evidence to sustain the verdict of the jury in this case. While it may be that excessive speed alone would not ordinarily constitute gross negligence, Laster v. Tatum, supra, nevertheless, if the cumulative effect of ex cessive speed and other acts of negligence \\\"shows a form of recklessness or a total disregard of all precautions akin to willful and wanton misconduct, it is a question for the jury whether such negligence amounts to gross negligence.\\\" Kennedy v. Mc-Elroy, 81 S. E. 2d 436, 439 (Va. 1954). Also see Garst v. Obenchain, 58 S. E. 2d 207 (Va. 1955); Gill v. Haislip, 114 S. E. 2d 603 (Va. 1960).\\nIn the present case, the jury could properly have found from the evidence that the operator of the automobile, having driven over the same roadway on the way to the party, should have been aware of the obviously dangerous conditions; that the four alcoholic drinks he had consumed together with the lateness of the hour of the night, had impaired his ability to remain alert; that if he had seen the dangerous conditions on the way home as he should have he failed to look effectively before he attempted to make a right turn into what he thought was a roadway; that he drove his automobile on an unlighted roadway under reconstruction at an excessive rate of speed in utter disregard of prudence; and that he was either recklessly inattentive or had completely lost control of his automobile.\\nWhether the operation of a motor vehicle by a driver without looking or, having looked ineffectively, did not see what should have been seen constitutes gross negligence, is a question for the jury to decide. Barham v. Virginia National Bank, 142 S. E. 2d 569 (Va. 1965); Solterer v. Kiss, 70 S. E. 2d 329 (Va. 1952). Whether the disregard of prudence, such as driving at a rapid rate of speed heedless of displayed warnings, amounts to complete neglect of the safety of a guest passenger is likewise a jury question. Leech v. Beasley, 128 S. E. 2d 293 (Va. 1962); Doerr v. Barnes, 94 S. E. 2d 271 (Va. 1956).\\nIn Smith v. Prater, supra, it was said that deliberate or voluntary inattention to the operation of a motor vehicle is a good indication of gross negligence. In Solterer v. Kiss, supra, it was held that it is for the jury to say if the loss of control of a motor vehicle was due to mere inadvertance or lack of ordinary care or to gross negligence.\\nThis case, in that the appellant contends that the collision with the abutment was the result of having been misled and confused by a directional sign into presuming that the break in the line of barrels was where he was to make a right turn to go to Washington, is similar to the case of Solterer v. Kiss, supra, wherein the appellant, contending that he was misled and confused by a roadway leading to Andrews Chapel, entered the primary road without stopping and collided with another motor vehicle in the intersection. In that case, as in this, the question, as to whether the failure of the driver to properly look before moving onward amounted to gross negligence, was for the jury to decide.\\nThe law in Maryland as to what is and is not gross negligence in criminal cases involving manslaughter by automobile is in line with the Virginia decisions under the motor vehicle guest statute. As was pointed out by Judge Oppenheimer in the second footnote to the opinion in White v. King, 244 Md. 348, 223 A. 2d 763 (1966), the test is whether the conduct of the accused \\\"was such as to amount to 'a wanton or reckless disregard for human life or for the rights of others.' \\\" See Johnson v. State, 213 Md. 527, 132 A. 2d 853 (1957); Lilly v. State, 212 Md. 436, 129 A. 2d 839 (1957); Clay v. State, 211 Md. 577, 128 A. 2d 634 (1957).\\nAs there was evidence from which the jury could find that the injuries of the guest passenger were caused or resulted from the gross negligence or willful or wanton disregard of her safety on the part of the owner and operator of the motor vehicle, the judgment entered by the trial court on the verdict of the jury must be affirmed.\\nJudgment affirmed; costs to be padd by the appellant.\\n. The record is not clear as to whether the torches were burning at the time of the accident.\"}"
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--- /dev/null
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+"{\"id\": \"1911221\", \"name\": \"VAIN, et ux. v. GORDON\", \"name_abbreviation\": \"Vain v. Gordon\", \"decision_date\": \"1968-03-04\", \"docket_number\": \"No. 110\", \"first_page\": \"134\", \"last_page\": \"137\", \"citations\": \"249 Md. 134\", \"volume\": \"249\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:40:32.672969+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VAIN, et ux. v. GORDON\", \"head_matter\": \"VAIN, et ux. v. GORDON\\n[No. 110,\\nSeptember Term, 1967.]\\nDecided March 4, 1968.\\nThe cause was argued before Hammond, C. J., and Marbury, Barnes, Finan and Singley, JJ.\\nThomas A. Rymer for appellants.\\nKenneth B. Pruden, with whom was George T. Burroughs on the brief, for appellee.\", \"word_count\": \"1046\", \"char_count\": \"6052\", \"text\": \"Hammond, C. J.,\\ndelivered the opinion of the Court.\\nThe payee of a note under seal made in 1965, payable one year after date, caused judgment by confession to be entered in the Circuit Court for Prince George's County in April 1966 for the full amount of the note and interest and attorney's fee, all as authorized by the terms of the note, when the note was not paid when due.\\nA timely motion to vacate the judgment on the ground that there was no consideration for the note was granted (the lien being retained), and the makers were given fifteen days to file responsive pleas. The makers filed the general issue pleas in assumpsit and, in due course, the case came on for trial before a jury. The plaintiff payee testified that the note had been signed by the defendant makers, husband and wife, and delivered to him, and that nothing had been paid thereon, whereupon the note was admitted in evidence. The court would not permit the makers to inquire into the matter of consideration for the note or to show that there was none and, when the makers offered no other defense, directed a verdict for the payee.\\nThe contest of the parties in this Court is between the makers' theory that under Citizens National Bank v. Custis, 153 Md. 235, lack of consideration for a negotiable instrument, whether or not under seal, may be shown under the general issue plea, and the payee's theory that under Maryland Rule 342 cl (1) a denial of consideration for a contract under seal must be specially pleaded.*\\nThe parties proceeded below and here on the assumption that the note is negotiable, although the payee contends and the makers concede that if the note is not negotiable, Rule 342 c 1 (1) and Roth v. Baltimore Trust Co., 161 Md. 340, require that the defense of lack of consideration for the non-negotiable instrument under seal must be specially pleaded, and cannot be availed of under the general issue pleas.\\nWe find the note to be non-negotiable. It is identical in its language authorizing confession of judgment in any court \\\"as of any term\\\" with the note before us in Stankovich v. Lehman, 230 Md. 426, in which we held that under the Negotiable Instruments Act the authorization to confess judgment \\\"as of any term\\\" permitted entry of judgment at any time prior to the maturity of the note and therefore destroyed negotiability.\\nThe Uniform Commercial Code does not appear to have changed the law on the point. Code (1964 Repl. Vob), Art. 95B, \\u00a7 3-112 (1) (d), provides that \\\"the negotiability of an in strument is not affected by a term authorizing a confession of judgment on the instrument if it is not paid when due .\\\" We said in Stankovich Aat page 430) :\\n\\\"It would seem logical that if the statute, as it does, preserves negotiability only if the confession of judgment is at or after maturity, the warrant to confess must expressly, or by necessary implication, restrict its exercise to that time if the note is to be negotiable, and that if the warrant is silent as to the time when it can be exercised, the reasonable implication must be that it can be done at any time. Most of the cases involving this general area of the law have arisen in Pennsylvania, and the Courts of that State have held that notes containing stipulations for confession of judgment without specification or limitation as to time are, like those expressly authorizing judgment prior to maturity, nonnegotiable.\\\"\\nThe Pennsylvania Courts have read the Uniform Commercial Code as not changing the law and have continued to hold that a provision in a note authorizing confession of judgment before the note is due renders it non-negotiable. Smith v. Lenchner, 205 A. 2d 626 (Pa. Super. Ct. 1964) ; Fidelity Trust Co. v. Gardiner, 155 A. 2d 405 (Pa. Super. Ct. 1959) ; Bittner v. McGrath, 142 A. 2d 323 (Pa. Super. Ct. 1958). In 1 Anderson's Uniform Commercial Code 528 (1961), the author says:\\n\\\"Negotiability is not affected by a provision authorizing the confession of judgment upon default when the instrument is due. If the instrument authorizes a confession of judgment before default or before the instrument is due the instrument is nonnegotiable.\\\"\\nWe conclude that the lower court did not err in excluding the defense of want of consideration under the circumstances of the case before us.\\nJudgment affirmed, with costs.\\n. \\\"The logical and necessary conclusion would seem to be that the legislative intent was to put negotiable papers, whether sealed or unsealed, on a common substantive and procedural equality, and so to permit this defense of a total or partial failure of consideration to be made without reference to the presence or absence of a seal to an instrument of writing, if otherwise negotiable. and, so far as procedure is concerned, no distinction is to be made in the pleadings by reason of the presence or absence of a seal upon the instrument, but in every such suit at law it will be sufficient for the defendant to set up his defense of an absence or total or partial failure of consideration under the general issue plea of either the defendant never promised as alleged, or was never indebted as alleged.\\\" (p. 242 of 153 Md.)\\n. Roth v. Baltimore Trust Co., 161 Md. 340, 348, held: \\\"The general issue pleas filed in this case permit, therefore, any matter of defense or discharge, except a denial of the incorporation of the plaintiff, the execution of the specialty, and the consideration for the nonnegotiable contract under seal, to be available to the defendant, except those defenses which must have been presented either by a special plea or by some other form of express denial in an action of assumpsit prior to the enactment of this provision. Citizens' Nat. Bank v. Custis, 153 Md. 235, 241, 242, 138 A. 261, 53 A.L.R. 1165.\\\"\"}"
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diff --git a/md/1922404.json b/md/1922404.json
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--- /dev/null
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+"{\"id\": \"1922404\", \"name\": \"ALINA, et al. v. RASCHKA\", \"name_abbreviation\": \"Alina v. Raschka\", \"decision_date\": \"1969-06-30\", \"docket_number\": \"No. 350\", \"first_page\": \"413\", \"last_page\": \"422\", \"citations\": \"254 Md. 413\", \"volume\": \"254\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:52:44.367663+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALINA, et al. v. RASCHKA\", \"head_matter\": \"ALINA, et al. v. RASCHKA\\n[No. 350,\\nSeptember Term, 1968.]\\nDecided June 30, 1969.\\nMotion for rehearing filed July SO, 1969; denied September 8,1969.\\nThe cause was argued before Hammond, C. J., and Marbury, McWilliams, Finan and Singley, JJ.\\nJoseph F. Lentz, Jr., with whom were Monfred & Lentz on the brief, for appellants.\\nDelverne A. Dressel, with whom was Emanuel H. Horn on the brief, for appellee.\", \"word_count\": \"2682\", \"char_count\": \"14904\", \"text\": \"Marbury, J.,\\ndelivered the opinion of the Court.\\nOn October 13, 1966, an automobile driven by the appellee John E. Raschka, struck the infant appellant Raclis S. Alina. The appellant Mary Elizabeth Alina, individually and as Raclis' mother and next friend, brought this action for damages arising as a result of the injuries sustained by the child. A jury trial was held on September 19, 1968, in the Circuit Court for Baltimore County. At the end of the appellants' case, the lower court granted the appellee's motion for a directed verdict and held as a matter of law that the appellants had failed to make out a prima facie case of negligence against Raschka. After a motion for a new trial was denied and judgment entered against them, the Alinas noted an appeal to this Court.\\nAt approximately 2:25 p.m. on October 13,1966, Raclis, who was then three and one-half years old, ran from behind a hedge located in front of his grandmother's house at 1417 Vesper Avenue into the street and was hit by Rasehka's automobile. It was a sunny, warm day and the avenue, which was approximately twenty feet wide, was dry. Because of the heat, the blacktop or macadam road surface was soft.\\nThe appellants called the appellee as their witness to establish the details of the accident. Raschka related that he lived at 1409 Vesper Avenue, and that at the time of the accident he was returning home with his son from a nearby bicycle shop. As he drove north on Vesper, there was only one car parked to his right and his view after passing that car was clear for approximately 600 feet to the point of impact. Across the street from the house in front of which the child was injured, there is a school. The appellee admitted that at times he had seen children playing and running in the street. He further testified that on two previous occasions he had taken Raclis out of the road and that he knew that certain neighbors had also done the same. Mr. Raschka stated: \\\"Well, this child has a habit of running out in front of cars.\\\"\\nAs he was traveling on Vesper Avenue at a speed of twenty miles per hour, the appellee first saw Raclis run out from behind a thick hedge about five feet in height, located in front of the child's grandmother's house. The hedge was approximately ten feet from the street. Raschka testified that when he first saw the boy, he was \\\"about two car lengths back\\\" and that he immediately slammed on his brakes when it became apparent that the boy was coming into the street. Appellee's vehicle left forty-nine feet of skid marks from his left rear wheel, but apparently none from the right rear wheel. He did not .sound his horn as he attempted to bring his automobile to a stop, and he did not swerve his car to the left or right to avoid striking the child.\\nOfficer Gary Witt, a Baltimore County policeman who investigated the accident, was also called as a witness by the appellants. Officer Witt testified that the speed limit on Vesper Avenue was twenty-five miles per hour. Due to the surface condition of the road which was soft due to the heat, he was unable to state the exact speed at which Raschka's vehicle was traveling, but he could state that the appellee was operating his car at \\\"not an excessive speed . . . .\\\" Although he testified that appellee's vehicle left only one skid mark, Officer Witt acknowledged that his official report indicated that there were no apparent mechanical defects in the vehicle, including the brakes.\\nOn appeal, the issue is whether the lower court erred in granting a directed verdict in favor of the appellee. The appellants urge that the evidence presented was sufficient to permit a jury to find negligence on Raschka's part in (a) failing to reduce his speed when approaching the area in which the accident occurred; (b) failing to apply his brakes when he first noticed the infant; (c) failing to reduce his speed at or near a school zone; (d) failing to sound his horn; (e) driving an automobile with defective brakes; (f) failing to turn his automobile to the left in order to avoid striking the child; (g) operating his vehicle across the center of the road; and (h) appellants also argue that the appellee should have been permitted to answer a question pertaining to the time in which he should have applied his brakes. This Court finds no merit in any of these contentions and will affirm the judgment entered by the lower court after granting a directed verdict for the appellee.\\n(a) (b) (c)\\nSince the appellants' arguments (a), (b) and (c) all pertain to a reduction of speed, we shall discuss these three together. It is well established in Maryland that a driver must exercise a high degree of caution when driving in a residential area where children are known to be. Mulligan v. Pruitt, 244 Md. 338, 223 A. 2d 574; Levine v. Beebe, 238 Md. 365, 209 A. 2d 67; Richardson v. Scott, 232 Md. 490, 194 A. 2d 288; State, Use of Taylor v. Barlly, 216 Md. 94, 140 A. 2d 173. Yet the fact that a motorist was familiar with an area and knew that children played on lawns or in the street on prior occasions has not precluded a directed verdict in favor of the motorist in other \\\"dart out\\\" cases. Willey v. Glass, 242 Md. 156, 218 A. 2d 212; Richardson v. Scott, supra. This Court has stated on numerous occasions that if a child darts out in front of an approaching vehicle when the driver is traveling at a reasonable rate of speed and obeying the rules of the road so that with the exercise of due care he is unable to avoid hitting the child, the driver is not liable for any injuries sustained by the child. Willey v. Glass, supra; Buscemi v. Bensel, 236 Md. 651, 205 A. 2d 219; Richardson v. Scott, supra; Lenehan v. Nicholson, 214 Md. 414, 135 A. 2d 447; Cocco v. Lissau, 202 Md. 196, 95 A. 2d 857.\\nIn the instant case, the appellee testified that he was traveling at a speed of twenty miles an hour, five miles below the speed limit. Officer Witt corroborated the fact that Raschka was not traveling at an excessive speed. There was no testimony that at the time of the accident the appellee observed children playing in the' street or immediately adjacent thereto. Had such been the case he may have been required to reduce the speed of his vehicle even further. See Buscemi v. Bensel, supra; Brantner v. Watkins, 227 Md. 626, 177 A. 2d 873; Richardson v. Scott, supra. While there may be an instance where proceeding at a rate below the speed limit constitutes negligence, this Court cannot say that the appellee was negligent in operating his vehicle at a speed of twenty miles per hour. The appellants maintain that the appellee was negligent in not applying his brakes when he first noticed the infant. This argument has no merit. Raschka testified that when he was about \\\"two car lengths back\\\" he first saw the boy who ran from behind the hedge for approximately ten feet to the edge of the road, where he continued into the roadway until struck by the appellee's vehicle. In Richardson v. Scott, supra, this Court commented :\\n\\\"The appellants claim that the little girl standing on the grass plot with a background of the green hedge must have been in plain view of the appellee and, therefore, the appellee should have taken proper action to avoid striking the child should she leave the place of safety and move either in front of or against the front portion of the car. Miss Scott had noticed Sue Ann on one prior occasion when the child, with other children, was in the street in the vicinity of her home. She had noticed the child in her own yard on a second prior occasion when she traversed the street. On the third occasion, when the accident occurred, seeing no children in the street and devoting her attention to the street ahead of her which was her primary duty, she, we think, can not be legally held to be negligent in not anticipating that the child, even if it had been seen by her as she approached, would either leave the grass plot and walk or run into the path of her car as she reached the entrance of the driveway.\\\" 232 Md. at 495, 194 A. 2d at 291.\\nSimilarly in Mumford v. United States, 150 F. Supp. 63 (D.C. Md., 1957), an eight year old boy rode his bicycle across a residential street from a driveway in the middle of the block into the path of an approaching truck traveling approximately twenty-five miles per hour. Granting a judgment for the defendant, Chief Judge Thomsen, speaking for the court stated:\\n\\\"If in fact the boy started to ride down the driveway from the parking lot, the driver could have seen him as soon as he came out from behind the house, some 37 feet from the curb, provided his attention had been directed to that point at that time; but the driver would have had the right to assume that the boy would turn to the right or to the left on the sidewalk or in the empty street and would not ride straight across in front of the truck. Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 49 A. 2d 537; R. & L. Transfer Co. v. State, 160 Md. 222, 153 A. 87. If the boy was riding on the sidewalk, the driver had even less reason to expect the boy to turn into the street and to ride entirely across it without looking. The driver was proceeding at a moderate speed and had his truck under control. It was not his duty to sound his horn every time he saw a boy on a bicycle; but it was his duty to sound his horn or to take other appropriate measures to avoid an accident as soon as he saw, or should have seen, that the boy was entering the street without looking at the truck.\\\" 150 F. Supp. at 66.\\nAppellant's contention that Raschka was negligent in tailing to reduce his speed in a school zone also lacks merit since the school was apparently in session and was protected by a fence with a locked gate. See Rodriguez v. Lynch, 246 Md. 623, 229 A. 2d 83, where we indicated that even a sign marked \\\"School Crossing\\\" would have little meaning during the summer vacation.\\n(d)\\nNext, the appellants contend that Raschka was negligent in not sounding his horn. In light of the fact that the evidence established that the appellee first saw the boy when he was \\\"about two car lengths back,\\\" the absence of any sounding of the horn could not be considered as a proximate cause of the accident. As indicated in our per curiam opinion in Bess v. Quinn, 231 Md. 540, 542, 191 A. 2d 243, 244, where a boy darted out between two parked automobiles: \\\"If there had been time to blow the horn when he saw Michele's head, the warning would have been futile in view of the child's running and the immediacy of the impact.\\\" We conclude that Raschka was not negligent in devoting his energy to stopping his automobile. See Mumford v. United States, supra.\\n(e)\\nThe Alinas' fifth contention is that the appellee was negligent in driving an automobile with defective brakes at the time of the accident. They urge that the forty-nine feet of skid marks left only by the left rear tire was sufficient evidence to allow this issue to go to the jury. However, they offered no expert testimony and we conclude that the lower court correctly refused to permit a jury to speculate on the effectiveness of the vehicle's brakes on a road surface that was soft from the heat and slightly crowned. Raschka testified that his brakes had been inspected approximately one month prior to the accident and that he had not had any trouble with them. Officer Witt testified that his official report concerning the accident indicated that there were no apparent mechanical defects in the appellee's vehicle.\\n(f) (g)\\nNext, the appellants urge that the appellee was negligent in not turning to avoid the collision and that he was operating his automobile in the center of the road. Both contentions lack substance. As to the first of these points the appellants are situated similarly to the unsuccessful plaintiff in Rodriguez v. Lynch, supra,, where this Court observed: \\\"Rodriguez makes much of the fact that Lynch did not swerve to the right or to the left. There is nothing in the evidence to show that either course, right or left, would have mitigated or avoided the collision.\\\" 246 Md. at 627, 229 A. 2d at 85. There was no such showing in the present case, and we hold that the lower court properly refused to permit the jury to engage in speculation and conjecture. As to the second of these points, there was no evidence produced at trial which showed that appellee's driving in the center of the road was a proximate cause of the accident. As this Court concluded in Cocco v. Lissato, supra, another case of a child darting out in front of an automobile:\\n\\\"In this particular case defendant cannot be charged with negligence for driving in the center of the road, because the fact that he was driving in the center was not the direct and proximate cause of the accident. As a matter of fact, a person darting into the road from . . . the east side of the road, would be more likely to be struck by a car traveling on the east side of the road than by a car traveling in the center, because the driver would have more chance to see him and to slow down or turn aside to avoid hitting him.\\\" 202 Md. 199-200, 95 A. 2d at 859.\\n(h)\\nFinally, appellants complain that the lower court erred in not allowing the appellee to answer the question \\\"Well, you had time to apply your brakes didn't you?\\\" Assuming, without deciding, that this question did not call for a conclusion of the witness and was proper, the court's refusal to allow an answer was at most harmless error. Our reasoning in Willey v. Glass, supra, ruling upon the admissibility of certain evidence, is apposite: \\\"its admission into evidence did not amount to reversible error because as we point out later there was offered no legally sufficient proof of primary negligence.\\\" 242 Md. at 162, 218 A. 2d at 215-16. After a careful review of the record, this Court has determined that there was a total absence of legally sufficient evidence that the appellee was driving at an excessive speed, or that he was reckless or otherwise violated the rules of the road, or that he could have avoided striking the child by the exercise of due care. Since the appellants failed to make out a prima facie case of primary negligence on Raschka's part, the lower court properly directed a verdict in appellee's favor. Willey v. Glass, Buscemi v. Bensel, Richardson v. Scott, Lenehan v. Nicholson, all supra. See Brantner v. Watkins, supra; Finlayson v. Gruzs, 222 Md. 192, 159 A. 2d 864; and Cocco v. Lissau, supra.\\nJudgment affirmed. Costs to be paid by appellants.\"}"
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+"{\"id\": \"1927967\", \"name\": \"COMMISSIONER OF MOTOR VEHICLES v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al.; THALHEIMER v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al.\", \"name_abbreviation\": \"Commissioner of Motor Vehicles v. Baltimore & Annapolis Railroad\", \"decision_date\": \"1970-04-06\", \"docket_number\": \"No. 299\", \"first_page\": \"529\", \"last_page\": \"537\", \"citations\": \"257 Md. 529\", \"volume\": \"257\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T18:49:03.293993+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COMMISSIONER OF MOTOR VEHICLES v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al. THALHEIMER v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al.\", \"head_matter\": \"COMMISSIONER OF MOTOR VEHICLES v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al. THALHEIMER v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al.\\n[No. 299,\\nSeptember Term, 1969.]\\nDecided April 6, 1970.\\nThe cause was argued before Hammond, C. J., and McWilliams, Singley, Smith and Digges, JJ.\\nDouglas R. Due for Commissioner of Motor Vehicles, one of appellants; Martin Moncarz for Edwin J. Thalheimer, other appellant.\\nRobert B. Barnhouse, with whom were Piper & Mar-burg on the brief, for The Baltimore & Annapolis Railroad Company, et al., appellees.\\n. Examples of eases in which such a \\u201cdefinite, factual incident\\u201d has been found to have been shown are Baltimore Transit Co. v. Sun Cab Co., 210 Md. 555, 562 (\\u201crocking, swaying or jiggling of the streetcar that threw the other passengers back and forth\\u201d); Baltimore Transit Co. v. Pue, 243 Md. 256, 261-262 (\\u201c[the plaintiff fell] flat on her back from a standing position, with such force that the driver said he heard her hit the floor\\u201d; \\u201cthe driver, on his own testimony, stopped the bus in the middle of the intersection from a speed of twenty-five miles an hour within a distance of half the length of the bus\\u201d); Kaufman v. Baltimore Transit Co., 197 Md. 141, 146 (dicta \\u2014 seated passenger hurled from his seat against the seat in front of him); United Railways & Elect. Co. v. Phillips, 129 Md. 328, 331 (\\u201csuch a violent jerk that it caused the passengers to scream\\u201d).\", \"word_count\": \"2505\", \"char_count\": \"14029\", \"text\": \"Hammond, C. J.,\\ndelivered the opinion of the Court.\\nThalheimer, a plaintiff below, who was injured when he fell to the floor of a bus, appeals from judgments in favor of the owner and the driver of the bus following directed verdicts at the close of the plaintiff's case. A phantom car was said by the bus driver to have been involved and the jury found for Thalheimer in his suit against the Commissioner of Motor Vehicles. The Commissioner joins Thalheimer in appealing from the judgments in favor of the owner and operator of the bus but does not seriously challenge the jury's finding that he was liable.\\nThe bus, a carrier for hire, was on a regular run and Thalheimer was a regular passenger. After it had discharged passengers at the lower level of the Terminal Building at Friendship Airport and begun its journey on what is referred to as Lower Road towards its next stop, Thalheimer started to walk from a rear seat to a front seat. The bus stopped at the stop sign facing Lower Road. Just beyond that point Lower Road, Upper Road (which runs in front of the upper entrance to the Terminal Building over Lower Road) and Service Road (which runs by the International Building and to the freight area) all merge. Upper Road comes down grade to the right of Lower Road and Service Road is to the right of Upper Road. Lower and Upper Roads are one-way, Service Road is a two-way road, and remains so after the other two fully merge into it.\\nSeeing no traffic ahead or to the right, the bus driver started up. After he had gone about forty feet, he says a small white-topped foreign car cut sharply in front of the bus from the left. The driver stopped the bus in time to avoid contact, the car kept on going, and Thalheimer fell to the floor of the bus.\\nTraffic coming down Upper Road is faced by a \\\"Yield\\\" sign and beyond the sign goes tangentially right until it straightens out on the northbound lane of Service Road. Traffic on Lower Road does likewise. Trafile on both roads is directed into Service Road by arrows painted on the merging area beyond the end of those two roads. Once on Service Road, traffic can proceed onto Elm Road (an extension of Service Road) and out of the Airport.\\nTo the left of the bus as. it sat at the stop sign at the end of Lower Road, there was a parking lot enclosed by a wire fence. Some distance beyond the end of Lower Road, and apparently not visible from the end of Lower Road, is Cedar Road, which at that time was used as an entrance to the parking lot on the left. While Cedar Road apparently was not designed as an exit from the parking lot, the airport authorities had provided for the contingency that a potential parker would find the lot closed and have to turn around and exit by installing a stop sign at the end of Cedar Road and its intersection with the merging area and signs directing a vehicle exiting therefrom to proceed in the proper direction away from the merging area.\\nAll the evidence in the case was produced by the plaintiff. The only eyewitness was the bus driver, an adverse witness, whose deposition was read into evidence. He stated that as the bus sat at the stop sign at the end of Lower Road, he looked to his right and straight ahead to see if traffic was sufficiently clear to permit him to merge. He did not look to his left \\u2014 to do so would have been \\\"unnatural.\\\" Seeing that traffic was clear, he pulled forward into the merging area. After proceeding approximately forty feet, he heard the sound of a car's muffler, or motor, which \\\"could have been off to the [left] side.\\\" He simultaneously looked to the left and downward, saw the car \\\"flash in his eye\\\" directly in front of the bus, and \\\"dynamited\\\" his brakes. The car then continued out of the Airport. The bus came to a stop directly in front of Cedar Road. The driver first stated that the car had come from Cedar Road, but later indicated that it also may have come out of Lower Road and around the left side of the bus.\\nThe other witnesses produced by the plaintiff were the plaintiff himself and the captain of the Airport police, who testified regarding the roads involved.\\nWe think the trial judge correctly directed verdicts for the owner and driver of the bus. The plaintiff in a negligence action bears the burden of establishing that it was the negligence of the defendant which caused his injuries without disclosing the intervention of any independent factor which caused those injuries. Jones v. Baltimore Transit Co., 211 Md. 423, 426. A passenger on a bus who is injured as the result of a stop of the bus establishes an inference that the stop was due to negligence of the driver where he shows that the stop was extraordinarily sudden or violent (so long as in doing so there are not shown other circumstances, besides such negligence, which necessitated the stop). Kaufman v. Baltimore Transit Co., 197 Md. 141, 146. It is, however, well settled in this State that a passenger on a bus or other common carrier who bases a negligence action on the sudden stop of the carrier cannot establish a case \\\"merely by adjectival descriptions of the nature of the stop,\\\" but rather must show in addition some \\\"definite, factual incident\\\" created by the stop which shows it to be so abnormal and extraordinary that it can be legally found to have constituted negligence in operation. Retkowsky v. Baltimore Transit Co., 222 Md. 433, 438.\\nAn examination of the record in the case at bar indicates that no such \\\"definite factual incident\\\" was shown by the plaintiff. The bus driver described the stop and its surrounding circumstances variously as \\\"quick\\\"; \\\"a dynamite stop\\\" (\\\"a quick stop would be what they call a dynamite stop\\\") ; \\\"I hit the brakes and heard a sound of a thud. There he was laying beside me;\\\" \\\"[I] heard the noise [of the car's muffler] and saw the top of that car right on me. That is why I had to dynamite my brakes to stop;\\\" \\\"I dynamited and looked at the same time.\\\" The plaintiff said \\\"he slammed his brakes;\\\" \\\"I'd just started to get up and as I started he slammed his brakes, I was holdin' on to the seat like this, and I was reachin' for the front;\\\" \\\"the way he threw his brakes on I thought I was goin' to go out the window.\\\" He further stated that neither of the two other passengers who were on the bus at the time fell off their seats or showed other signs of disturbance, and that no packages or other things were thrown around.\\nThe only part of this testimony which might be considered a \\\"definite factual incident\\\" as opposed to mere \\\"adjectival description\\\" is the fact that the driver testified that he heard the plaintiff fall with a \\\"thud.\\\" We find that such characterization standing alone is not one which necessarily is indicative of abnormality in the stop and thus not one which will permit the inference that the stop legally constituted negligence. Such a \\\"thud\\\" could be produced by any fall, violent or otherwise, particularly when the passenger fell at a point directly behind the driver.\\nHowever, even assuming that the plaintiff sufficiently proved the abnormality and negligence of the stop, there are other facts and circumstances which prevent the inference that the stop was due to the negligence of the driver. Kaufman v. Baltimore Transit Co., supra. Reasonable minds would not disagree that a driver who is confronted with the sudden appearance of another vehicle directly in front of him acts as a reasonably prudent man by stopping as quickly as possible.\\nThe appellants argue that this was an emergency which the driver himself created, since by his own testimony he admitted that he did not look to the left either prior to or during his exit from Lower Road into the merger area. From this they draw the inference of negligence sufficient to take the case to the jury, saying that had the driver looked he would have seen the car in time to bring the bus to a comfortable stop. The photographs in the record make it clear that upon stopping at the end of Lower Road the reasonable driver would be expected to look only forward and from that point the exit from Cedar Road is not even visible, if the car came from that point. Once the driver begins his exit from Lower Road into the merging area, his attention is naturally directed to the front and the right so that he may successfully avoid traffic both ways on Service Road and that going his way on Upper Road.\\nAgain, if it be assumed that the driver's failure to look to the left might constitute negligence, that negligence was not the proximate cause of the plaintiff's injuries here. The sudden entry into the direct path of the bus described by the bus driver was an intervening superseding cause of the harm to Thalheimer. Even if the driver of the bus had looked to his left and seen the phantom car \\u2014 either behind him, beside him, or at the end of Cedar Road (which are the only possible positions of the car under the testimony produced by the plaintiff) \\u2014he clearly was not bound to anticipate that the car would suddenly pull directly into his path. Jones v. Baltimore Transit Co., 211 Md. 423; Baltimore Transit Co. v. O'Donovan, 197 Md. 274; Oliver v. Baltimore Transit Co., 247 Md. 625.\\nIn Jones it was held that a verdict was properly directed for the Transit Co. in an action for injuries resulting from a sudden stop necessitated by a car, going in the same direction as the bus, suddenly cutting in front of the bus. The plaintiff contended that excessive speed of the bus was a concurrent cause of her injuries. We said (at p. 429 of 211 Md.) :\\n\\\"Appellant's own testimony shows that the sudden stop of the bus was required by a car suddenly cutting in front of the bus. There was, of course, no contradiction of this evidence. The cause of the accident clearly was the unexpected and unforeseeable action of the automobile that violated the rules of the road by invading the lane of the bus.\\\"\\nSimilarly, in O'Donovan it was held that a verdict should have been directed for the Transit Co., in an action for injuries resulting from the bus's collision with a disabled automobile at an intersection when the car, in violation of the boulevard rule, pulled into the bus's path. The plaintiff argued that the driver failed to maintain a proper lookout. Judge (later Chief Judge) Henderson said for the Court (at pp. 278-279 of 197 Md.) :\\n\\\"In the instant case we think the bus driver had the right to assume that the other vehicle, in a place of safety by the grass plot, would remain there and yield the right of way. We find no merit in the contention that the bus driver was at fault in failing to observe the automobile when it made its initial stop by the stop sign, nearly 100 feet from the point of impact.\\n\\\"The chief contention is that the bus driver failed to stop 'when it was, or should have been, apparent to him that the automobile was standing disabled ahead of him.'\\n\\\" Taking [the automobile driver's] testimony in its most favorable light, his car stopped, with its whole length blocking the eastbound lane a matter of seconds before impact.\\nBut whether it could have been stopped sooner or not, the proximate cause of the plain tiff's injury was the unexpected intrusion into or blocking of the eastbound lane by the [automobile] . It was not negligence for the bus driver to make an emergency stop under the circumstances.\\\"\\nThe appellants find solace in Baltimore Transit Co. v. Pue, 243 Md. 256, where it was found that the jury could have found that a concurring and contributing cause of the sudden stop at an intersection made by the bus driver was his failure to maintain a proper lookout. If in the case at bar the phantom car came from behind or beside the bus, Pue is distinguishable from Jones and the case at bar, in that in Pue the car which was coming west on 40th Street as the bus was coming east turned in front of the bus, necessitating the sudden stop, and had to have been seen had the bus driver looked at the road instead of the traffic light at the intersection. The bus driver in Pue never saw the car in its proper lane since his attention was centered exclusively on the traffic light he was approaching. He saw the car turning directly in front of him at the intersection just in time to avoid hitting it.\\nIf, on the other hand, the phantom car in the case at bar emerged from Cedar Road, Pue is distinguishable from O'Donovan and the case at bar in that the boulevard rule did not apply to the Pue situation. Tates v. Toney, 231 Md. 9.\\nThese reasons persuade us that verdicts were properly directed for the appellees.\\nJudgments affirmed, with costs.\"}"
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+"{\"id\": \"1930268\", \"name\": \"MARYLAND BUREAU OF MINES, et al. v. POWERS\", \"name_abbreviation\": \"Maryland Bureau of Mines v. Powers\", \"decision_date\": \"1970-06-04\", \"docket_number\": \"No. 388\", \"first_page\": \"379\", \"last_page\": \"385\", \"citations\": \"258 Md. 379\", \"volume\": \"258\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:41:00.533593+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Hammond, C. J., and McWilliams, Singley, Smith and Digges, JJ.\", \"parties\": \"MARYLAND BUREAU OF MINES, et al. v. POWERS\", \"head_matter\": \"MARYLAND BUREAU OF MINES, et al. v. POWERS\\n[No. 388,\\nSeptember Term, 1969.]\\nDecided, June U, 1970.\\nThe cause was argued before Hammond, C. J., and McWilliams, Singley, Smith and Digges, JJ.\\nCharles R. Goldsborough, Jr., Assistant Special Attorney, with whom were Francis B. Burch, Attorney General, and J. Howard Holzer, Special Attorney, on the brief, for appellants.\\nNo brief filed on behalf of appellee.\", \"word_count\": \"1902\", \"char_count\": \"11446\", \"text\": \"Digges, J.,\\ndelivered the opinion of the Court.\\nThe Circuit Court for Allegany County (Getty, J.) entered a judgment for appellee Frank T. Powers awarding him compensation for permanent partial disability caused by an occupational disease (silicosis). This judgment reversed the decision of the Workmen's Compensation Commission. The Bureau of Mines of the State of Maryland as employer and the State Accident Fund as insurer appealed.\\nThe only testimony before any of the tribunals in question was that of the appellee, Frank T. Powers. His testimony summarized reveals the following: He began working as a coal miner in 1900 at the age of thirteen. In 1918 he commenced employment with the State of Maryland, having been appointed an inspector of coal mines by Governor Harrington. In 1922 the Bureau of Mines of the State of Maryland was created and the claimant continued his duties as mine inspector under the authority of that body. His duties consisted of checking Maryland mines from the viewpoint of safety and in volved his being \\\"all over the mines in every place, six days a week.\\\" In 1949 appellee was appointed Director of the Bureau of Mines. This was primarily an administrative job, and involved his actually entering the mines very little. His visits to the mines were primarily on the occasions of disaster. He did not attempt to estimate how often these would occur. In 1957 appellee was hospitalized for two weeks. The reason for the hospitalization was pneumonia, and appellee stated he had no silicosis at that time. On December 31, 1962 the appellee, then seventy-five years of age, retired from the Bureau of Mines, performing all his duties in a satisfactory manner until his retirement, so far as the record shows.\\nAlthough he was supposed to retire at age seventy, appellee apparently received special dispensation to stay on until he was seventy-five. He retired at that time because he \\\"decided it was long enough\\\" and because the Bureau wanted to employ somebody else. Appellee specifically stated he did not retire because of any disability.\\nIn 1967 appellee learned as a result of an X-ray taken at a mobile unit that he had silicosis, and promptly filed for compensation under the occupational disease sections of the Workmen's Compensation Act. As provided in those sections, Code (1957, 1964 Repl. Vol.) Article 101, sections 27, 28, a hearing was held before the Medical Board composed of three licensed physicians, two of whom were specialists in industrial diseases and one a specialist in roentgenology. The Medical Board following his testimony found as fact that he did have silicosis, but found also that he did not contract the disease in the employ of the Bureau of Mines, and that he was not disabled. Under section 29 of Article 101 appellee filed for review of these findings by the Workmen's Compensation Commission. Although twenty-one issues were considered before the Medical Board, the Commission reviewed and answered only three: 1) Was the disease actually incurred in the employment of the Bureau of Mines? No. 2) If the claimant contracted an occupational disease is his claim barred by the statute of limitations as stated in Article 101, section 26? Yes. 3) Was the claimant exposed to the hazards of silicosis during the sixty day period referred to in section 23 (b) of Article 101 ? No.\\nAppellee then appealed the Commission's decision to the circuit court. Appellants submitted a motion for summary judgment. The trial court after reviewing the record decided the Commission's findings were unsupported by legally sufficient evidence on the first two issues, and irrelevant to the instant case on the third. The court concluded appellee was partially disabled within the meaning of Code (1957, 1964 Repl. Vol.) Article 101, section 24 and awarded him the $1,000 sum fixed under that section before the 1967 amendment. Appellee had not presented a motion for summary judgment on his own behalf, but the court as authorized by Maryland Rule 610 d (2) entered judgment against the moving party (appellee) . Although entry of the judgment was procedurally proper, we conclude the legal basis for the entry did not exist, and it must be reversed.\\nIn the ordinary workmen's compensation appeal to the circuit court, section 56 of Article 101 makes it clear the court has broad powers of review over the decision of the Commission. This review extends both to findings of fact and applicable law, although the decision of the Commission is entitled to prima facie correctness. We have held this section provides for a trial which is essentially de novo. Abell v. Goetze, Inc., 245 Md. 433, 226 A. 2d 253 (1967). However, this same section 56 provides \\\"that in all appeals in which occupational diseases are involved, the findings of fact by the Commission shall be final and not subject to review or modification by the court or be submitted to a jury.\\\" The same prohibition on review of facts is expressed in section 29 of Article 101. The intent of these provisions is to finalize the determinations of the administrative body which the legislature has deemed most qualified to make medical and other factual conclusions in these types of cases. Note, 13 Md. L. Rev. 337 (1953). The legislative judgment as to where finality should rest has fluctuated; between 1951 and 1955 the findings of the Medical Board were by statute presumed to be correct, and unreviewable if supported by legally sufficient evidence. Big Savage Ref. Corp. v. Geary, 209 Md. 362, 121 A. 2d 212 (1956). Except for this period, finality has been vested in the Commission's findings from the time occupational diseases were first included in the coverage of Article 101 in 1939 until the present time. This means the pre-195'1 law on the subject and the post-1955 law are the same. Martin Marietta v. Leius, 237 Md. 217, 205 A. 2d 792 (1965) ; Beth. Spar. Pt. Shipyard v. Bishop, 189 Md. 147, 55 A. 2d 507 (1947).\\nIn spite of the unqualified language of section 56 the findings of the Commission are not totally insulated from review by the court. We have recognized that a finding of the Commission may be reversed when it is based on an erroneous conception of the applicable law. Gower v. Davis Coal & Coke Co., 197 Md. 52, 78 A. 2d 195 (1951). Utilizing this principle our decisions have extended the power of review to the factual field because we have held \\\" [n] otwithstanding the finality which these statutes seek to confer upon such findings of the Commission, they are subject to review if not supported by substantial or legally sufficient evidence (both terms being found in the cases), and the existence of such evidence is a question of law.\\\" Duncan v. McNitt Coal Co., 212 Md. 386, 129 A. 2d 523 (1957) ; Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467, 84 A. 2d 847 (1951).\\nIn the instant case Judge Getty found it unsupportable that the Medical Board and Commission could conclude that Powers' silicosis was not incurred in the employment of the Bureau of Mines, because silicosis is unquestionably an occupational disease and the Bureau was Powers' only employer for the last forty-four years. This finding would necessarily mean that the claimant contracted the disease either before 1918 when he went to work for the Bureau, or after 1962 when he retired. After his retirement there is practically no evidence of claimant's exposure to the hazards of silica dust.\\nThe Medical Board and the Commission had before them evidence that claimant's exposure to the hazards of silica \\u2022dust was minimal after 1949; that no disability from the \\u2022disease was apparent during the entire term of claimant's employment including a five year extension beyond normal retirement; and that at the time of his hospitalization for pneumonia in 1957 the claimant stated \\\"he knew he didn't have it [silicosis] then\\\" (whether X-rays were taken at the time of the hospitalization was uncertain) . Although simple layman's logic would seem to indicate that the Circuit Court for Allegany County is more accurate than the Commission, we find the above evidence was legally sufficient to support the Commission's finding that it was not incurred during that employment. The reason for giving finality to the Commission's findings is that they and the Medical Board are able to employ precisely the sort of specialized knowledge that is not available to laymen or judges. It is clear the burden is on claimant to show that he comes within the provisions of the statute. Failure to show the occupational disease was \\\"actually incurred in his employment\\\" (section 23 (d)) precludes claimant from the benefits under the act. Martin Marietta Corp. v. Leius, supra; Mutual Chemical Co. v. Thurston, 222 Md. 86, 158 A. 2d 899 (1960). We think the words of Judge Finan in General Electric v. Cannella, 249 Md. 122, 133, 238 A. 2d 891 (1968) are equally appropriate in the instant case: \\\"We cannot agree with the construction placed on the Commission's findings by the lower court, without ignoring the finality that should be accorded such findings where supported by legally sufficient evidence and without doing violence to the clear language of Section 24 (b) of the statute.\\\"\\nOur determination here is alone sufficient to block the claimed benefits, so that it becomes unnecessary to rule on the two remaining issues. We do desire to comment, however, that despite the explicit admonitions against in adequate and unclear findings in General Electric v. Cannella, supra at 132-33, and Beechwood Coal Co. v. Lucas, 215 Md. 248, 258, 137 A. 2d 680 (1958) the truncated findings of the Commission leave much to be desired. The transcript of testimony before the Medical Board may well suffice to support purely factual findings by the Commission. Where legal questions are involved as in the statute of limitations, statements that a claim is barred without any expressed basis for that conclusion make review of such statements by the courts, even though they be entitled to make one, Gower v. Davis Coal & Coke, 197 Md. 52, 78 A. 2d 195 (1951), a pointless and frustrating exercise. Judge Getty chose to characterize the decision on limitations as unsupported by the facts. Without approving or condemning this action we note it is a risk the Commission took by failing to list any facts leading to its decision.\\nWith our determination that the facts as found by the Commission are conclusive, there existed no genuine dispute of material facts, and it was error for the trial court to grant a summary judgment for appellee, and fail to grant it for appellant.\\nSummary judgment in favor of appellee reversed. Proceedings remanded with direction to reinstate order of compensation commission. Appellee to pay the costs.\\n. The appellee listed the date of his disablement as December 31, 1962. Presumably this was the basis for awarding compensation under the old section 24. The amended section 24 (effective June 1, 1967) provides for apportioned awards in permanent partial disability cases with a ceiling of $12,500.\"}"
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+"{\"id\": \"1939280\", \"name\": \"GRAIN DEALERS MUTUAL INSURANCE COMPANY v. VAN BUSKIRK\", \"name_abbreviation\": \"Grain Dealers Mutual Insurance v. Van Buskirk\", \"decision_date\": \"1965-12-27\", \"docket_number\": \"No. 39\", \"first_page\": \"58\", \"last_page\": \"71\", \"citations\": \"241 Md. 58\", \"volume\": \"241\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:25:19.496112+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GRAIN DEALERS MUTUAL INSURANCE COMPANY v. VAN BUSKIRK\", \"head_matter\": \"GRAIN DEALERS MUTUAL INSURANCE COMPANY v. VAN BUSKIRK\\n[No. 39,\\nSeptember Term, 1965.]\\nDecided December 27, 1965.\\nThe cause was argued before Prescott, C. J., and Hammond, Marbury, Barnes and McWilliams, JJ.\\nLeonard B. Cohen, with whom -were Frank, Bernstein, Gutberlet & Conaway on the brief, for appellant.\\nJames B. Hogan, with whom were Arthur J. Hilland and Ferdinand J. Mack on the brief, for appellee.\", \"word_count\": \"3935\", \"char_count\": \"23070\", \"text\": \"Barnes, J.,\\ndelivered the opinion of the Court.\\nThe appellant, Grain Dealers Mutual Insurance Company (Grain Dealers), through an insurance broker, Finney Realty, Inc. of Martinsville, Virginia, issued an automobile policy, with a Virginia uninsured motorist endorsement effective September 30, 1961, to Earle K. Van Buskirk (Earle) who. then lived at Ferrum, Franklin County, Virginia with his wife, Victoria B. Van Buskirk (Victoria) and their minor child, a girl of seven years of age. The Van Buskirks had lived in Ferrum for about one year, Earle being employed as an electrician by the General Electric Company in Salem, Virginia.\\nThe automobile policy was effective for one year\\u2014from September 30, 1961 to September 30, 1962\\u2014and contained an endorsement entitled \\\"Family Protection Against Uninsured Motorists\\\" which obligated Grain Dealers to pay all sums to which the insured became legally entitled to recover as damages because of bodily injury or property damage caused by accident and arising out of the ownership, maintenance or use of the uninsured automobile, subject to the limits of liability, exclusions, conditions and other items of the policy. The limits of liability were for bodily injury, $15,000 for each person and $30,000 for each accident; and for property damage, $5,000 for each accident. The word \\\"insured\\\", if unqualified, was defined in relevant part to mean \\\"The named insured and, while residents in the same household, his spouse and the relatives of either; .\\\" The term \\\"insured automobile\\\" was defined in relevant part as \\\"an automobile which is registered in Virginia and which is owned by the named insured or by his spouse if a resident of the same household; .\\\" Other provisions of the endorsement will later be mentioned.\\nThe insured automobile was owned by Earle and registered in Virginia.\\nIn May of 1962, the Van Buskirk family moved to East Riverdale, Prince George's County, Maryland because Earle had obtained employment as a technical writer with ACF Industries, located near East Riverdale. The infant girl was enrolled in a nursery school in Hyattsville. Earle brought the insured automobile with him to East Riverdale.\\nOn August 27, 1962', Earle was killed in an accident while driving his automobile in East Riverdale, as a result of a head-on collision with an automobile driven by Daisy Marie Paris, who, with her husband, was insured under a policy having limits of $10,000 for one person. The automobile driven by Earle was on the right side of the highway. The automobile driven by Mrs. Paris crossed over on the wrong side of the road where the head-on collision occurred.\\nOn November 30, 1962, Ferdinand J. Mack, attorney for Victoria, wrote to Grain Dealers in Indianapolis, Indiana, and inquired whether that company would discuss Victoria's claim under the uninsured motorist endorsement. Mr. Mack enclosed Earle's death certificate and advised Grain Dealers that Mrs. Paris had been charged with manslaughter by automobile, that her trial was set for December 17, 1962 and that the company might wish to have one of its representatives attend the trial. Receipt of the letter of November 30 was acknowledged by Grain Dealers on December 11.\\nOn November 4, 1963, Mr. Mack, who theretofore had communicated with counsel for Grain Dealers in the District of Columbia, wrote Grain Dealers and enclosed a copy of the declaration in the wrongful death action of State of Maryland, to the use of Victoria, et al, against Mr. and Mrs. Paris. In the letter of November 4, Mr. Mack informed Grain Dealers that the insurance carrier for Mr. and Mrs. Paris had indicated that the Paris' only had $10,000/$20,000 coverage and that the plaintiffs looked to Grain Dealers for payment of the excess under the uninsured motorist endorsement. Mr. Mack also advised the company of service upon Mr. and Mrs. Paris, the time within which those defendants had to plead, and the granting of additional time to plead, at the request of the representatives of Nationwide Insurance Company (Nationwide), the insurance carrier for those defendants. Mr. Mack also stated:\\n\\\"To my knowledge, this is all the information that is required to be provided you under the above-mentioned. If there is any further information you desire, which we can legitimately furnish to you, please let me know immediately.\\\"\\nOn November 20, 1963, Grain Dealers acknowledged Mr. Mack's letter of November 4, enclosed drafts for $1,811 in payment of the collision claim and for $500 in payment of the Medical Payments claim, and stated:\\n\\\"We do not believe we are obligated to pay anything on the Uninsured Motorists claim until the adverse party has been found to be legally liable and the amount of the judgment has been established. Furthermore, we are not entirely satisfied that the adverse party was an uninsured motorist since he did have liability insurance coverage in the amount of $10,000 for each person and $20,000 for each accident. We have referred this claim to our Attorneys Brault and Lewis of Fairfax, Virginia. By copy of this letter, we are asking them to contact you for all further negotiations on the Uninsured Motorists claim.\\\"\\nMr. Mack, in a letter of December 27 to Grain Dealers informed the company of prior settlement negotiations with its representative, the failure of those negotiations and that \\\"appropriate action will be instituted against you at the conclusion of the pending action, to recover that portion of the judgment which is not recoverable from the defendants in the Prince George's Coitnty proceeding.\\\"\\nBefore the wrongful death case was tried, Mr. Mack after investigating the financial position of Mr. and Mrs. Paris, concluded that any judgment obtained over the amounts covered by insurance would be uncollectable. On June 2, 1964, he told Jerrold V. Powers, counsel for Nationwide and for Mr. and Mrs. Paris, that the plaintiffs would be willing to reduce the ad damnum in the declaration against the wife to $15,000. Mr. Powers then stated that Mr. and Mrs. Paris would offer no evidence in defense and .that Nationwide would pay up to $10,-000 on whatever judgment would be entered. Mr. Powers testified that in his opinion there was no defense available to the question of the liability of Mrs. Paris and the best service he could render Mr. and Mrs. Paris was to protect them against any judgment in excess of the amounts of insurance coverage. There was no agreement between counsel in regard to the amount of the judgment, so that the judgment rendered by the court could have been any amount up to $15,000, the amount of the ad damnum. The trial court rendered judgment for the plaintiffs for $15,000 and Mr. Mack advised counsel for Grain Dealers of this judgment in his letter of July 10, 1964, enclosed the docket entries, explained the lack of financial resources of Mr. and Mrs. Paris and indicated that suit would be instituted against Grain Dealers unless prompt action resulted from the company. Grain Dealers referred the matter to Maryland counsel and the case at bar was thereafter instituted by Victoria in the Circuit Court for Prince George's County against Grain Dealers. Before Judge Bowen and in this Court, Grain Dealers raised the following questions:\\n1. Was the appellee, Victoria, precluded from recovery because she failed to have Grain Dealers served with process in the wrongful death action, when the law of Commonwealth of Virginia requires such service?\\n2. Was she precluded from recovery because she settled the wrongful death action in breach of a condition of the endorsement?\\n3. Was she precluded from recovery because she failed to notify Grain Dealers that she had changed her residence from the Commonwealth of Virginia to the State of Maryland, in breach of a condition of the endorsement ?\\nJudge Bowen, sitting without a jury, in an able oral opinion, answered all of these questions in the negative and entered a verdict for the appellee Victoria for $5,000 with interest from date. Judgment absolute was entered on this verdict on February 17, 1965 and from this judgment this appeal was taken.\\nWe have concluded that Judge Bowen answered all these questions correctly and the judgment will be affirmed.\\nI.\\nUnder the statutory law of Virginia, Section 38.1-381 (b) of the Virginia Code (1964 Cum. Supp.), automobile policies issued in Virginia are required to contain an uninsured motorist endorsement. Section 38.1-381 (e) (1) of that Code then provides as follows:\\n\\\"Any insured intending to rely on the coverage required by paragraph (b) of this section shall, if any action is instituted against the owner or operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant; such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner or operator of the uninsured motor vehicle or in its own name; provided, however, that nothing in this paragraph shall prevent such owner or operator from employing counsel of his own choice and taking any action in his own interest in connection with such proceeding.\\\"\\nThe Supreme Court of Appeals of Virginia has held that the requirement of service of process is a condition precedent to recovery under the uninsured motorist endorsement and that the giving of notice of the pending action by the plaintiff did not take the place of the required service of process. State Farm Mutual Automobile Insurance Co. v. Duncan, 203 Va. 440, 125 S. E. 2d 154 (1962).\\nInasmuch as Grain Dealers was not a party to the wrongful death action in Maryland and was not served with process, the question arises as to whether the Virginia statute requiring service of process is substantive or procedural. If the provision is substantive, then the Virginia statute controls. The locus contractus is the place where the last act is performed which makes an agreement a binding contract. Sun Insurance Office v. Mallick, 160 Mid. 71, 81, 153 Atl. 35, 39 (1931). In Mallick, we indicated that the delivery of the insurance policy and the payment of the premium were the final acts which put the insurance contract in force and that the broker in Baltimore acted as the agent of the insurer in doing those acts, so that the policy was a Maryland contract and the substantive law of Maryland, as the lex locus contractus, applied. The same principle applies in the case at bar. See Galford v. Nicholas, Administrator, 224 Md. 275, 167 A. 2d 783 (1961) involving a substantive provision of law in regard to the coverage of the policy.\\nIf, however, the provision of the Virginia statute is procedural, rather than substantive, the procedure in the Maryland litigation is governed by the law of Maryland as the lex fori and not by the law of Virginia. Doughty v. Prettyman, 219 Md. 83, 88, 148 A. 2d 438, 443-444 (1959); Restatement, Conflict of Laws, \\u00a7 584, 585 and 592. See Tobin v. Hoffman, 202 Md. 382, 386, 96 A. 2d 597, 598 (1953); Eastwood v. Kennedy, 44 Md. 563, 571-572 (1876). See also Pritchard v. Norton, 106 U. S. 124, 129, 1 S.Ct. 102, 106, 27 L. Ed. 104, 106 (1882); Wells v. American Employers' Insurance Co., 132 F. 2d 316 (5th Cir. 1942); McArthur v. Maryland Casualty Co., 184 Miss. 663, 186 So. 305, 120 A.L.R. 846 (1939).\\nIt seems clear to us that the provision of the Virginia statute requiring service of process upon the insurance company is procedural, Restatement, Conflict of Laws, \\u00a7 589, and the Supreme Court of Appeals of Virginia so held in Creteau v. Phoenix Assurance Co. of N. Y., 202 Va. 641, 119 S. E. 2d 336 (1961). The Creteau case involved an automobile policy issued prior to the passage of Section 38.1-381 (e) (1). The accident happened after the issuance of the policy, but one week prior to the passage of the statute. As no service was made on the company, the insured contended that the provision was substantive and did not change the terms of the existing policy. In ruling against this contention the Supreme Court of Appeals of Virginia held that the provision was procedural, stating:\\n\\\"The amendment [Sec. 38.1-381 (e) (1) ] is procedural . [M]ere matters of procedure and remedy for their enforcement or preservation may be altered, curtailed or repealed at the will of the legislature (Page 340 of 119 S. E. 2d).\\nThe court of the forum determines according to its conflict of law rule whether the question is one of substance or of procedure, Wells v. American Employers' Insurance Co., supra; Restatement, Conflict of Laws, \\u00a7 584, but we observe that the construction of the statutory provision as procedural by the highest court of Virginia is in accord with our construction of it. Cf. McArthur v. Maryland Casualty Co., supra.\\nProcedure in Maryland is governed by the Maryland Rules of Procedure. See Maryland Rule 1. There is no procedure in Maryland for the service of process upon an insurance company not a party to the litigation, as there is in Virginia. The plaintiffs in the wrongful death action had no way to do this. They advised Grain Dealers of the pendency of the action and sent it a copy of the declaration. If Grain Dealers wished to become a party by intervention, it had ample opportunity to seek to do this.\\nEven if it be assumed, arguendo, that the procedural provisions of the Virginia Code were to be followed by the Maryland courts, the uncontradicted evidence indicates that in this case Grain Dealers has waived its right to rely upon the defense of lack of service of process. For approximately two years during the negotiations between Grain Dealers and Victoria and until the filing of the Bill of Particulars to its general issue pleas in the present case, Grain Dealers asserted that it was refusing to pay Victoria's claim for two reasons: 1) it was not obligated to pay the claim until a judgment had been obtained' against the adverse party and the amount of the judgment determined, and 2) that the adverse party was not an \\\"uninsured motorist\\\" within the meaning of the endorsement. Grain Dealers did not raise any defense of the lack of service of process until after this action was filed. Under the Maryland cases these circumstances resulted in a waiver of the defense. A similar situation arose in McElroy v. John Hancock Life Insurance Co., 88 Md. 137, 41 Atl. 112 (1898) involving a life insurance policy which required that notice of death be given within 90 days. Judge Fowler, for the Court stated:\\n\\\"The following grounds or any one of them have been declared to be sufficient to constitute a waiver of any defect in, or defense arising out of failure to duly give notice and proof of death: 'A proposal to settle' ; 'an absolute refusal to pay on the merits'; 'a denial of all liability'; 'a negotiation with the insured, without making the objection of defective proof of death.' Bliss on Life Insurance, sec. 268; Cooke on Life Insurance, p. 118. In its letter to the plaintiff the defendant, said: 'The papers in themselves are correct enough, but the company has decided not to recognize the claim under this policy.' Not a word here to indicate that its refusal to pay the plaintiff was because of want of seasonable proof of death. It is true it subsequently relied upon this defence, but when it wrote the letter of the 15th of Feb. to him it neither directly nor indirectly placed its refusal to pay upon want of proper proof of death. The letter closed thus: 'We think it might be well for you to see Mr. Thomas, and see whether Miss Dorsey is intending to enter suit as intimated in his letter. Until that matter is settled we are unable to give you any definite information in regard to this case.' The information asked for by the plaintiff was to know if the proofs of death sent by Miss Dorsey were in due form, and if not what he should do to perfect his claim. If the defendant intended to rely upon the defence it now sets up it should have said so.\\\" (Pages 149-150 of 88 Md.; page 115 of 41 Atl.).\\nThis Court cited with approval and followed the McElroy case in Fidelity & Casualty Co. v. Riley, 168 Md. 430, 438-439, 178 Atl. 250, 254 (1935). See Foard v. Snider, 205 Md. 435, 447-448, 109 A. 2d 101, 107 (1954); Eastover Stores, Inc. v. Minnix, 219 Md. 658, 672, 150 A. 2d 884, 891-892 (1959); Hill v. Benevicz, 224 Md. 79, 89-90, 167 A. 2d 104, 110 (1961).\\nThe facts in the case at bar in regard to negotiations and exchange of correspondence without reliance on the defense of lack of service, in our opinion, distinguish the case at bar on the point of waiver from Creteau v. Phoenix Assurance Co. of N. Y., supra and even from State Farm Mutual Automobile Ins. Co. v. Duncan, supra, although it should be noted that the Virginia law as to waiver as set forth in the Duncan case is by no means as broad as the Maryland law in this regard. As the waiver involved in the case at bar involves a procedural matter, the law of the forum would control in any event, as we have already indicated.\\nII.\\nParagraph (b) under exclusions in the endorsement provides: \\\"This endorsement does not apply:\\n\\\"(b) to bodily injury to an insured, care or loss of services recoverable by an insured or injury to or destruction of property of an insured, with respect to which such insured or his legal representative shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.\\\"\\nJudge Bowen found that no \\\"settlement\\\" had been reached between Victoria and Mr. and Mrs. Paris in the wrongful death case. We agree with his finding.\\nThe purpose of the exclusion in regard to settlement is to protect the company from the payment of claims which have not been determined by a court, but merely by agreement of the parties themselves. In the case at bar there was no agreement in regard to the amount of the judgment to be determined by the court in the wrongful death action. The court could have rendered a verdict for any amount up to $15,000, the amount of the ad damnum. There was no prejudice to Grain Dealers by the reduction of the ad damnum to $15,000 in an action involving facts which in the opinion of counsel, would support a verdict of between $40,000 and $50,000. Mr. Powers testified that there was no agreement as to who would receive a verdict in the wrongful death case, nor was there any agreement in regard to the amount of any verdict, except that under the pleadings, after the amendment to reduce the ad damnum to $15,000 the ver diet could not exceed $15,000. There was nothing in writing between the parties or their counsel in regard to a verdict or its amount. There was no release asked for or given. Counsel for the parties in the wrongful death action were apparently careful that there would be no settlement and, in our opinion, the trial court was clearly justified in finding that there was no settlement. Whether or not there was an agreement of settlement, and if so, what were its terms, are, upon conflicting evidence, questions for the trier of fact. John Irving Shoe Co., Inc. v. Dugan, 93 F. 2d 711 (1st Cir. 1937); Central Paper Co. v. Southwick, 56 F. 2d 593 (6th Cir. 1932); see 15 C.J.S. Compromise and Settlement \\u00a7 54, pages 784-786 and the cases of other States cited in Note 61. The evidence in the case at bar was substantially uncontradicted, but if there were any conflict in the evidence, we do not find that the trial court's finding was clearly erroneous, which is the test in considering reversal upon a finding of fact by a trial judge sitting without a jury. Maryland Rule 886 a.\\nIII.\\nGrain Dealers contends that there can be no recovery against it because it was not notified that the named insured, Earle, had moved his residence to East Riverdale, Maryland.\\nThe difficulty with this contention is that there is no provision in the automobile policy which requires that this be done. Grain Dealers seeks to find such a policy requirement by referring to the sixth declaration in the policy that the automobile would be principally garaged in Ferrum, Virginia and also to paragraph 2, under the heading \\\"Conditions\\\", in which the following appears:\\n\\\"Premium: If during the policy period the number of automobiles owned by the named insured or spouse and registered in Virginia or the number of Virginia dealer's license plates issued to the named insured changes, the named insured shall notify the company during the policy period of any change and the premium shall be adjusted in accordance with the manuals in use by the company. If the earned premium thus computed exceeds the advance premium paid, the named insured shall pay the excess to the company; if less, the company shall return to the named insured the unearned portion paid by such insured.\\\"\\nThere is also a provision in the policy called \\\"Maryland Endorsement\\\" which begins \\\"(In case this policy is written, in the State of Maryland, the following applies)\\\"\\u2014(Emphasis supplied).\\nIn our opinion, these provisions do not amount to a requirement that the company be notified of a change in address of the named insured. When the policy was issued it was intended that the automobile would be principally garaged in Ferrum and it was. There was, however, no provision in the policy forbidding the named insured from moving the automobile to another location or requiring the named insured to give the company notice of such a change. The provision in paragraph 2 under Conditions\\u2014above quoted\\u2014applies to additional automobiles owned by the named insured or spouse and registered in Virginia. This never occurred and obviously there would be no change in the premium when there was no additional ownership of automobiles registered in Virginia. The Maryland Endorsement provision clearly does not apply as the policy was written in Virginia and not in Maryland.\\nIt is well established that the provisions of insurance policies, prepared as they are by the insurance companies, are, in the case of ambiguities, to be construed strictly against the company preparing the policy and in favor of the insured. Ebert v. Millers Fire Insurance Company, 220 Md. 602, 155 A. 2d 484 (1959). Although as we have indicated, it is clear to us that the terms of the policy relied on by Grain Dealers do not amount to a requirement that the company be notified of a change of address of the named insured, even if it be assumed, arguendo, that the policy is ambiguous in this regard, such an ambiguity would be resolved against the company and in favor of the insured.\\nJudgment affirmed, the costs to be paid by the appellant.\"}"
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+"{\"id\": \"1950821\", \"name\": \"THOMPSON v. WARDEN OF MARYLAND HOUSE OF CORRECTION\", \"name_abbreviation\": \"Thompson v. Warden\", \"decision_date\": \"1957-12-24\", \"docket_number\": \"H. C. No. 47\", \"first_page\": \"604\", \"last_page\": \"605\", \"citations\": \"215 Md. 604\", \"volume\": \"215\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:41:27.570436+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Bruns, C. J., and Hbndbrson, Hammond, Prbscott and Hornby, JJ.\", \"parties\": \"THOMPSON v. WARDEN OF MARYLAND HOUSE OF CORRECTION\", \"head_matter\": \"THOMPSON v. WARDEN OF MARYLAND HOUSE OF CORRECTION\\n[H. C. No. 47,\\nSeptember Term, 1957.]\\nDecided December 24, 1957.\\nBefore Bruns, C. J., and Hbndbrson, Hammond, Prbscott and Hornby, JJ.\", \"word_count\": \"210\", \"char_count\": \"1228\", \"text\": \"Hammond, J.,\\ndelivered the opinion of the Court.\\nApplicant for leave to appeal from a denial of a writ of habeas corpus by Judge Sodaro of the Supreme Bench of Baltimore City was sentenced on March 13, 1957, to five years in the House of Correction for robbery. He complains that the trial court would not appoint a lawyer for him and that he was denied the opportunity to contact certain witnesses in his behalf, and that these two denials combined to render his trial unfair and a violation of his constitutional rights.\\nThompson does not allege any facts which show that for want of counsel an ingredient of unfairness operated actively in the process which resulted in his confinement. Bergen v. Warden, 201 Md. 641, 642; Selby v. Warden, 201 Md. 653, 654. The denial of the opportunity to obtain some witnesses, although a proper ground on appeal, relates to the regularity rather than to the validity of the proceedings and likewise cannot be raised on habeas corpus. Gayles v. Warden, 212 Md. 641, 642.\\nApplication denied, with costs.\"}"
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diff --git a/md/1950945.json b/md/1950945.json
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+"{\"id\": \"1950945\", \"name\": \"NEWARK TRUST COMPANY v. TRIMBLE et ux.\", \"name_abbreviation\": \"Newark Trust Co. v. Trimble\", \"decision_date\": \"1958-02-26\", \"docket_number\": \"No. 118\", \"first_page\": \"502\", \"last_page\": \"507\", \"citations\": \"215 Md. 502\", \"volume\": \"215\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:41:27.570436+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\", \"parties\": \"NEWARK TRUST COMPANY v. TRIMBLE et ux.\", \"head_matter\": \"NEWARK TRUST COMPANY v. TRIMBLE et ux.\\n[No. 118,\\nSeptember Term, 1957.]\\nDecided February 26, 1958.\\nThe cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\\nLeonard H. Lockhart, with whom was Charles M. Huester on the brief, for appellant.\\nNo brief and no appearance for appellees.\", \"word_count\": \"1616\", \"char_count\": \"9091\", \"text\": \"Bru\\u00f1e, C. J.,\\ndelivered the opinion of the Court.\\nNewark Trust Company, the appellant, obtained a judgment by confession in the Circuit Court for Cecil County on August 22, 1956, against the appellees, Samuel B. Trimble and Gladys Trimble, his wife. Judgment was entered by the Clerk and summons was duly served on the appellees on August 24, 1956, both in accordance with what is now Rule 645 of the Maryland Rules (then G.R.P.P., Part Three, II, Rule 1). The judgment was based upon a confessed judgment note purportedly executed by the defendants-appellees, dated April 27, 1956, payable to the order of one Richard Smith at the Newark Trust Company, in monthly instalments beginning one month after date, with a provision for acceleration of the unpaid balance upon default in the payment of any instalment. The note was endorsed, without recourse, by Richard Smith to the Newark Trust Company. It was in printed form, and the signatures of the makers were witnessed by Smith. The amount of the judgment was the face amount of the note, $708.00, plus interest and attorney's fee. No pleading was filed by the defendants within thirty days after service, and on January 25, 1957, a fi. fa. was issued on the judgment. As a result, property owned by the defendants as tenants by the entireties was advertised for sale on March 9, 1957.\\nOn March 1, 1957, the defendant, Gladys Trimble, acting on behalf of both defendants, signed and filed, through counsel, a motion to strike out the judgment and a request for immediate hearing, based upon a claim that the signatures to the notes were forgeries and a further claim that the defendant Samuel B. Trimble was then in an insane asylum and had been insane at the time of the making of the note. The matter was set for hearing on March 7, 1957. On that date counsel for the plaintiff asked for a postponement, which was granted, and at the same time the Circuit Court stayed the sale pending determination of the motion to strike out the judgment.\\nThe matter came on for hearing on June 7, 1957, and further hearings were held on June 13 and June 19, 1957. On the latter date the Circuit Court entered an order striking out the judgment, preserving all liens and allowing the defendants fifteen days to plead. On July 2nd they pleaded forgery and the general issue. (There was no plea of insanity.) On July 16, 1957, the plaintiff appealed from the order of June 19th.\\nThe record contains no transcript of proceedings at the hearings. We were informed by the appellant's counsel at the argument in this Court that there was no court stenographer available at the time and hence there is no stenographic record. The Judge who heard the matter in the Circuit Court retired from office within a day or two after the hearing of June 19th, and no statement or certificate of what transpired at the hearing was presented or requested.\\nThe appellant asks us to reverse the order striking out the judgment. It urges that the appellees, who had due notice of judgment and full opportunity to contest it are now es-topped from attacking it except for fraud, mistake, duress, surprise or coercion in the obtention of the judgment; and it further urges that, even if the signatures to the note were forgeries, this alone would not supply the showing necessary to set aside the judgment. The appellees did not appear in this Court and filed no brief.\\nOur present Rule 645 with regard to the entry of a judgment by confession and its requirement for the service of summons on the defendant and its allowance of thirty days within which to move to strike out such a judgment are the outgrowth of the hardships upon defendants in such cases, which sometimes resulted previously from lack of notice and the consequent lack of an opportunity to interpose defenses before such a judgment became enrolled.\\nIt is true, as a general proposition, that one who has a full and free opportunity to be heard, but who elects to stand mute and so to permit judgment to go against him, is bound. Moss v. Annapolis Savings Institution, 177 Md. 135, 8 A. 2d 881. Prior cases have established the rule that \\\"after a judgment is enrolled it is no longer within the breast of the court and cannot be properly stricken out, except upon allegation and proof of fraud, surprise, deceit or irregularity, and unless it appears that the party has acted in good faith and with ordinary diligence\\\" and that the defendant \\\"must also show that he has a meritorious defense to the cause of action.\\\" Adelburg v. Stryjewski, 200 Md. 346, 89 A. 2d 592. See also, Hamburger v. Standard Lime & Stone Co., 198 Md. 336, 84 A. 2d 74; Harvey v. Slacum, 181 Md. 206, 29 A. 2d 276; and Pioneer Oil Heat, Inc. v. Brown, 179 Md. 155, 16 A. 2d 880. Our present Rules 625 and 645 state the rule as to reopening judgments in somewhat different terms.\\nHowever, in the absence of any record of the evidence adduced at the hearing or hearings on the appellees' motion to strike out the judgment by default, we are in no position to pass upon the correctness of the Circuit Court's action. If we grant that the allegations contained in the appellees' motion did not fully meet the tests set forth in the cases above cited, we cannot overlook the freedom with which amendments are allowed (Rule 320 of the Maryland Rules), nor can we assume that no sufficient showing was made at the hearing to warrant the trial court's action. In the absence of any evidence we cannot tell what excuse for delay the appellees may have asserted or what information, if any, as to the alleged forgery, or tending to put the appellant on notice thereof, the appellant may have had prior to obtaining the judgment by confession. As to forgery or knowledge thereof, in Denton National Bank v. Lynch, 155 Md. 333, 142 A. 103, it was said (155 Md. at 340) : \\\"If the appellant had forged the notes in this case upon which the judgment was entered, it would not be denied, we think, that the judgment was fraudulently obtained. This being so, it is appro priate to inquire what would be the effect thereon if it were shown that the notes, though not forged by the appellant, were forged by another and that fact made known to the plaintiff before the entry of the judgment thereon. The effect upon the defendant would be the same in either case, and if it were necessary in this case to apply the rule, we are inclined to think that the defendant would be entitled thereunder to the relief sought.\\\"\\nOn the record before us, we cannot determine whether the Circuit Court acted correctly or incorrectly in striking out the judgment. We therefore feel constrained to dismiss the appeal pursuant to Rule 835 a 2, Rule 835 b (5) and Rule 828 b 1 (b) of the Maryland Rules. It seems evident that the appellant proceeded with the hearing despite the absence of a stenographer to record the proceedings. The right to a stenographic record can be waived in a criminal case, even though such a waiver may preclude appellate review of the evidence. Banks v. State, 203 Md. 488, 102 A. 2d 267. We think that such a waiver may also be made with like effect in a civil case. See Hayes v. Wills Dairy, Inc., 184 Md. 672, 42 A. 2d 669, in which, under the practice then prevailing, the absence of a bill of exceptions certified by the trial court was held fatal to the right of the appellant to maintain an appeal seeking a review of a judgment N.O.V., despite the fact that the record included a stenographic transcript of the testimony. This Court cited Poe on Pleading & Practice (Tiffany's Ed.) Vol. 2, Sec. 313, as showing that facts might be brought up by a bill of exceptions, an agreed statement of facts, or by depositions filed by order of court, and pointed out that only the absence of a bill of exceptions was involved in the Hayes case. Since that case was decided, the necessity for a bill of exceptions has been done away with, but none of the ways of supplying the equivalent thereof which are authorized under our present rules has been made use of; nor so far as we are informed, has any attempt been made by the appellant to obtain an equivalent of the transcript.\\nThe lack of transcript and of anything else to show what evidence was produced at the hearing is unfortunate from the appellant's point of view, and the appellant's problem with regard to the record was doubtless rendered more difficult by the retirement of the trial Judge almost immediately after the hearing. Yet we cannot supply the lack of the record, nor could the Clerk of the trial court supplement the record by what is not in his possession. We cannot review a case in vacuo. Sunshine Laundry Corp. v. White, 197 Md. 582, 80 A. 2d 1; McBurnie v. McBurnie, 214 Md. 210, 134 A. 2d 78.\\nAppeal dismissed; the costs to be paid by the appellant.\"}"
\ No newline at end of file
diff --git a/md/1953986.json b/md/1953986.json
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+"{\"id\": \"1953986\", \"name\": \"JEWELER et ux. v. POTOMAC ELECTRIC POWER COMPANY\", \"name_abbreviation\": \"Jeweler v. Potomac Electric Power Co.\", \"decision_date\": \"1958-07-02\", \"docket_number\": \"No. 285\", \"first_page\": \"458\", \"last_page\": \"466\", \"citations\": \"217 Md. 458\", \"volume\": \"217\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:51:21.504656+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JEWELER et ux. v. POTOMAC ELECTRIC POWER COMPANY\", \"head_matter\": \"JEWELER et ux. v. POTOMAC ELECTRIC POWER COMPANY\\n[No. 285,\\nSeptember Term, 1957.]\\nDecided July 2, 1958.\\nThe cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\\nHerbert M. Bru\\u00f1e, and R. Edwin Brown, with whom was John E. Oxley on the brief, for the appellants.\\nRichard W. Emory, with whom were William J. McCarthy, James IT. Pugh and Venable, Baetjer & Howard on the brief, for the appellee.\", \"word_count\": \"1872\", \"char_count\": \"11001\", \"text\": \"Hammond, J.,\\ndelivered the opinion of the Court.\\nThis appeal from a judgment on a jury's inquisition in a condemnation case was argued with that in Potomac Electric Power Company v. Birkett, 217 Md. 476, recently decided, and presents different aspects of some of the points there decided. Appellants in this case argue that the Potomac Electric Power Company (Pepeo) did not establish proof of its right of eminent domain in Maryland, did not show proper corporate authority to institute the condemnation proceedings or to take a fee simple title to the land sought to be condemned, did not show approval of the Public Service Commission for the extension of its lines, as well as that the form of inquisition was improper and the trial court erred in deciding as a preliminary matter that Pepeo was justified in taking a fee rather than an easement.\\nPepeo replies that its right to condemn land in Maryland was conceded and the requirement that it be shown was waived and that the other objections of appellants are captious and unsubstantial.\\nWhen we decided in the Birkett case that Pepeo had the right of eminent domain in Maryland and that it was proper for the court to decide questions of law in condemnation cases in advance of trial, the heart was cut out of appellants' defense to Pepco's taking of their lands in this case. The verdict of the jury was substantially in excess of the highest estimate the experts put on the land taken, and appellants do not claim that the amount of the award was too low. Their quarrel is with the right to take the, land at all, and, if the taking is inevitable, that a fee rather than an easement was condemned. Pepco's petition to condemn alleges that it was \\\"authorized by law to acquire by purchase or condemnation property or rights necessary for use in connection with the transmitting or selling of electricity Appellants answered that they \\\"neither admit nor deny\\\" those allegations and called for \\\"strict proof thereof.\\\" Pepeo says that under Maryland Rule 372 b, appellants' failure to deny the right to condemn makes the averment of that right deemed \\\"to be admitted.\\\" The landowners say that the rule applies only to equity and that condemnation proceedings are subject to the rules governing actions at law under Code, 1957, Art. 33A, Sec. 4. We find it unnecessary to decide the point. The failure to deny the right of condemnation is significant as indicating that appellants had no real doubt that Pepeo had the power of eminent domain. More important, we find the record to show that appellants did in fact waive proof of this right of Pepeo. That such a waiver was not without the contemplation of the condemnation article at the time the case came to issue is shown by the provision of Sec. 3 of Art. 33A, as the section then read, that upon failure to make timely answer a defendant \\\"shall be regarded as in default, so far as the right of condemnation is concerned.\\\"\\nIn the case before us a pre-trial conference was held on June 4 and another on June 7. At the second conference, Judge Lawlor told counsel for appellants that her notes showed that he had stipulated at the June 4th meeting that Pepeo had the right of eminent domain in Maryland. When the reply indicated that he thought he had not made this concession, Judge Lawlor told him several times that if she were mistaken, he would have an opportunity to make an issue of the point. The ensuing colloquy makes it clear that appellants' counsel did not question the fact that Pepeo had the right of eminent domain but rather went to the point of whether it must prove the necessity of condemning the land in question and the necessity of taking a fee rather than an easement. The conference of June 7 was called to decide, or to arrange for decision of, the latter question. The record in the Birkeit case shows that when Judge Anderson said that: \\\"In the Jeweler case there is no question as to the right to condemn counsel for Pepeo, in the presence, and with the acquiescence, of counsel for appellants in this case, replied: \\\"No, your Honor, in the Jeweler case Mr. Brown said he did not question our power to condemn; he questioned the necessity but not the corporate power.\\\" (We may take notice of the record in other cases that have been before us. Snodgrass v. Stubbs, 192 Md. 287; Fletcher v. Flournoy, 198 Md. 53, 60-61.) Subsequently, in the Birketl case the landowners, by the same lawyer who represented appellants, amended their answers to deny specifically the corporation's right to condemn. We find confirmation of our conclusion that the point was waived in the present case in the failure of the landowners to so amend or otherwise to act on Judge Lawlor's invitation to put the matter in issue, if they so desired.\\nAppellants moved for a directed verdict at the close of Pepco's case and at the close of the whole case, in part on the ground that Pepeo \\\"has failed to show any compliance with any statute or law of the State of Maryland authorizing it to condemn Judge Lawlor denied the motions, we think properly, because Pepco's right of eminent domain in Maryland had been conceded and the necessity of proving it waived by appellants.\\nThere is no substance to the landowners' contention that the agents of Pepeo, who instituted and prosecuted the case against them, did not prove proper corporate authorization for so doing or the necessity of condemning their lands and of taking a fee rather than an easement. Pepeo showed that its planning division makes studies of the necessity for expanding its system; that its decision was that the project here involved was necessary; that, there was substantial support for this decision in testimony that much additional electric power would be needed in the years ahead for the utility and convenience of the public in Washington and surrounding areas; and that Pepeo must provide that additional electricity; that after the details of a proposed expansion are worked out by the engineering department and the route of transmission and the lands needed are designated by the real estate department, the whole proposal \\\"is submitted to the senior vice-president, who in turn submits it to the board of directors for final approval.\\\" The petition for condemnation was signed by the senior vice-president. In Realty Improvement Co. v. Consol. Gas Electric Lt. & Power Co., 156 Md. 581, 586 the. Court rejected arguments similar to those made by the appellants here, saying: \\\"As to the third ground, a lack of authority from the condemning corporation itself to its officers who initiated the proceedings, assuming that the landowner can make an objection on that ground, the bylaws of the corporation, introduced in evidence, give sufficiently broad power for this to the president of the corporation, and the record contains a subsequent express ratification of this particular condemnation proceeding in a resolution of the executive committee of the corporation. And the whole project is clearly shown to have been one decided upon and initiated by the corporation. There is no basis for a finding of lack of authorization of the company's agents and attorneys.\\\" We think the quoted language is applicable here, and, as in the case cited, Pepeo subsequently introduced evidence of explicit ratification of what had been done in resolutions of its board of directors authorizing condemnation of the Jeweler property, in order to make it abundantly clear that its officials, in filing the petition, had acted in accordance with its procedures and with authority.\\nThe argument that the appellee had not obtained permission from the Public Service Commission to construct the proposed transmission facilities for which appellants' land is needed, is not seriously pressed. The only statutory provision relied on is Code, 1957, Art. 78, Sec. 24 (a), providing that \\\"Hereafter, no public service company shall exercise any franchise granted by law except to the extent authorized by the Commission.\\\" That this section has reference only to the exercise of a franchise, not previously exercised, to use the streets or roads of a political subdivision for its lines, is indicated by subsection (d) of Sec. 24, which says that no authority shall be granted under subsection (a) \\\"unless the company has received the required consent of the proper local authorities the reference presumably being to the local consents required by Code, 1957, Art. 23, Secs. 166 and 167. In any event, as was noted in the Birkett case, the Public Service Commission in 1953 authorized Pepeo to exercise in Montgomery County all franchise rights it had obtained from the Great Falls Power Company, and those rights included that of eminent domain for the construction of transmission lines.\\nAppellants' attack on the inquisition has two thrusts. The first challenges the right and propriety of Pepeo (a) condemning the fee title of the strip taken from the landowners while at the same time giving back, as a matter of grace, certain rights to the landowners, and (b) condemning the easement of cutting and trimming trees lying beyond the strip' to be taken. The trial court clearly and explicitly instructed the jury that it was to allow the fee simple value of the land taken and the value of the easement of cutting and trimming without taking into account, in appraising the damages, the fact that the appellants would be allowed certain uses of the land after the taking. The amount of the verdict leaves no doubt that the jury fully valued both takings. In any event, no objection was made to the charge on these points, and, under the rules, they are not open to consideration on appeal. The second attack is on the inquisition as not showing (1) that appellants' lands were being taken for public use, and (2) the purposes for which the land was being condemned. These objections were made for the first time some five months after the inquisition had been submitted to the jury and, like the alleged defects in the charge, cannot be considered on appeal, under Maryland Rules 560 b, 554 a, 554 d, and 554 e.\\nAs the Birkett case decided, there was no error on the part of the trial court in deciding preliminarily, as a question of law, that Pepeo had the right to take a fee rather than an easement. On the merits, the testimony leaves no doubt that Pepeo showed the necessity for taking the fee so that this assignment of alleged error cannot help appellants.\\nThe record reveals no prejudice to the landowners, and the judgment will be affirmed.\\nJudgment affirmed, with costs.\"}"
\ No newline at end of file
diff --git a/md/1957840.json b/md/1957840.json
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+"{\"id\": \"1957840\", \"name\": \"ARUNDEL CORPORATION v. JASPER\", \"name_abbreviation\": \"Arundel Corp. v. Jasper\", \"decision_date\": \"1959-04-15\", \"docket_number\": \"No. 199\", \"first_page\": \"519\", \"last_page\": \"531\", \"citations\": \"219 Md. 519\", \"volume\": \"219\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:05:57.924685+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ARUNDEL CORPORATION v. JASPER\", \"head_matter\": \"ARUNDEL CORPORATION v. JASPER\\n[No. 199,\\nSeptember Term, 1958.]\\nDecided April 15, 1959.\\nThe cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\\nWilliam C. Holland, for appellant.\\nI. Duke Avnet, with whom were Avnet & Avnet and Martin Moncars on the brief, for appellee.\", \"word_count\": \"3826\", \"char_count\": \"21626\", \"text\": \"Horney, J.,\\ndelivered the opinion of the Court.\\nThis is an appeal from a judgment entered by the Superior Court of Baltimore City on the verdict of a jury in favor of Frank W. Jasper (Jasper or employee) against the Arundel Corporation (Arundel or employer). The action involved an injury sustained by Jasper from a fall on board a dredge belonging to Arundel. The suit was brought under the provisions of 46 U. S. C. A., \\u00a7 688, usually referred to as the Jones Act. The first count alleged negligence under the Jones Act. The second charged unseaworthiness under the general maritime law.\\nOn July 29, 1957, the employee was working as an oiler on the dredge Governor Herrick. The employee\\u2014because he disregarded the old sea adage: \\\"One hand for the ship and one for yourself,\\\" which he probably had never heard of\\u2014 was injured when a loose and slippery step of a ladder tilted while he was descending to the lower engine room, causing him to fall to the deck below and injure his back. There was evidence from which a jury could find that the employer was negligent in allowing the ladder to remain in a dangerous condition.\\nThe Governor Herrick was a non-registered, non-self-propelled dredge, approximately 132 feet long and 52 feet wide, with a 12-foot draft at the bow, and a 10-foot 6-inch draft at the stern. It contained steam-driven machinery for the purpose of operating the dredging bucket and equipment. It depended on tugboats for all travel except when the bucket was touching bottom, when, by exerting pressure on the bottom through the boom, it could \\\"creep\\\" a few feet and change its position. However, in over 57 feet of water the dredge could not reach bottom either to work or to move to a new position. The dredge had been built in Massachusetts in 1912. Its home port was New York City. It was towed to Baltimore in 1955. During the course of the trip down the coast, the dredge carried only a skeleton crew to keep up the steam to man the pumps and maintain the dredging machinery. After its arrival in Baltimore it had engaged in maintaining ship channels in the harbor prior to mid-July 1957.\\nOn July 15, 1957, the dredge commenced work on the Baltimore Harbor Tunnel Project and was thus engaged on July 29, 1957, the date of the accident. At that time the dredge was digging backfill sand off of Wagner's Point for use in covering the newly laid tubes of the tunnel. The dredge would transfer the silt or sand dug from the bottom to scows which would dump the material on the tubes. While so engaged, the dredge was approximately 600 feet from shore in about 14 feet of water.\\nThe employee was employed on 8-hour shifts. He lived at his home in Baltimore and traveled each day to the dredge by means of a crewboat. He never slept on the dredge although there were quarters on board for the crew. He would eat at the crew's mess when a mealtime occurred during the course of his shift but he paid for such meals. He had worked for the employer for approximately eighteen months prior to the accident. Originally a handyman, he had engaged in substituting for deckhands who were off duty, but after a layoff, he began working as an oiler on the Governor Herrick as well as the dredge Maryland. During the entire period he had worked only in Baltimore Harbor. Prior to then he had been a truck driver and had never worked on the water. He did not have seaman's papers. His duties as an oiler consisted of oiling the dredging machinery in the engine room. He took his orders from the chief engineer. If the dredge were to be moved to another location outside Baltimore, he could accompany it as part of the skeleton crew which was usually drawn from the older, more experienced crew members. His duties, then, would be merely to help keep the steam up for the pumps.\\nTitle 46 U. S. C. A., \\u00a7 688 [the Jones Act] provides in part:\\n\\\"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply\\nA seaman may institute an action under the Jones Act in a state court for the negligence of his employer resulting in personal injury. If he does, he would have a right of trial by jury, and all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees apply as if suit had been brought in a Federal court. The seaman has the burden of proving negligence, but\\u2014since the doctrine of comparative negligence is applicable\\u2014his contributory negligence would only subject him to a reduction of the damages allowed in proportion to the amount of the negligence attributable to him. The seaman is also excused from any assumption of risk. Curtis Bay Towing Co. v. Dean, 174 Md. 498, 199 A. 521 (1938); Farrell Lines, Inc. v. Devlin, 211 Md. 404, 127 A. 2d 640 (1956).\\nThe employer contends that the employee was not a seaman within the purview of the Jones Act, and that his remedy is limited to the Longshoremen's and Harborworkers' Compensation Act [33 U. S. C. A., \\u00a7 901-950]. In 1926, the Supreme Court in International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926), held that a longshoreman in the employ of a stevedoring company was a seaman and was entitled to recover under the Jones Act, since the work performed by such men was a maritime service formerly performed by a ship's crew. Flowever, in 1927, the Longshoremen's and Harborworkers' Compensation Act was enacted. This act specifically excluded the \\\"master or member of a crew\\\" of a vessel. 33 U. S. C. A., \\u00a7 903 (a) (1). Thus, this act restricts and limits the scope of the Jones Act, by means of negative implications, to seamen who are also either masters or members of a crew of a vessel. See South Chicago Co. v. Bassett, 309 U. S. 251 (1940); Carumbo v. Cape Cod S. S. Co., 123 F. 2d 991 (C. A. 1st Cir., 1941). In these and in subsequent cases the courts developed three tests to determine whether a seaman was to be entitled to the benefits of the Jones Act: (i) that there be a vessel in navigation; (ii) that there be some more or less permanent connection with that vessel; and (iii) that the employee be aboard primarily to aid in navigation. Carumbo v. Cape Cod S. S. Co., supra; Wilkes v. Mississippi River Sand & Gravel Co., 202 F. 2d 383 (C. A. 6th Cir., 1953), certiorari denied, 346 U. S. 817 (1953); Nelson v. Greene Line Steamers, 255 F. 2d 31 (C. A. 6th Cir., 1958), certiorari denied, 358 U. S. 867 (1958).\\nThe Bassett case, supra, stated that whether or not an employee is \\\"a member of a crew\\\" turns on questions of facts and that, if a finding on this question has evidence to support it, the finding is conclusive. This decision, however, appears to have been temporarily narrowed by the Supreme Court in Swanson v. Marra Bros., Inc., 328 U. S. 1 (1946), which upheld the dismissal of a longshoreman's complaint by stating that recovery is available under the Jones Act only \\\"to the members of the crew of a vessel plying in navigable waters,\\\" and in Desper v. Starved Rock Ferry Co., 342 U. S. 187 (1952), where it was held that a petitioner was not a seaman despite the finding of the jury in the District Court that he was in that category.\\nNevertheless, in Summerlin v. Massman Const. Co., 199 F. 2d 715 (C. A. 4th Cir., 1952), where the facts were quite similar to the facts in the instant case, Judge Soper for the Court, ruled that a fireman on a floating derrick anchored in the York River and pouring concrete into forms incident to building a bridge across the river could be considered to be a seaman under the Jones Act. In the Summerlin case the floating derrick\\u2014which had no sleeping quarters for the crew members\\u2014had to be moved in the water from time to time to facilitate the construction of the bridge since it had no motive power of its own. The District Court, at a hearing on the pleadings under a stipulated statement of facts, found that the injured fireman was not a seaman or a crew member of a vessel engaged in navigation on navigable waters. But the Circuit Court reversed and remanded the case because it found the exact opposite.\\nAnd in Texas Company v. Gianfala, 222 F. 2d 382 (C. A. 5th Cir., 1955), the decedent was a boilerman working aboard a submersible drilling barge which was resting on the bottom of a bay. The barge was moved from one location to another about once a year. The duties of the decedent consisted of firing the boilers and, in the event that the barge was moved, of opening the valves that raised it. The facts were uncontroverted. The jury returned a verdict for the widow of the decedent. The Court of Appeals of the Fifth Circuit reversed, holding that the evidence was insufficient to justify such a finding in that the decedent was a member of a drilling crew and not a member of a ship's crew. The Court also held that the vessel was not in navigation. The Supreme Court reversed the Fifth Circuit in a memorandum opinion [Gianfala v. Texas Company, 350 U. S. 879 (1955), rehearing denied 350 U. S. 960 (1956)], although the facts were uncontroverted. In so doing, the Supreme Court cited the Bassett case, supra, the Summerlin case, supra, the Wilkes case, supra, and the Gahagan case, infra.\\nThe Supreme Court, however, removed any doubt as to its position in this area in Senko v. LaCrosse Dredging Corp., 352 U. S. 370 (1957). In that case the petitioner was employed as a handyman to assist in dredging operations in a slough dug to by-pass a rocky section of the Mississippi River. The dredge was never moved during the course of the petitioner's employment, although it was moved from time to time as the work progressed. The petitioner was a member of the Common Laborers' Union which sent him to the defendant dredging company as a laborer. His duties entailed carrying supplies from the shore to the dredge, cleaning up the dredge, filling the water cooler, cleaning the lights and placing' them when the construction work continued at night, and taking soundings to measure the amount of silt pumped from the slough. He lived at home and worked an eight-hour shift. He was injured by the explosion of a coal stove while he was placing signal lanterns from the dredge on the river bank. The jury returned a verdict for the petitioner, but this was set aside by the Illinois Appellate Court on the ground that there was insufficient evidence to support a finding that he was a \\\"member of the crew.\\\" The Supreme Court reversed stating that the decision of a jury is final if it has a reasonable basis, whether or not an appellate court agrees with the estimate of the jury. The Supreme Court stated at page 372:\\n\\\"It is true that the dredge w\\u00e1s anchored to the shore at the time of petitioner's injury and during all the time petitioner worked for respondent. It is also true that this dredge, like most dredges, was not frequently in transit. We believe, however, that there is sufficient evidence in the record for the jury to decide that petitioner was permanently attached to and employed by the dredge as a member of its crew.\\\"\\nAfter stating that a jury could reasonably have believed that the petitioner would have the responsibilities of a deck hand in the event that the dredge were moved, the Court stated at page 374:\\n\\\"We believe, however, that our decision in South Chicago Co. v. Bassett, supra, has not been fully understood. Our holding there that the determination of whether an injured person was a 'member of a crew' is to be left to the finder of fact meant that juries have the same discretion they have in finding negligence or any other fact. The essence of this discretion is that a jury's decision is final if it has a reasonable basis, whether or not the appellate court agrees with the jury's estimate.\\n\\\"Because there was testimony introduced by petitioner tending to show that he was employed al most solely on the dredge, that his duty was primarily to maintain the dredge during its anchorage and for its future trips, and that he would have a significant navigational function when the dredge was put in transit, we hold there was sufficient evidence in the record to support the finding that petitioner was a member of the dredge's crew.\\\"\\nIn the next term, the Supreme Court decided two more cases in this area. In Grimes v. Raymond Concrete Pile Co., 356 U. S. 252 (1958), the petitioner sought damages for injuries suffered while being transferred at sea in a Navy life ring from a tugboat to a \\\"Texas Tower\\\" which the respondents were constructing under a Government contract. The petitioner lived on the tower and kept it in condition by operating air compressors, generators and pumps. The District Court directed a verdict for the respondents, indicating its view that the evidence created a fact question on the issue as to whether the petitioner was a crew member, but holding that the petitioner's exclusive remedy was under the Defense Bases Act [42 U. S. C. A\\\" \\u00a7 1651-1654]. The Circuit Court held that the Defense Bases Act did not provide an exclusive remedy, but affirmed the District Court on the ground that the evidence was not sufficient to create a factual question as to whether the petitioner was a crew member. The Supreme Court remanded the case holding that the petitioner's evidence presented an evidentiary basis for a finding by a jury as to whether or not the petitioner was a member of the crew of a vessel.\\nIn Butler v. Whiteman, 356 U. S. 271 (1958), the decedent was employed as a laborer doing odd jobs around the wharf of the respondent. The employee disappeared after being last seen running between a barge and the tug. On the morning of the accident he had been engaged in cleaning the boiler. For some months before the accident the tug had been withdrawn from navigation because it was inoperable. During the entire year the tug had neither captain nor crew and reported no earnings. At the time of the accident the tug was undergoing rehabilitation preparatory to a Coast Guard inspection. In a short per curiam opinion the Supreme Court held that there was an evidentiary basis for the jury's findings as to (i) whether or not the tug was in navigation; (ii) whether or not the petitioner's decedent was a seaman and member of the crew of the tug within the meaning of the Jones Act; and (iii) whether or not the employer's negligence played a part in producing the decedent's death.\\nThere has been much speculation as to whether all three tests hereinbefore referred to are still required in order to decide whether a petitioner can recover under the Jones Act after the Senko decision. See Gisevius and Leppert, Modern Maritime Workers, 9 Loyola L. Rev. 1 (1958). See also the subtopic entitled \\\"The Elusive 'Crew Member' \\\" of the comment entitled \\\"Injured Harborworkers,\\\" 67 Yale L. J. 1205, 1229 (1958). At least one case seems to have decided to ignore the former requirements that there be a vessel in navigation and that the worker be aboard primarily to aid in navigation, and states that the real test is whether the claimant is more or less permanently employed aboard the vessel in a capacity which contributes to the accomplishment of her mission. Perez v. Marine Transport Lines, 160 F. Supp. 853 (E. D. La., 1958). Other cases, in form at least, seem to rely on all of the requirements, but leave the determination as to whether the petitioner had fulfilled them to the trier of the facts. Brannan v. Great Lakes Dredge & Dock Co., 91 N. W. 2d 166 (Minn., 1958); Nelson v. Greene Tine Steamers, supra. We agree that the three requirements should be considered by the jury. What tests shall be applied is a matter of Federal law.\\nIn the case now before us the employee fulfilled the tests sufficiently to enable the jury to find that he could recover under the Jones Act. The dredge was in navigable waters in Baltimore Harbor, even though it was outside the shipping lanes at the time of the accident, and was engaged in supplying fill for the tunnel which had been constructed under the ship channels in the harbor. Cf. Senko v. LaCrosse Dredging Corp., supra. The employee, who was a regular worker on the dredge'and had been for eighteen months, had a per manent connection with the dredge. And he was playing a part in the operation and welfare of the dredge. This last requirement does not mean that he must be one who can \\\"hand, reef and steer,\\\" but applies to all of the employees aboard a ship whose duties contribute to the operation and welfare of the vessel, including cooks, bartenders, musicians, clerks and oilers. See Wilkes v. Mississippi River Sand & Gravel Co., supra; Peres v. Marine Transport Lines, supra.\\nIn addition to claiming that the trial court erred in its instructions to the jury with reference to the past and future activities of the dredge and the possibility that Jasper might be employed at other times and places, hereinbefore alluded to and sufficiently answered [Senko v. LaCrosse Dredging Corp., supra], Arundel also contends that the trial court did not properly state the requirements of the law with respect to recovery under the Jones Act. It is true that the instructions did overemphasize what was necessary to support a finding of negligence on the part of the employer, a fact of which there appears to have been ample proof and was virtually undisputed. It is likewise true that the instructions with respect to the tests that must be met in order to prove that the employee was a seaman or a member of a crew were stated in a somewhat haphazard fashion. There is also no doubt that it would have been better had the court set out the essential requirements in a more logical and methodical sequence, but we have often ruled that a trial judge should not be \\\"put in a strait jacket\\\" with respect to jury instructions. If such instructions \\\"fully and comprehensively\\\" cover the question or point of law involved that is sufficient. Casey v. Roman Catholic Arch., 217 Md. 595, 612, 143 A. 2d 627 (1958), and the cases therein cited. Moreover, in the present case, we cannot overlook the fact that the trial judge was required to instruct the jury on points or questions of law, which, it is apparent, are not yet finally and completely clarified and settled.\\nIn reviewing the instructions, we find that the essential requirements were included therein. The court instructed the jury that it must find whether the dredge \\\"was a vessel engaged in work on navigable waters.\\\" Later, the jury was advised that it would \\\"have to find out what the facts are concerning this man being a member of the crew and was he acting at that time upon navigable waters,\\\" and then informed it that the Patapsco River was a navigable body of water. Still later, he properly instructed the jury that it should find \\\"that the employees on the dredge were more or less permanently attached to her and assisted in her operation while in a stationary position and could be called upon to assist when the dredge would be towed from one point to another in navigable waters,\\\" in order to find that Jasper was entitled to recover under the Jones Act. It is apparent that this last part of the instructions adequately stated the requirement that Jasper be aboard primarily in aid of navigation as the decisions clearly state. See Gahagan Const. Corp. v. Armas, 165 F. 2d 301, 305 (C. A. 1st Cir., 1948), certiorari denied, 333 U. S. 876 (1948); Senko v. LaCrosse Dredging Co., supra. Although the instructions were not copious they were not inadequate and they were properly stated.\\nFinally, there is no merit in Arundel's third contention that the admission of hearsay evidence\\u2014consisting of the somewhat humorous exchange of quips between the chief engineer and the company doctor\\u2014had prejudicially affected the amount of the verdict. During the course of the trial Jasper testified that when he was released by the company doctor he was told to report for work. He promptly telephoned the engineer and told him that he was ready to come back to work though he was still wearing a corset. The engineer informed him that the company was \\\"not running a convalescent home.\\\" When the employee returned to the doctor and told him what the engineer had said, the doctor advised him to tell the engineer that he was \\\"not running a workshop either.\\\" This \\\"relayed\\\" colloquy between two of the employees of the company instead of being inadmissible hearsay testimony was in fact admissible as \\\"verbal acts.\\\" See Bowie v. Martin, 199 Md. 58, 64, 85 A. 2d 786 (1952). Since it is assumed that the person who answers a call at his place of business is the person he purports to be, the telephone conversation of the employee, who made the call, was admissible. See Rowan v. State, 175 Md. 547, 558, 3 A. 2d 753 (1939) ; Knickerbocker Co. v. Gardiner Co., 107 Md. 556, 69 A. 405 (1908). These verbal acts did no more than show that the employee had tried to mitigate his damages by showing that the reason why he had not returned to work sooner. The admission of the testimony was not reversible error.\\nThe judgment will be affirmed.\\nJudgment affirmed, the costs to be paid by the appellant.\"}"
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+"{\"id\": \"1963233\", \"name\": \"BICHELL v. STATE\", \"name_abbreviation\": \"Bichell v. State\", \"decision_date\": \"1960-05-17\", \"docket_number\": \"No. 212\", \"first_page\": \"418\", \"last_page\": \"421\", \"citations\": \"222 Md. 418\", \"volume\": \"222\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:41:34.716876+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BICHELL v. STATE\", \"head_matter\": \"BICHELL v. STATE\\n[No. 212,\\nSeptember Term, 1959.]\\nDecided May 17, 1960.\\nThe cause was argued before Brune, C. J., Henderson, Hammond, Prescott and Horney, JJ.\\nStanley J. Schapiro for the appellant.\\nThe Court declined to hear argument for the appellee.\\nC. Ferdinand Sybert, Attorney General, Joseph S. Kaufman, Assistant Attorney General, Saul A. Harris, State\\u2019s Attorney for Baltimore City, and Dene L- Lusby, Assistant State\\u2019s Attorney for Baltimore City, on the brief, for the appellee.\", \"word_count\": \"563\", \"char_count\": \"3320\", \"text\": \"Per Curiam.\\nRobert Edward Bichell (Bichell or defendant), claiming prejudicial error in certain rulings on the evidence and that the evidence as a whole was insufficient to sustain his conyiction for conspiracy to commit larceny, seeks a reversal of the judgment and a new trial.\\nOn August 14, 1959, at about 12:30 a.m., two Baltimore City police officers apprehended three men who had been tampering with parking meters on St. Paul Street. A further investigation disclosed that other meters in the vicinity had been opened with a key. None had been damaged. Coins were found scattered on the floor of the automobile they had been driving and there was a bag of coins in the rear of the vehicle. One of the men had several dollars in nickels in his possession. A \\\"pronged key instrument\\\" was also found in the automobile and a second key capable of unlocking the meters was found on the pavement nearby where it had been dropped or thrown. The officers took the three men to the apartment of one of them, where a fourth man and two women were found. No evidence was discovered there. The six were arrested and subsequently charged along with the defendant Bichell, who surrendered himself through his attorney ten days later.\\nSeveral of the witnesses, some of them co-defendants, testified that the defendant knew of the larcenies, that he had participated in planning them, that he had made the keys used to open the meters and that he had shared in the money taken. The defendant's motion for a directed verdict was overruled. There was ample evidence to support the ruling. The knowledge, planning, key-making and sharing in the take, ascribed to Bichell by several witnesses, showing as it did a connection with the common scheme or design to steal, was, if believed, sufficient to sustain the conclusion the trial court reached that the defendant had participated in the conspiracy. Piracci v. State, 207 Md. 499, 115 A. 2d 262 (1955). Since we cannot say the court was clearly erroneous, we must affirm. Maryland Rule 741c.\\nNor do we find the trial court erred when it refused to strike out the answer to a question propounded by it concerning the area in which the pilfered parking meters were located. The objection made by one of the defendants\\u2014not Bichell\\u2014was based on the lack of responsiveness in the answer rather than the relevancy of the question asked. Since there was a probability of a connection between the area described and the defendants, the evidence was admissible. Braxton v. State, 214 Md. 370, 135 A. 2d 307 (1957).\\nThe trivial objection raised now for the first time that the court erred when in another question asked of a witness it referred to the defendant as \\\"him\\\" rather than \\\"they,\\\" not having been seasonably preserved below, was waived and may not be considered here. Rule 522 d 2.\\naffirmed.\"}"
\ No newline at end of file
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+"{\"id\": \"1965008\", \"name\": \"CUMMINGS v. STATE\", \"name_abbreviation\": \"Cummings v. State\", \"decision_date\": \"1960-12-13\", \"docket_number\": \"No. 99\", \"first_page\": \"606\", \"last_page\": \"612\", \"citations\": \"223 Md. 606\", \"volume\": \"223\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:05:56.619223+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CUMMINGS v. STATE\", \"head_matter\": \"CUMMINGS v. STATE\\n[No. 99,\\nSeptember Term, 1960.]\\nDecided December 13, 1960.\\nThe cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\\nFred B. Weis gal, with whom were Weisgal & Sollins on the brief, for the appellant.\\nRobert C. Murphy, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, Saul A. Harris, State\\u2019s Attorney for Baltimore City, and Julius A. Romano and John W. Sause, Jr., Assistant State\\u2019s Attorneys, on the brief, for the appellee.\", \"word_count\": \"1734\", \"char_count\": \"9835\", \"text\": \"Prescott, J.,\\ndelivered the opinion of the Court.\\nThe appellant was found guilty of murder in the first degree by two judges in the Criminal Court of Baltimore, and sentenced to life imprisonment in the Maryland Penitentiary. After his motion for a new trial was denied by the Supreme Bench of Baltimore City, he appealed.\\nThere is no necessity for any extended or elaborate discussion, in this opinion, as to the divisions of homicide in Maryland. The sole question raised by the appellant is a claim that the evidence produced at his trial below was insufficient to support a finding of a \\\"wilful, deliberate and premeditated killing\\\" upon his part, so as to constitute first degree murder under the Code (1957), Article 27, Section 407. He con cedes that the evidence was sufficient to support a conviction of murder in the second degree, but argues that the State failed to show that the homicide was wilful, deliberate and premeditated, as it must do, to raise the offense to first degree murder.\\nThe testimony need not be set forth at undue length; it was sufficient to support a finding of the following facts:\\nThe appellant, a father of five children, and the deceased lived with their respective spouses in the city of Chicago, and had known each other for a number of years. An intimate, clandestine relationship between them had developed. They were in the habit of taking extended automobile trips together, especially over weekends and during vacations. The appellant testified he loved her.\\nOn July 28, 1959, the deceased left Chicago with her sister, and drove by automobile to the home of relatives in the Cherry Hill area of Baltimore. The appellant had expected that he and the deceased would make the trip together, by themselves. Early on the morning after her departure, the appellant followed, alone, in his car. He drove all day and part of the night. At 11:00 P.M., he called the deceased and talked to her over the telephone. Later that night, he finally reached Baltimore, and spent the remainder thereof asleep on the front seat of his car.\\nIn accordance with arrangements made when they had talked over the phone, appellant and deceased met early the following morning at the Cherry Hill Shopping Center. She had promised to have breakfast with him, but when she arrived, she stated that this would be impossible, as she had arranged to take some children on a picnic. However, if he would eat breakfast alone, she would meet him later in the day. He was naturally disappointed. Thereafter, he waited a long time for her. \\\"It was hot. There wasn't any shade. It was miserable. I [the appellant] was disturbed. I was tired.\\\"\\nThe deceased finally reappeared shortly before 12:30 P.M., driving a station wagon, which she parked near the appellant's Cadillac. She was accompanied by Marjorie Shelter, aged 20, and a nephew, aged 10. She went to his car, and was in a \\\"bad mood.\\\" He told her he was tired and hot, and felt sick. \\\"It looked like I couldn't hardly bear it.\\\" A \\\"heated\\\" argument ensued during which she told him she was late for the picnic, and did not have time to take him to, or to show him, any place where he could stay or rest. The appellant threatened to return to Chicago, and requested the victim to give him directions. She replied that she did not want him to leave; that if he did so, he would do it on his own; and he would have to request the police for directions. He told her: \\\"If that is the way you feel, I am finished.\\\"\\nWhile this conversation was taking place between the appellant and deceased, witnesses saw the deceased return to her station wagon and start the engine. The appellant called to her, and she . returned to his car. She seemed to be angry at the appellant, and started to return to her automobile. She got a few feet from him, when the appellant took a pistol, which he had on the front seat of his car beside him, and shot her in the back through the open window of his automobile. He then opened the door, walked around it, and shot her six times more, apparently emptying the pistol without missing a single time.\\nOfficer Freeman of the Police Department had been standing about 110 feet from the scene of the shooting, and was an eye witness thereof. He immediately ran to the scene. The appellant dropped the gun on the victim's body; he offered no resistance; did not seem nervous nor angry; but was \\\"perfectly passive\\\" about the whole thing. In response to an inquiry as to why he had done the shooting, he replied: \\\"I might go to jail, but I am glad I . done it. It is a lot of things, man. It is a lot of things.\\\"\\nWhen reviewing the conclusion reached by a trial court, sitting without a jury, in a criminal case, it is not our function to determine whether we are convinced of the accused's guilt beyond a reasonable doubt; our task is to determine whether the evidence produced and the proper and rational inferences from that evidence, were-of such a nature and char acter that the trial court could fairly be convinced beyond a reasonable doubt of guilt, and the findings of fact of the trial court will not be set aside, unless clearly erroneous. Maryland Rule 741 (c); Basoff v. State, 208 Md. 643, 119 A. 2d 917; Cooper v. State, 220 Md. 183, 152 A. 2d 120.\\nWe think the evidence, as set forth above, is clearly sufficient to support the finding of guilty of murder in the first degree. In Chisley v. State, 202 Md. 87, 106, 95 A. 2d 577, the Court quoted from Hochheimer, Criminal Law (2nd Ed.), Section 347, and said that \\\"wilful,\\\" when used in a murder indictment, means there must be a specific purpose and design to kill; \\\"deliberate\\\" means there must be full and conscious knowledge of the purpose to do so; \\\"premeditated\\\" means the design must have preceded the killing by an appreciable length of time, time enough to deliberate; and, in order to justify a conviction of murder in the first degree, the trier of facts must find the actual intent, the fully formed purpose to kill with enough time for deliberation and premeditation to convince the trier of facts that this purpose is not the immediate offspring of rashness and impetuous temper, but that the mind has become fully conscious of its own design. The Court then cited several New York cases and pointed out that although the design to kill must precede the killing by some appreciable length of time, that time need not be long. If the killing be not the instant effect of impulse, if there be hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder. Practically the same language was used in the later case of Faulcon v. State, 211 Md. 249, 257-258, 126 A. 2d 858, wherein it was stated that the existence of the elements of wilfulness, deliberation and premeditation must be determined on the facts of each particular case.\\nIt does not require any extended or elaborate discussion to show that the trial judges were justified in finding that the appellant had \\\"a specific purpose and design to kill,\\\" and that he had a \\\"full and conscious knowledge of his purpose to do so,\\\" when it was shown, and admitted, that he shot the de ceased seven times with a deadly weapon at point-blank range, and then, calmly, laid the pistol on her dead body, stating: \\\"I might go to jail, but I am glad I done it.\\\" To elaborate upon something that is obvious is futile. The fact that the gun was available on the front seat beside him was one that the judges were entitled to consider and weigh. Whether he had contemplated, for some time, bodily harm to the deceased is a subjective matter not brought out in the evidence. (He claimed that it was his custom to carry the gun with him when on trips.) In any event, the judges may well have inferred that the appellant had fully formed his purpose to kill the deceased when he called her back to his car, and decided there was sufficient time between then and when he fired the shots to convince them that his actions were not \\\"the immediate offspring of rashness and impetuous temper.\\\" Or they may have decided he formed his intent to kill shortly before he discharged the first shot, and concluded that there was enough time for reflection and decision between then and when he fired the last one and laid the gun on her body, so as to constitute premeditation as that term is used in a murder indictment. In either event, the evidence is, we think, sufficient to support their finding. See Chisley v. State, supra, [appellant shot the deceased twice with a short interval between shots]; Grammer v. State, 203 Md. 200, 225, 100 A. 2d 257, [appellant saw a piece of pipe on the ground, got out of his car, picked it up, returned to the car and killed the deceased with the pipe]; Kier v. State, 216 Md. 513, 523, 140 A. 2d 896, [protracted period, during which assault continued] ; Elliott v. State, 215 Md. 152, 160, 137 A. 2d 130, [appellant, with shot gun, watched deceased approach until within range]; in all of which cases, the evidence was held sufficient to support a finding of premeditation.\\nJudgment affirmed.\\n. Medical evidence established cause of death as hemorrhage from multiple gunshot wounds and transection of the spinal cord.\"}"
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+"{\"id\": \"2003599\", \"name\": \"THE IRVINGTON REAL ESTATE CO. OF BALTIMORE CITY VS. EDWARD V. O'KEEFE\", \"name_abbreviation\": \"Irvington Real Estate Co. v. O'Keefe\", \"decision_date\": \"1897-06-24\", \"docket_number\": \"\", \"first_page\": \"665\", \"last_page\": \"667\", \"citations\": \"1 Balt. C. Rep. 665\", \"volume\": \"1\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:05:49.794583+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE IRVINGTON REAL ESTATE CO. OF BALTIMORE CITY VS. EDWARD V. O\\u2019KEEFE.\", \"head_matter\": \"CIRCUIT COURT NO, 2 OF BALTIMORE CITY.\\nFiled June 24, 1897.\\nTHE IRVINGTON REAL ESTATE CO. OF BALTIMORE CITY VS. EDWARD V. O\\u2019KEEFE.\\nGans & Haman for plaintiff.\\nRichard Bernard & Son for defendant.\", \"word_count\": \"1820\", \"char_count\": \"10267\", \"text\": \"STOOKBRIDGE, J.\\nThe bill has been filed in this case for the purpose of having a contract of sale entered into between the parties to this cause on the 16th of October, 1894, reformed, and when so reformed, then of having it specifically enforced. There is practically no question of law in the case which is controverted, only questions of fact, and the case is, therefore, one to be determined from the testimony. A bill was previously filed by this same plaintiff for the specific enforcement of the contract, which is the subject-matter of litigation in this case, which bill was, after testimony and argument, dismissed by the Circuit Court \\\"without prejudice,\\\" thus making it competent for this Court to consider the issues now presented, if the Court shall find that the contract ought to be reformed, but if not, then in view of the former determination this case would clearly be res adjud\\u00edcala.\\nWritten instruments may be reformed by a Court of Equity in cases of fraud or mistake only. There is no question of fraud in this case, but it is alleged that there is a mistake, and that the terms of this contract do not correctly represent that which was the clear understanding of the parties to it at the time that it was entered into.\\nCourts are naturally and properly loath to modify the terms of a written instrument after a long lapse of time, and therefore it is required first that the mistake be material, second that it was mutual, third that it was unintentional, and fourth that there shall have been no negligence upon the part of the party discovering the mistake, in moving for its correction. It is further required that the proof of the mutuality of the mistake sought to be corrected shall be proven, not merely by a preponderance of the testimony, but so clearly as to make the conclusion practically irresistable that the mistake alleged was in fact a mistake, and that it was the mutual mistake of both the parties.\\nThe contract of sale in this case after describing the property, declares that it is \\\"subject to the opening of streets and alleys as contemplated by Company and as to grades established by Mr. Mavin, surveyorand the bill of complaint alleges that it should read \\\"as to grades to be established by Mr. Mavin, surveyor.\\\" Thus while the' paper itself seems to refer to certain grades as already established at the time of its execution, the allegation is that it should read so as to be subject to grades to be established by the surveyor at some future time. The question is therefore presented what was the mutual understanding of the parties to the agreement in this regard at the time of its execution, on the 16th day of October, 1894. There are but two of the witnesses who testify upon this matter: Mr. John F. Williams, who was at that time the President of the present plaintiff, and who prepared the contract of sale, and Mr. O'Keefe, the defendant in the case. Mr. Williams testifies that his recollection is distinct and clear, that he and Mr. O'Keefe'discussed the matter, that he, Williams, told O'Keefe that the grades were not established, that Mr. Mavin, the engineer, was engaged upon the work, and that the contract would have to be drawn in such a way as to leave the Company in control of the grades and opening of the streets, that his purpose in drawing the contract was to leave in the Company the right to control and the power to open the streets where it saw fit, and to establish the grades, and that Mr. O'Keefe agreed to and understood clearly. This testimony is in no wise shaken by the cross-examination, but is substantially repeated with the addition that O'Keefe took the risk of the grades to be established by the Company.\\nMr. O'Keefe upon direct examination denies in general terms that anything was said at his interview with Mr. Wiliams from which he could infer that the grades in front of the property about to be agreed to be purchased by him were not established; and then, upon cross-examination, materially qualifies his denial by saying that if such a conversation took place that he did not hear it; that he paid no attention to the conversation, and that he would have signed the contract whatever was in it; and in his next answer excepts the provision with regard to grades to be established from the sweeping admission just made: then a moment later he declares that he read the contract as being subject to \\\"the grade to be established by Mavin,\\\" and in the very next answer following says his understanding was that the contract spoke of the grade as \\\"now established.\\\"\\nIt is to be borne in mind that this interview took place within about one month after the plaintiff had purchased the property, which was a very considerable tract that it was about opening up for improvement by the building of suburban cottages thereon, and the conclusion is irresistible that the witness O'Keefe told the exact truth when he testified that he -paid no special attention to the conversation with Mr. Williams, which conversation is positively testified to by Mr. Williams, and not denied by Mr. O'Keefe, and that on the 16th day of October, 1894, O'Keefe would have signed the contract whatever which had been presented to him by Mr. Williams, provided only, it contained a reasonably accurate description of the property that he desired to purchase, and stated correctly the amount of the purchase money that he had offered for it, and that in all other matters he was ready to assent, and did in fact assent, to whatever conditions the company saw fit to impose. So clear is this that the Court has no hesitation in determining that the contract should be reformed and taken so as to read as to grades to be established by Mr. Mavin, surveyor.\\nThe contract of sale already mentioned having been entered into, the plaintiff proceeded with the improvement of its property and in the course of this, at some time, which is not definitely fixed by the evidence, Mr. Mavin, the surveyor, laid out the profile of the street in front of the property sold to the defendant, and drew thereon by the direction of a general manager of the company, Mr. Joseph M. Cone, a line to indicate the grade of the street, but in so doing the surveyor protested to Mr. Cone that the grade as platted by this line would not be satisfactory, and that it should be lower in front of property sold to O'Keefe, than indicated by the line so drawn. Mr. Cone, however, preferred to see the grade laid out on the land, as it had been suggested by him. and the graders went to work and graded the land to somewhere in the vicinity of the grade as laid out by what I will call the Cone line, and then suspended operations for a time, but tlie anticipations of the engineer proving correct, this experimental grade was abandoned and the grade originally urged by the surveyor was adopted and the street graded in accordance therewith. Mr. O'Keefe has not complied with his part of the argeement of sale, and bases his refusal so to do upon the ground that the street has been graded to a greater depth in front of his property than the grade established by Mr. Mavin, surveyor, and that the result of such extra grading has been to seriously damage the value of his property. With the (piestion of damage, this Court has nothing to do.\\nAs to' the establishment of a grade, the weight of evidence is overwhelming that no grade whatever had been established at the time of the signing of the contract, on the 16th of October. Mr. O'Keefe testifies that before the signing of the paper, he called on the surveyor, and was told by him that the grade in front of his property would bo \\\"about six or seven feet,\\\" but in this he is flatly contradicted by the surveyor and all the evidence in the case tends to substantiate the testimony of the surveyor rather than that of Mr. O'Keefe. But it is further suggested that when Mr. Mavin, the surveyor, drew upon the profile plat the grade line as recommended by Mr. Cone, that such act became and was the establishment of the grade of the street at that point, by the surveyor, and that his power in that direction was exhausted and at an end. The word \\\"establish\\\" is defined by the lexicographers to mean, to settle and fix firmly, to place on a permanent footing, to make firm, stable and constant, to render valid by approval; and these definitions all imply that such act shall be done by some one having the authority to settle or render valid the specific act. Now, in this case, the contract specifies that the surveyor is the repository of this power; it nowhere intimates that it was the general manager, nor is there a scintilla of proof that Mr. Cone, as general manager, had any such authority, and even if he had, Mr. Cone distinctly testifies upon the stand that the original line was an experimental one, not determined on, but one which he hoped might be, so as to save the company additional expense in grading. There is not a particle of testimony in the case from which the Court can reasonably conclude that the line drawn by Mr. Mavin at the direction of Mr. Cone, ever received the definite, final approval of a single stockholder, officer or even employee of the company, including Mr. Cone himself, even Mr. O'Keefe, in his testimony does not throw any doubt upon this, for he seems all along to have acted purely upon assumption, his testimony constantly abounds in the expression: \\\"I took it for granted\\\" when speaking of this grade there is a vast difference between wliat he may have assumed or taken for granted and the deliberate act of the company in the definite establishment of a grade.\\nI do not find, therefore, any violation of the contract on the part of the plaintiff, as it will be reformed in accordance with the views before expressed, and it is conceded that the defendant, has not complied with its terms, and a decree for its specific performance will, therefore, be signed; 1 do not, however, regard the insurance placed by the plaintiff upon the property as a proper charge against the defendant. Costs to be paid by the defendant.\"}"
\ No newline at end of file
diff --git a/md/2003635.json b/md/2003635.json
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+"{\"id\": \"2003635\", \"name\": \"HAHN VS. LANDSTREET\", \"name_abbreviation\": \"Hahn v. Landstreet\", \"decision_date\": \"1890-04-02\", \"docket_number\": \"\", \"first_page\": \"103\", \"last_page\": \"103\", \"citations\": \"1 Balt. C. Rep. 103\", \"volume\": \"1\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:05:49.794583+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HAHN VS. LANDSTREET.\", \"head_matter\": \"CIRCUIT COURT OF BALTIMORE CITY\\nFiled April 2, 1890.\\nHAHN VS. LANDSTREET.\\nGordon \\u00e9 Sams for plaintiff.\\nlioirm & Daickmn and F. G. Sling-luff for defendant.\", \"word_count\": \"584\", \"char_count\": \"3252\", \"text\": \"DENNIS. J.\\nI am of the opinion that the executor, Landstreet, had the right to come into the Court of equity to administer the trusts imposed on him under the will of Towner. In Keplinger vs. McCubbin, 58 Md. 212, when the administrator went into equity, instead of administering the trusts under the direction of the Orphans' Court, the Court of Appeals said: \\\"He has, as such administrator and also in his own right as devisee under the will filed an original bill, to which all parties in interest are, or can be. made parties. In this bill lie prays, for reasons therein stated, that he may be allowed to administer the estate, and to execute the powers of sale under the protection and direction of a Court of equity. AVe entertain no doubt as to the jurisdiction in equity under such a bill. In the case of Eichelberger vs. Hawthorne, 33 Md. 588, the executors were empowered to sell the testator's real estate after the death of his wife, to whom he gave a life estate therein, and acting under the jurisdiction given to the Orphans' Court, they made the sale and reported the same to that Court for ratification; but it was held by this Court that they could, if they had chosen, have invoked the aid of a Court of equity and administered the trusts under its supervisory power.\\\"\\nUnder this statement of the law upon the subject, Landstreet was authorized to come into this Court for the administration of the duties and trusts imposed upon him by the will; and while the present plaintiffs may not be bound by the decree, because not parties to the suit; yet, as in the language of the Court of Appeals in the ease above quoted, they \\\"can be made\\\" parties, they must adopt that course and prosecute in that proceeding whatever rights they may have. It is conceded that the loss of the trust estate occurred after the decree assuming its administration in this Court, and for such loss, if it occurred by the trustee's default, there is a remedy against him on proper proceedings by the substituted trustee. But if, as executor, he had the right in the first instance to come into this Court for the administration of his trust the present plaintiffs cannot, as they seek to do, have the whole proceedings1 set aside as null and void. They must make themselves parties to the suit and seek their rights by proper proceedings through the substituted trustee. I am, moreover, of the opinion that whatever contingent rights the plaintiffs may have, they have no present interest in the income of the estate, under the clause of the will, which devises to their mother one-fourth of the net income, \\\"to be used for herself and children (if any during her lifetime), and thereafter the said children.\\\" The words \\\"to be used for herself and the said children,\\\" following the absolute devise to the mother, are not to be construed as creating a trust in favor of the children, but simply as an expression of the testator's1 motive for the gift. The case of In re Robertson's Trust, 6 W. R. 405, seems to be conclusive on this point. See also 33 L. R. U. S. 221; 44 L. T. U. S. 202; 14 L. R. 49.\"}"
\ No newline at end of file
diff --git a/md/2003751.json b/md/2003751.json
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@@ -0,0 +1 @@
+"{\"id\": \"2003751\", \"name\": \"MARY E. GRIFFITH VS. JOHN L. V. GRAHAM, EXECUTOR OF THE LAST WILL OF AMELIA DOYLE, DECEASED\", \"name_abbreviation\": \"Griffith v. Graham\", \"decision_date\": \"1891-07-13\", \"docket_number\": \"\", \"first_page\": \"204\", \"last_page\": \"205\", \"citations\": \"1 Balt. C. Rep. 204\", \"volume\": \"1\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Superior Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:05:49.794583+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARY E. GRIFFITH VS. JOHN L. V. GRAHAM, EXECUTOR OF THE LAST WILL OF AMELIA DOYLE, DECEASED.\", \"head_matter\": \"SUPERIOR COURT OF BALTIMORE CITY\\nFiled July 13, 1891.\\nMARY E. GRIFFITH VS. JOHN L. V. GRAHAM, EXECUTOR OF THE LAST WILL OF AMELIA DOYLE, DECEASED.\\nRichard B. Tippett & Bro. for plaintiff.\\n\\u2022 Findlay & Mackenzie for defendant.\", \"word_count\": \"1026\", \"char_count\": \"5782\", \"text\": \"STEWART, J.\\u2014\\nThis suit was brought by the plaintiff against the defendants as executor of the last will of Amelia Doyle, deceased. The account filed with the declaration is made out against the estate of Amelia Doyle, John Y. L. Graham, executor, and on its face purports to be for nursing deceased and attention during sickness. The affidavit sets forth that there is justly due and owing by the defendant, as executor of Amelia Doyle, deceased, the sum stated in the account annexed.\\nThe defendant duly appeared by counsel, but having failed to file a plea with affidavit as required by Section 167, of Article 4, of the Code of Public Local Laws, judgment by default for the amount of the claim was entered and extended against the defendant as executor of Amelia Dorsey, deceased, on 27 May, 1891. Immediately thereafter, the defendant moved to strike out the judgment by default and the extension of the judgment, for various reasons set forth in the motion. It is evident from an examination of the pleadings, that the judgment by default in this case was improperly entered.\\nThe declaration and affidavit should agree, but in this case it would be in vain to find out from reading the one, that services rendered the deceased testatrix were involved in the suit; while in reading the other, it is equally vain to discover that the defendant is in any way connected with the services for which suit is brought, except in his representative character. Each of the six counts in the declaration sets forth transactions with the defendant, while the affidavit alleges that the services were rendered to a person, now deceased, of whose last will the defendant is executor. In a case of this character, the Code of Public General Laws has made provision (Art. 75, Sec. 96) that causes of action may be stated against executors and administrators in the same manner as if they were the original parties thereto, except that proper words must be used to show that the claim- was against the deceased in his lifetime. The only count in the declaration on which a recovery could be had is the second, \\\"for work done and materials furnished for the defendant at his request,\\\" which should have read \\\"for work done and materials provided for the defendant's testatrix in her lifetime, at her request.\\\"\\nII a demurrer lmd been filed to the declaration it would have been sustained, and the plaintiff would have had to amend the same, so as to conform to the requirements of the law. The point was raised in the argument on this motion, whether a judgment by-default could be rendered against an executor for want of an affidavit of defence. The oath required could only be made by a party having personal knowledge of the facts set forth therein, and ns an executor could rarely have the knowledge which his testator possessed in regard to his business transactions, it would be almost an impossibility that he should be able to prevent a judgment against an estate represented by him, if he be required to say on oath that every plea which he may file, denying the merits of the claim for which suit is brought, is true.\\nThe Court of Appeals, while not deciding the question, because the point was not raised in the case, has very broadly intimated in May vs. Wolvington, 69 Md. 124, that the affidavit required of defendants under the above mentioned section of the Code does not apply to cases in which the defendants are executors. In regard to the question whether a judgment rendered against the executor of Amelia Dorsey can be entered in the dockets and records of the court in a suit against the executor of Amelia Doyle, an interesting point has been discussed.\\nIt seems that the motion for the judgment was not signed by the plaintiff's attorneys, but was signed in their name and with their consent, by one of the deputy clerks in the office of the clerk of this court, and it is contended that this action of a deputy clerk is irregular and unlawful. The law (Art. 4, Sec. 163, of the Local Code) says distinctly that judgment by default for want of a plea shall be entered by the court, or olerk thereof, upon motion in writing made by the plaintiff, or his attorney. The General Law (Art. 10, Sec. 15) says that no clerk of any Court shall practice as attorney at law in any of the Courts of this State whatsoever, nor shall any deputy clerk of any Court, practice as attorney at law in any Court of this State, of which he is an officer, or to which he may be attached as a deputy or assistant officer.\\nIf a clerk be permitted to act as the agent of the plaintiff's attorney in making a motion for a judgment by default, in his capacity as clerk it is not difficult to perceive that such power, if recognized by the Courts, will soon lead to abuse. While no evil may have arisen from such action heretofore, if it has been practiced, as alleged, the practice is fraught with danger and should be discontinued. The clerk owes it to himself and to the due administration of the law that the spirit, as well as the letter of the law, should be observed and that no motion should be filed, except signed as the law requires by the plaintiff or his attorney. Other points than those above mentioned were raised by the defendant, but as they relate to the merits of the case and are more properly subjects for discussion before the jury, the Court declines to express an opinion upon them. It follows from what has been said that the judgment by default was irregularly entered and that both the judgment and the extension thereof must be stricken out.\"}"
\ No newline at end of file
diff --git a/md/2005872.json b/md/2005872.json
new file mode 100644
index 0000000000000000000000000000000000000000..0881f921ea6d7489a192203ab5c700d50701e6bf
--- /dev/null
+++ b/md/2005872.json
@@ -0,0 +1 @@
+"{\"id\": \"2005872\", \"name\": \"GOTTLIEB, KNABE & COMPANY OF BALTIMORE CITY ET AL. VS. CHARLES MACKLIN ET AL., COMPRISING THE FIELD OFFICERS OF THE FOURTH REGIMENT OF INFANTRY OF THE MARYLAND NATIONAL GUARD, AND THE MAYOR AND CITY COUNCIL OF BALTIMORE, ETC.\", \"name_abbreviation\": \"Gottlieb, Knabe & Co. v. Macklin\", \"decision_date\": \"1908-07-20\", \"docket_number\": \"\", \"first_page\": \"557\", \"last_page\": \"559\", \"citations\": \"2 Balt. C. Rep. 557\", \"volume\": \"2\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:28:50.597923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOTTLIEB, KNABE & COMPANY OF BALTIMORE CITY ET AL. VS. CHARLES MACKLIN ET AL., COMPRISING THE FIELD OFFICERS OF THE FOURTH REGIMENT OF INFANTRY OF THE MARYLAND NATIONAL GUARD, AND THE MAYOR AND CITY COUNCIL OF BALTIMORE, ETC.\", \"head_matter\": \"CIRCUIT COURT OF BALTIMORE CITY.\\nFiled July 20, 1908.\\nGOTTLIEB, KNABE & COMPANY OF BALTIMORE CITY ET AL. VS. CHARLES MACKLIN ET AL., COMPRISING THE FIELD OFFICERS OF THE FOURTH REGIMENT OF INFANTRY OF THE MARYLAND NATIONAL GUARD, AND THE MAYOR AND CITY COUNCIL OF BALTIMORE, ETC.\\nCarroll T. Bond and Marbury & Gosnell for plaintiffs.\\nHill, Ross & Hill and N. Rufus Gill & Sons for defendants.\", \"word_count\": \"1316\", \"char_count\": \"7521\", \"text\": \"ELLIOTT, J.\\u2014\\nThis canse has been instituted by certain corporations which own and maintain in the City of Baltimore buildings and halls devoted to the purpose of being rented for concerts, meetings, exhibitions and other entertainments, against certain persons described as the Field Officers of the Fourth Regiment Infantry of the Maryland National Guard and the Mayor and City Council of Baltimore.\\nThe object of the bill is to secure the issue of an injunction preventing the use of a certain building owned by the Mayor and City Council of Baltimore, .and located on West Fayette street, between Paca and Greene streets, and rented by it to the other defendants for the purpose of being used as the armory of the regiment above named which other defendants it is alleged are about to use the said building for the purposes for which the buildings of the plaintiffs are maintained.\\nThe burden of the complaint made by the plaintiffs is that such proposed use of said building is not only beyond the power of the Mayor and City Council of Baltimore, and hostile to the objects for which said building was leased by it, but that such use of it necessarily brings said building in competition with the buildings owned by the plaintiffs in such a way as to deprive them of income which would otherwise accrue to them from the use and rental of their own buildings.\\nTo the bill filed by the plaintiffs demurrers have been interposed by the defendants and the question is raised as to whether or not the plaintiffs have stated a case which authorizes this court to interfere by its writ of injunction.\\nIt goes without saying that if the proposed or suggested use of the building hereinbefore referred to is such as neither of the parties defendant are authorized or permitted in law to make of it, then this court has the power to' enjoin such use either upon the application of a citizen and taxpayer of the Mayor and City Council of Baltimore or at the instance of some plaintiff suffering special damage by such illegal and unauthorized use.\\nThe question of primal importance therefore is, as to whether or not the suggested use of a building owned by municipality of Baltimore, and leased by it to a militia regiment for the purpose of an armory is illegal and ultra vires.\\nTo put the matter in another form the question is as to -whether or not the City of Baltimore owning property which has ceased to be necessary for public purposes, may or may not instead of selling the property, rent it to persons or corporations who might use it in such a way as to bring it in competition with the enterprises of individual and private citizens or taxpayers.\\nAnswering this question, it would seem that there can be no good reason why the Mayor and City Council of Baltimore should be compelled immediately upon the disuse of a public building to dispose of it by sale rather than by lease, and even were it evidently a better business proposition to sell rather than to lease, I know of no power in an equity court which would justify it in enforcing a substitution of its own opinion in the place and stead of that of the legally constituted authorities of the municipality.\\nAnd so it would seem that no injunction should be issued by this court to prevent a disposition by the municipality of its unused property, so long as such disposition is not of itself illegal or violative of the rights of the citizens generally, even though the result of such disposition might be injurious to the business opportunities of some of such citizens.\\nThe principals above suggested seem to be clearly established and warranted by the decision of the Court of Appeals of Maryland, in the case of Rittenhouse vs. The Mayor and City Council of Baltimore, as reported in 25th Md., pages 346 and 347. That decision clearly recognizes the right of a municipality to hold property other than that used by it for municipal purposes and to deal with it as any private citizen or other proprietor might do.\\nThere is, however, another question remaining for decision and that is, as to whether or not granting the right of the municipality to lease its property not used by it for municipal purposes, to the Field Officers of the Fourth Regiment for the purposes of an armory, said field officers can be enjoined from using it for purposes other than of an armory.\\nIt would probably not be productive of any practical or beneficial result were this court to enter into any fine distinctions as to what are or might be the purposes of an armory and it would certainly have the tendency to involve this court in any number of perplexing-details should it give its adherence to the theory that it would be invoked, first, to determine whether the field officers were strictly keeping within their powers, and then to prevent any misuse of those powers so far as using the building only for the purposes of an armory would be concerned. Many things which might not appeal to the court, inexperienced as it would likely be in military affairs, might be imme diately recognized by tlie field officers as necessary to tlie very existence o\\u00a3 an armory, and the consciousness of this fact might well bo calculated to make the court hesitate before interfering.\\nThe situation, however, in this case is, after all, not really so difficult as might at first appear.\\nA plain simple statement of it is that the Meld Officers of the Fourth Itegiment have been renting and propose to rent the armory building at a time when not in actual use by the regiment and in such a manner as not to interfere with such use, for the purpose of raising additional income to be devoted to the purposes of the regiment and it happens by such renting the building is brought in competition with those owned by the plaintiffs.\\nIt is true that the bill alleges that such renting tends to increase the risk of injury to the building and to the property of the State located therein, but even were that so it is entirely possible to insure against such additional risk, and even were it not, it would seem to be a matter rather for the executive departments of the city and State than for the judicial.\\nAnd so we must come back to the single consideration as to whether or not the renting of the Fourth Ilegiment Armory for concerts, public exhibitions and entertainments is to be enjoined by this court, because such use of it will be in competition with other buildings located in the city, constructed and maintained for the same purposes and owned by private citizens, whether individually or as stockholders in corporations.\\nAddressing myself to this single question, while remembering and recognizing the great and proper powers vested in a Court of Equity to restrain and prevent injuries which are likely to be the result of an unwarranted use of power or to flow from illegal and invalid acts of individuals or of the public authorities, I am unable to see that there is anything alleged or involved in the cause instituted by the plaintiffs which calls for the intervention of an equity court.\\nIt follows, therefore, that the demurrers filed by the defendants must be sustained.\"}"
\ No newline at end of file
diff --git a/md/2005916.json b/md/2005916.json
new file mode 100644
index 0000000000000000000000000000000000000000..7a19a278c3bfddc8088bb0ca96f9ba0659ca3271
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"2005916\", \"name\": \"MARIA REID VS. THE JOHN F. WIESSNER & SONS' BREWING COMPANY OF BALTIMORE CITY\", \"name_abbreviation\": \"Reid v. John F. Wiessner & Sons' Brewing Co.\", \"decision_date\": \"1899-01-26\", \"docket_number\": \"\", \"first_page\": \"6\", \"last_page\": \"6\", \"citations\": \"2 Balt. C. Rep. 6\", \"volume\": \"2\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:28:50.597923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARIA REID VS. THE JOHN F. WIESSNER & SONS\\u2019 BREWING COMPANY OF BALTIMORE CITY.\", \"head_matter\": \"CIRCUIT COURT NO. 2 OF BALTIMORE CITY.\\nFiled January 26, 1899.\\nMARIA REID VS. THE JOHN F. WIESSNER & SONS\\u2019 BREWING COMPANY OF BALTIMORE CITY.\\nC. Dodd McFarland for plaintiff.\\nJno. M. Requardt for defendant.\", \"word_count\": \"618\", \"char_count\": \"3394\", \"text\": \"STOCKBRIDGE, J.\\u2014\\nThis case comes before the Court at this time upon a bill of complaint, and plea of res adjudicata.\\nThe prayer of the bill is for the payment by the defendant of the sum of $300, for the rent of certain premises leased by the plaintiff to one. Miller, the lease of which had been, ' on the day of its execution, assigned by Miller to the present defendant, and some time subsequently again assigned by the defendant to one Jones.\\nTo recover the rent now claimed as due, together with one month additional, a suit was brought in the Superior Court of Baltimore City, and defended upon the ground that there being no privity of contract between the parties to the suit, no action at law would lie after the assignment by the defendant to Jones. The validity of the assignment to Jones was denied by plaintiff, but sustained by the Court. This was held to be an effectual defense by that Court, and the judgment was subsequently affirmed by the Court of Appeals. Thereupon, the present bill was filed to which the plea of res adjudicata is interposed as a bar.\\nThe principle is too well established to require any citation of authorities, that where the cause of action and the parties are the same, and a suit is prosecuted to final judgment, that determination is conclusive, not only upon the issues that may have been raised in such original trial, but as to any which might have been raised in it.\\nTrayhern vs. Colburn, Exr., 60 Md. 267.\\nWalsh vs. C. & O. Canal, 59 Md. 423.\\nIn the present case, however, it is difficult to see how the issues sought to be raised by the suit could have been passed upon at all by the jury empaneled in the first case, and did the law go no further, the Court would be inclined to overrule the plea.\\nThere can be no question that before any suit at all had been brought, the plaintiff had the option between bringing a suit at law and filing a bill in equity, and that option continued to be hers down to the time that the ease at law was actually submitted to a jury, or closed by a decree, but it has been repeatedly determined in this State that, \\\"if a party has a choice between two actions upon the same demand, and he selects one, which is decided by a competent tribunal either for or against him as a general rule, he will not be permitted to resort to the other.\\\"\\nWalsh vs. C. & O. Canal, 59 Md. 427.\\nFisher vs. Boyce, 81 Md. 46.\\nKeedy vs. Long, 71 Md. 385.\\nIt is not the institution of 'a suit which is abandoned before final judgment is reached that operates as the estoppel, but the selection by the plaintiff of one of two remedies that were open to him, and a decision thereon by a competent tribunal that precludes a resort to the other remedy. \\\"Where the remedies are alternative, not cumulative, his choice of the one and pursuit of it to final judgment, will exclude the other or opposite remedy, and having repudiated the latter, he cannot afterwards ignore the judgment actually rendered, change his position and adopt the remedy he had repudiated and repudiate the one he had adopted.\\\"\\nBolton Mines Co. vs. Stokes, 82 Md. 59.\\nIn view of the overwhelming weight of authority, therefore, the plea will be held good.\"}"
\ No newline at end of file
diff --git a/md/2007823.json b/md/2007823.json
new file mode 100644
index 0000000000000000000000000000000000000000..a1c2074a6e62a4ec3c3df2af78e172b473947611
--- /dev/null
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+"{\"id\": \"2007823\", \"name\": \"THE PAYE BUS COMPANY VS. DANIEL C. AMMIDON, ALRRED S NILES, CLARENDON I. T. GOULD, BOARD OF POLICE COMMISSIONERS, AND ROBERT D. CARTER, MARSHAL OF POLICE\", \"name_abbreviation\": \"Paye Bus Co. v. Ammidon\", \"decision_date\": \"1915-09-23\", \"docket_number\": \"\", \"first_page\": \"370\", \"last_page\": \"372\", \"citations\": \"3 Balt. C. Rep. 370\", \"volume\": \"3\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:14:01.543184+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PAYE BUS COMPANY VS. DANIEL C. AMMIDON, ALRRED S NILES, CLARENDON I. T. GOULD, BOARD OF POLICE COMMISSIONERS, AND ROBERT D. CARTER, MARSHAL OF POLICE.\", \"head_matter\": \"CIRCUIT COURT NO. 2 OF BALTIMORE CITY.\\nFiled September 23, 1915.\\nTHE PAYE BUS COMPANY VS. DANIEL C. AMMIDON, ALRRED S NILES, CLARENDON I. T. GOULD, BOARD OF POLICE COMMISSIONERS, AND ROBERT D. CARTER, MARSHAL OF POLICE.\\nMoLanahan, Franco and llousor for the complainants.\\nRobert F. Stanton for the defendants.\", \"word_count\": \"1108\", \"char_count\": \"6481\", \"text\": \"ELLIOTT, J. \\u2014 -\\nOn July 17, 1915, the Bill of Complaint and for injunction was filed in this cause by the complainant, seeking to prevent the enforcement by the respondents of the terms and provisions of an ordinance adopted by the Mayor and City Council of Baltimore on the ninth day of July, 1915, entitled \\\"An ordinance providing a tax upon the privilege of operating jitneys, automobiles and motor cars for the carriage of passengers for hire; regulating the operation of jitneys and requiring a license therefor; and providing a penalty for the violation of this ordinance.\\\"\\nThe ordinance is asserted to bo null and void, and of no effect, for a number of reasons set out in said bill, and this Court is asked to enjoin its enforcement by the Board of Police Commissioners and the Marshal of Police, and a preliminary injunction has issued. A motion has been made to dissolve the injunction, and a hearing having been had, it becomes necessary for this Court to determine the questions raised by said motion.\\nIt is not necessary to discuss all the reasons of objection recited in said bill, but it appears proper to analyze the ordinance itself, in order to discover its scope, and the avowed object of its passage. Tliat object is said ill the title to be:\\n(1) To provide a tax for the privilege of operating jitneys, automobiles and motor cars for the carriage of passengers for hire.\\n(2) For regulating the operation of jitneys, and requiring a license therefor.\\n(3) To provide a penalty for the violation of the ordinance.\\nIt is to be noticed that the title comprehends a tax upon \\\"jitneys, automobiles and motor cars for the carriage of passengers for hire.\\\"\\nSection 1 of the ordinance contains no provision relating to automobiles or motor cars, but applies entirely to \\\"jitneys.\\\"\\nSection 2 contains a number of provisions for the regulation of \\\"jitneys\\\" with, against, an entire absence of any reference to \\\"automobiles and motor cars.\\\"\\nSection 3 provides for the license and tax, again limiting the provision for such license and tax to \\\"jitneys\\\" and containing not even a reference to \\\"automobiles\\\" or \\\"motor cars.\\\"\\nSection 1 contains a definition of the word \\\"jitney\\\" as used in the ordinance, and it is said \\\"to mean every motor car operated over any of the public highways of Baltimore City, by a regular route, for the purpose of carrying iiassengers for hire.\\\" \\\"Every motor vehicle which comes under the definition of jitney, as herein provided, shall be subject to the provision of this ordinance whenever being operated for the carriage of passengers for hire, whether on its regular route or not.\\\" \\\"Nothing in this ordinance shall be construed to relieve any person or operator from any regulation imposed by the \\u00a1\\u00e1tate of Maryland, or by lawful authority in pursuance thereof.\\\"\\nSection 3 devotes the whole proceeds of the tax under the ordinance to \\\"be used for the purpose of paving, repaving or repairing streets.\\\"\\nSection 6 provides a fine for every person operating, and for every owner who permits to be operated, in violation of this ordinance, any jitney, automobile or motor cur, of from ten to one hundred dollars for every day's operation.\\nIt is worth while to make further quotation from the ordinance by reciting the provisions for the tax.\\nSection 3 contains the stipulation that \\\"for each jitney having a seating capacity of not more than four passengers, a tax of one hundred dollars per annum.\\\" For each jitney having a seating capacity of moni than four passengers, a tax of one hundred dollars per annum, and an additional sum of twenty-five dollars per annum for each passenger in excess of four for which such jitney has a seating capacity.\\nTaking the definition of a jitney as provided in tlie ordinance, it goes without saying that any motor car operated over the public highways of the city, for the carriage of passengers, for hire, is liable to the license and tax, and the term motor car is broad enough to include automobiles and street cars. But it is evident from Section 4 that the ordinance is not. intended to apply to motor cars generally, because that section expressly provides that \\\"Every motor vehicle which comes under the definition of jitney, as herein provided, etc., necessarily implying that the ordinance is not intended to apply to motor vehicles which do not come under the definition of \\\"jitney.\\\"\\nWe have therefore a discrimination with regard to motor vehicles, not based on any inherent differences as among the vehicles themselves, but upon the arbitrary distinction which the ordinance itself makes.\\nMoreover, although \\\"automobiles and motor cars\\\" are expressly mentioned in the title, they are entirely omitted from any of the prohibitive sections of the ordinance, and there is no penalty annexed to the running of automobiles or motor cars.\\nNor is this the only discrimination made by the ordinance.\\nIt is not the use of the public streets by motor cars \\\"for hire\\\" that is to be licensed and taxed, but the use of the streets by motor cars, coming under the definition of jitneys, carryiny panxen.</ers, that is to be taxed.' The result is that motor cars carrying freight and merchandise, for hire, need pay no tax, and there is another arbitrary discrimination and distinction between passengers and freight.\\nAt the hearing of this cause much point was made of the suggestion that the use of the streets and the injury thereto was the reason for the tax; but when it is recalled that the heavy freight motor cars injure the streets more than jitneys, it becomes evident that we must look elsewhere for the reason for the tax.\\nThere can be no doubt that there is much in the ordinance which was entirely within the power of the Mayor and City Council of Baltimore to enact ; but when it singles out the owners of \\\"jitneys\\\" and taxes them to an amount that seems to be, if it is not really so, prohibitive, leaving other motor cars or vehicles untaxed, there would appear to be an unjust and unfair discrimina tion which should be enjoined by this Court.\\nThe Court will therefore overrule the motion to dissolve the injunction and will pass an order making final the injunction already issued.\"}"
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diff --git a/md/2007947.json b/md/2007947.json
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+"{\"id\": \"2007947\", \"name\": \"MARGARET McCAFFERTY VS. THE UNITED STATES LIFE INSURANCE COMPANY OF NEW YORK\", \"name_abbreviation\": \"McCafferty v. United States Life Insurance Co. of New York\", \"decision_date\": \"1911-11-24\", \"docket_number\": \"\", \"first_page\": \"159\", \"last_page\": \"163\", \"citations\": \"3 Balt. C. Rep. 159\", \"volume\": \"3\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Superior Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:14:01.543184+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARGARET McCAFFERTY VS. THE UNITED STATES LIFE INSURANCE COMPANY OF NEW YORK.\", \"head_matter\": \"SUPERIOR COURT OF BALTIMORE CITY.\\nFiled November 24, 1911.\\nMARGARET McCAFFERTY VS. THE UNITED STATES LIFE INSURANCE COMPANY OF NEW YORK.\\nIsaac Lobe Straus and Joshua Horner. Jr., for plaintiff.\\nAlbert Richie for defendant.\", \"word_count\": \"3102\", \"char_count\": \"16505\", \"text\": \"GORTER, J.\\n(Orally)\\nNow gentlemen, I have endeavored to keep my mind ox>en, so as to reach, as correctly as I might be able, tlie law that would be applicable and control this case. I have certainly done so, because I was not able to reach a conclusion as to how I ought to decide it, until I lmd to reach a conclusion. Whether my conclusion is right or wrong can very easily be determined, with comparatively little expense, by the higher court, which, after all, is the tribunal that makes the law.\\nThe case was very fully argued, and I wanted it to be very fully argued; because it seemed to me to be a very important one, but after the argument the case really reduced itself to a very narrow compass, and the learned counsel for the plaintiff it seemed to me, al most, if not entirely, stated the sphere within which it stood.\\nI think that this is not a case as to whether or not the defendant furnished something for which the plaintiff: did not ask, and, therefore, that there was a mistake and no contract. In my judgment, if that were all, it would be a question that undoubtedly, under the evidence in the case, should go to the jury. But what I think the ease is, is this: Conceding that the plaintiff got a policy different from the one that he expected to get, and one which the agent of the company said he would get, he has not, by holding on to that policy for twenty years, accepted by his conduct the terms and conditions which the company made in the policy itself? Now, that is the case.\\nIn other words, can a man take a policy which he could read in fifteen or twenty minutes, although the agent has told him it is something different from what he really gets, and can he keep that policy for twenty years without reading it, and after he had had his insurance for twenty years, during any time wherein, if he had died, the policy would have been paid; and then at the end of twenty years read it and say, This is not what I wanted; this is not what I contracted to get; now, I don't want it; it was a mistake; I w\\u00e1s induced to take it by the misrepresentations of the agent, and I ask the company to hand me back my money, with interest? That seems to me to be this case. Can a person do that in law?\\nI have been referred to the Minnesota case \\u2014 the strongest case for the plaintiff \\u2014 and in that, the application was made, if my recollection is correct, six weeks after the policy was delivered. I rather think the Bostwick case, the one which I have before me, was six months after the policy was delivered, and the MeMaster case was a year after the policy was delivered.\\nIn the first and in the last, the plaintiff was allowed to recover ; in the second, one of the plaintiffs was allowed to recover, but the other two were not allowed to recover. We see what tremendous resistance was offered by the company and the doubt that existed in the minds of the court in those cases, even to allow the recovery to be had.\\nWe have not a case like those before us now. We have a case in which the plaintiff waited twenty years, during all of which time he was insured, and then at the end of the twenty years he realizes, or wakes up to the fact that what he has, was not what he claims he contracted to get; his chief disappointment is that he does not get the $5,500, but only less than half of that amount, when he thought that the policy which he had, according to his testimony, guaranteed him the $5,500.\\nFrom the reading of the cases and the principles involved, I have reached the conclusion that the law will not allow him to do that. Reading from page 748 of the opinion of the Wisconsin Supreme Court, Bostwick against the Mutual Insurance Company; \\\"Those principles apply with great force to this class of cases. The respondent had the full benefit of his insurance for nearly a year before he repudiated the transaction, and his assignees had the benefit of theirs for months before they acted in that regard. The entire period covered by the first premium upon respondents' policy had, before he refused to abide by such policy nearly expired. No one would venture to claim that, if he had died during such period of delay, the company would not have been bound by the policy, and his personal representatives would not have enforced it.\\nRuring all that time the money paid by respondent for his policy formed a part of the fund relied upon by the other policy holders for their protection, pait of the assets of the company upon which all its operations were based. It was not guilty of any moral turpitude except by imputation. Its officers were not guilty of any wrongdoing whatever. They supposed, and had a right to suppose, for months, that the company's soliciting agent acted honestly in obtaining the applications for the policies. They knew that the policies issued, received and retained, were in strict accordance with the applications. They carried the risk assumed on their books as part of their liabilities and the premiums paid, as before indicated, as part of their assets. All the policy holders of the company were interested in the fund of which the money sought to be recovered formed a part, and many of which, we may rightly assume, joined the company during the period of delay.\\\"\\nAgain on the next page I read:\\nMr. Ritchie. Is your Honor reading from 67 L. R. A.?\\nTlie Court; Yes, from page 748. Now I am going to read from page 749. \\\"A diligent attention to one's own concerns, as well as good faith to others, is a virtue; and the law, while it recognizes the rules which tend to preserve the latter, at the same time is careful to guard the principles which prompt to the exercise of the former. With respect to points plainly within the reach of every man's observation and judgment, and where an ordinary attention would lie sufficient to guard against imposition, the want of such attention is, to say the least, an inexcusable negligence. To one thus supinely inattentive to his own concerns, and improvidently and credulously confiding in the naked and interested assertions of another, the maxim, Vigilan,tibns, et non dormientibus. jura subveniunt. emphatically applies, and, opposes an insuperable objection to his obtaining the aid of law.\\\"\\nNow, again on the next page, 750, I read ; \\\"If he rescinds on the ground of fraud, he must do so at once on discovering the fraud. Any delay, especially if if be injurious to the other party, would be regarded as a waiver of liis right. The mere lapse of time, if it be considerable, goes far to establish a waiver of this right, and if it be connected with an obvious ability on the part of the defrauded person to discover fraud at a much earlier period, by the exercise of ordinary care and diligence, if would be almost conclusive.\\\"\\nAgain, I read at the bottom of page 751: \\\"Constructive notice was not formerly held to be under any circumstances a 'cover for fraud.' It was held to be evidence of assent, regardless of the fraud, or, if not such, of inexcusable negligence, waiving judicial remedies for fraud, and not apparent mere assumption, but upon the authority of this court's previous decisions, and of most other courts.\\\"\\nTherefore, gentlemen, not without considerable doubt and hesitation. I have reached the conclusion that if a party keeps a policy for the length of time Mr. McOafferty did, he has in law assented to the terms of that policy, and he can not come into a court and ask the court to relieve him from the position that he is in. His neglecting the serious obligation of reading the policy that insured his lite has lost him that right, notwithstanding he may have relied upon the statement of the company's agent as to the terms of the policy. Now that is the best conclusion that I have been able to reach.\\nOn the other hand, I do see that the other side, in the prospectus which has been handed out, represented something which has distressingly failed to come up to the expectations of the insured. The criticisms that have been made upon the slip which was attached to the policy have some foundation and support. But notwithstanding that, I think that the plaintiff by his conduct under the law as I get it from these cases, and under the law as it seems to me it must be, is iirecluded from recovery in this case.\\nI have realized that the certainty and the stability that is given to written contracts is one of the safeguards of commercial transactions \\u2014 that, if you can get away from it in a $5,000 policy, you can get away from it in a $100.000 policy; and, if you can get away from it in a $100.000 policy, you can do it in contracts which may run up into $500,000 or a $1,000,000, possibly \\u2014 not that they are matters of any more interest to the people concerned in them than the $5,000 is to'Mr. Mc-Cafferty; because a small amount to the man who hasn't much is of as much interest to him as the large amount is to the men who have much more. Still, I believe that that principle in the main gives us more stability in business, and enables us to prosper and progress more, than a rule which will enable a person, after a considerable, length of time, although induced by fraud, to repudiate a contract which he has, printed, in his possession.\\nSo I feel that I will have to grant the motions of the defendant and the prayers.\\nMr. Straus. Do you grant the motion to strike out the evidence?\\nThe Court. Yes.\\nMr. Straus. You grant that?\\nThe Court. Tes, I might as well grant them all in order to give you every possible exception; I might as well give you everything, so that you can have your decks cleared for action. I don't see that that prejudices you at all in that regard.\\nMr. Ititcliie. Before you come to the form of the verdict I want to say a word, because this is a case under a special statute, and there is a special case which deals with the proper form of the verdict in this case.\\nThe Court. I will come back to you. Now, gentlemen, ordinarily, I think, that courts in taking a case away from a jury, just grant the prayer and say nothing; but I am going to try to explain the case to you, because you are here and are a part of the administration of justice, and have a very important function to perform; and I would like you, therefore, to understand the nature of the case that you have listened to so patiently.\\nIt is not my duty to make the law. What I have said is not what I may think; it is what I think the law is, from these cases which these gentlemen have been reading to me for the last two or three days. If I am wrong the Court of Appeals, at Annapolis, at a very little cost, for this (indicating) is all the record consists of, will reverse me and send the case back to be tried by a jury. If I am right, they will let my rulings stand, because such is the law of Maryland, and we are all bound by it.\\nNow, I have said this: I have said that this is not a case to go to the jury, and I want to illustrate that to you gentlemen. If you gentlemen all take out an insurance policy for $5,000, the twelve of you, and you pay a premium of $150 a year and it is a twenty year policy, you each pay in about $3,100, and with 6 per cent, interest on. your money, it will make $5,000, and so, if you all live, there will be $60,000 to be divided among you twelve gentlemen, and you will each get $5,000 back, which is the amount of this policy, which, it is estimated would be returned. I make it even figures, because my calculations would be more difficult if I went into the hundreds.\\nThat is all right if you all live, but if you, Mr. Foreman, the gentleman next to you, and 'the two gentlemen back of you, were to die the first year after the policy is taken out, you all will not have $60,000, because you four will not put in your respective amounts; and each of your families will get $5,000. Therefore, you would take, away from that-fund of $60,000 the $20,000 which you have not put in, and the $20,000 which your families \\u2022take out, and there would be left for you gentlemen who live beyond the twenty years a fund of $20,000, to be divided equally among you, and each of the eight will get $2,500-\\nThat is a plain proposition. But suppose the next four gentlemen say, \\\"Why, the agent told me I was going to get $5,000, and here the company only gives me $2,500, and I believed him, and he made a fraudulent representation that that was in my policy, and when I got my policy I put it in the drawer, and I did not look at it; it stated that it was only estimated; but I did not look at it; and he told me I was going to get $5,000, and I would not have gone into it if I had known that I was not going to get my $5,000 back; I am going into a court of law and ask the court of law' to give me back my $5,000.\\\" Each one of you say that and you come into a court of law and you say the agent told you that. The other side would say, \\\"Why, gentlemen, why didn't you read your policy?\\\" \\\"Oh,\\\" you say, \\\"I depended upon what the agent said; he lulled me into a feeling of security and whenever he met me. he would call me 'lucky boy,' and tell me how much I was going to get, and I did not take the trouble to read the policy.\\\" And the court and jury give you back $5,000 each.\\nNow', w'hat are the other four gen.ttemen on the end to get? No money left. They say, \\\"We did read our policy ;. we understood that the insurance wras not going to anybody, except for protection for their w'ives and families ; when you come to say insurance is an investment, that each of your families can have that amount, we know better; we know we are young men and that we may die, and w'hile wre are getting our salaries we are willing to pay you a part of our salaries to protect our w'ives and children in ease we die; and w'e did read our policies; wre do understand our policies; we know that if everybody had lived, we w'ould have gotten $5,000; we know that if the company was fortunate enough to buy land out west at $2 an acre and later sell it for $200 an acre, we would get more than that; but, in the ordinary course of business, knowing the company could not ordinarily do better than 6 per cent., we thought, very well; although they told us w'e would get $5,000, as thoughtful men reasoning out the transaction we have entered into, we only really expected to get, if we live, about $2,500, because that is about what we would reasonably expect. to receive, and we want our $2,-500.\\\" The insurance company would say: \\\"We haven't, it to give you: the other four gentlemen, who- did not read their policies, who did not take the trouble to read theirs \\u2014 a jury and a judge have given them all the money and, therefore, yon gentlemen who read your policy and understood the transaction get. nothing. We haven't any money to give you.\\\"\\nNow, T think that principle runs through all the insurance companies, if they are honestly conducted. You need not expect, if you give a verdict against an insurance company, that you are going to get any of Mr. Pierpont Morgan's money, or Mr. Rockefeller's; you are going to get the money of the other gentlemen on the jury, or of other people like yourself, who are struggling to make the world move, and who- send their money on to the insurance companies ; what yon get is the money of the other people who are insured.\\nFor these reasons I believe the law compels me to say that, taking all the evidence in this case, the law is \\u2014 and I must tell you what it is as I understand it to he, and if I am wrong there is a court above me to correct me\\u2014 the law is that I must instruct you to bring in your verdict, 1 will say, for the defendant.\\nBut I am going to hear them. The defendant has put in the court this twenty-two hundred or twenty-three hundred dollars, and now I am going to hear the lawyers as to how they think your verdict, ought to he rendered. When you give your verdict, there is a higher court that will review what I have done, so that you need not feel you are guilty of an injustice to anyone, no matter what your views may be.\\nMr. Straus: Exceptions are reserved by the plaintiff to all the rulings of the court, both as to motions and to prayers, and we reserve an exception as to the form of verdict.\\nThe jury assessed the damages at $2,256.95, the amount paid into court. The verdict as found was rendered under the direction of the court.\"}"
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+"{\"id\": \"2009985\", \"name\": \"THOMAS MACKENZIE, ET AL., VS. THOMAS MACKENZIE, EXECUTOR, ETC.; PETITION OF JOHN A. REILLY, TRUSTEE, VS. THOMAS MACKENZIE, TRUSTEE\", \"name_abbreviation\": \"Mackenzie v. Mackenzie\", \"decision_date\": \"1926-02-16\", \"docket_number\": \"\", \"first_page\": \"450\", \"last_page\": \"452\", \"citations\": \"4 Balt. C. Rep. 450\", \"volume\": \"4\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:59:38.918648+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THOMAS MACKENZIE, ET AL., VS. THOMAS MACKENZIE, EXECUTOR, ETC. PETITION OF JOHN A. REILLY, TRUSTEE, VS. THOMAS MACKENZIE, TRUSTEE.\", \"head_matter\": \"CIRCUIT COURT OF BALTIMORE CITY.\\nFiled February 16, 1926.\\nTHOMAS MACKENZIE, ET AL., VS. THOMAS MACKENZIE, EXECUTOR, ETC. PETITION OF JOHN A. REILLY, TRUSTEE, VS. THOMAS MACKENZIE, TRUSTEE.\\nThomas Mackenzie for Thomas Mackenzie, trustee, and Charles M. Rahe, Jr.\\nEdward H. Burke for John A. Reilly, trustee in bankruptcy.\", \"word_count\": \"1491\", \"char_count\": \"8330\", \"text\": \"FRANK, J \\u2014\\nThe first question involved in this controversy is whether the interest of Charles M. Rahe, Jr., under the will of his father, Charles M. Rahe, was of such a character as to pass to the petitioner, John A. Reilly, Trustee in Bankruptcy of Charles M. Rahe, Jr. The testator died on September 12th, 1904, leaving a wife, Mary E. Rahe and eight children surviving him. Charles M. Rahe, Jr., was adjudicated a bankrupt on December 10th, 1923. The widow, Mary E. Rahe, died on December 28th, 1925.\\nIf the bankrupt had in December, 1923, such an interest under the said will as he could have then transferred, his trustee in bankruptcy is entitled thereto. If, however, his said interest was not then alienable, it did not pass to his trustee under the provisions of Section 70 of the Bankruptcy Act.\\nAfter making certain provisions to have effect, during the lifetime of the widow, the will provided by Clauses D and E of paragraph Three as follows:\\n\\\"D Upon the death of my wife, Mary E. Rahe, I direct that the whole corpus of my estate, including the dwelling and furniture devised to my wife for life, shall be divided into eight equal parts, and one of said parts shall be paid over by said trustee to each of my said eight children (should they then be living) excepting to the share of my said son John Gerhardt Rahe, which shall be held by the said trustee and invested and reinvested, and the net income only paid over to my said son, in quarterly installments, until he shall reach the age of forty (40) years, when the trust as to his share shall cease, and his portion of the corpus shall be paid over to him absolutely. But my said son shall have no power to anticipate said income, nor to assign it, and his receipt only shall be sufficient acquittance to the said trustee.\\\"\\n\\\"E Should any of my said children die before my said wife, or should my said son John Gerhardt Rahe die before reaching forty years of age, leaving a child or children living, then the share in the said corpus of the child so dying shall vest in the said child or children so left, to be paid over to them upon the death of my said wife. But should any of my said children die without leaving a child or children living at his or her death, then the said share in the corpus of the said child so dying shall vest in the survivors of my said children, and the child or children of any deceased child, the latter to take the share of its or their parent, to be paid over to them upon the death of my said wife, except as to any share that may pass to the use of my said son, John Gerhardt Rahe, which shall be held in trust as hereinbefore provided as to his share until he attains the age of forty years.\\\"\\nTestamentary dispositions of this general character are not infrequent and have given rise to much litigation. Roughly speaking they may be divided into three classes:\\nFirst: Dispositions to persons actually named or definitely described and determined in the will, such dispositions to take effect only upon the happening of some future contingency. Such interests even though contingent, are alienable and transmissible by descent and devisable. Fisher vs. Wagner, 109 Md. 243 and cases there cited.\\nSecond: Dispositions in futuro to classes of persons, such as children, wherein either the language of the will expressly states that the persons to make up the class are determined as of the date of the death of the testator, or no language appears indicating an intention of the testator to postpone the period of such determination beyond the death of the testator. The law favors the early vesting of estates. In both of these cases, the individuals comprising the class at the death of the testator are held to take vested estates subject to be divested in whole or part to gratify the other requirements of the will as to matters happening between the date of testator's death and the date of the vesting of the estates in possession and enjoyment. Such interests, being vested, are alienable and transmissible, subject to being divested in whole or part in whomsoever's hand they may be. Taylor vs. Mosher, 29 Md. 443; Dulaney vs. Middleton, 72 Md. 67; Roberts vs. Roberts, 102 Md. 131; Lee vs. Waltjen, 141 Md. 450; Cole vs. Safe Deposit & Trust, 143 Md. 90.\\nThird: Dispositions in futuro to classes of persons, the will containing words postponing the determination of the actual persons to compose the class, until some future happening, often the death of the tenant of a particular estate. The interests of persons comprising such classes are contingent upon their being in esse at the time of such happening. Indeed they are not in the class unless then in esse. Such interests are neither alienable, or transmissible. Lee vs. O'Donnell, 95 Md. 538; Lansdale vs. Linthicum, 139 Md. 155; Stahl vs. Emery, 147 Md. 123 and cases there cited.\\nIn the will of Mr. Rahe, after the provisions for the benefit of his wife and for the payment of a balance of net income in quarterly installments to his eight children during the life of the wife, the testator directed that upon the death of the wife the whole corpus of the estate shall be divided into eight equal parts and one of said parts shall be paid to each of the eight children, \\\"should they then be living,\\\" except in the ease of one son. Should any of said children die before the wife leaving a child or children living, \\\"then the share in the said corpus of the child so dying shall vest in the said child or children so left, to be paid, over to them upon the death of my said wife.\\\" If any of testator's said children die \\\"without leaving\\\" children living at his or her death, then the said share in the corpus of the said child so dying, shall vest in the survivor of my said children to be paid over to them upon the death of my wife.\\\" (Italics mine.)\\nThe division of the corpus of the estate into eight equal parts is to be made only upon the death of the wife, the payment of one of the eight parts to each of testator's eight children only if they be then living. \\\"Should they be then living,\\\" can have only the meaning, \\\"provided that,\\\" or \\\"in condition that,\\\" or \\\"only if,\\\" they be then living. Should any of testator's children die before his wife then provision is made for the passage of his share upon her death. The distinction is between phrases such as the above which are said to be \\\"the usual and proper phrases to constitute conditions precedent,\\\" and in their absence the use of such phrases as \\\"from and immediately after the death, etc.,\\\" which are often held to refer merely to the time of possession and enjoyment. Cole vs. Safe Deposit & Trust Co., 143 Md. 90, 96, and cases there cited.\\nI have been referred to no case holding a vested remainder to have been created where such words constituting condition precedents were used.\\nI am of the opinion that the provision thus made for the 'benefit of Charles M. Rahe, Jr., belong to the third class of cases above enumerated and in December, 1923, over two years before his mother's death, Rahe, Jr., did not have such a vested estate as was alienable or transmissible and thus did not pass to his trustee in bankruptcy, the petitioner herein.\\nAs to the small amount of income in the hands of the trustee under the will, it was directed to be paid to Rahe, Jr., \\\"without power to anticipate his share of said income, and the receipt of said (Rahe, Jr.). alone to be a sufficient acquittance to the said trustee.\\\" The trustee could not be protected in making payments of income except by Rahe's receipt. He-could not administer the trust according to its terms without such receipt. This, of course, could not be secured by a payment to the trustee in 'bankruptcy or any other person than Rahe. I hold that a spendthrift trust was intended by the testator. Smith vs. Towers, 69 Md. 88; Jackson Sq. Assn, vs. Bartlett, 95 Md. 661, 662.\\nThe trustee in bankruptcy is not entitled to such income.\\nI shall sign a decree in accordance herewith.\"}"
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+"{\"id\": \"2010080\", \"name\": \"EX PARTE IN THE MATTER OF THE TRUST ESTATE UNDER THE WILL OF JOHN Q. A. HOLLOWAY. SAFE DEPOSIT AND TRUST COMPANY OF BALTIMORE, A BODY CORPORATE, TRUSTEE, PETITIONER, VS. GRACE SUZANNE HOLLOWAY, INFANT. A NON-RESIDENT, MARIE CALOU. PURPORTING EXECUTRIX OF THE WILL OF JOHN E. HOLLOWAY, DECEASED, A NON-RESIDENT, ET AL., RESPONDENTS\", \"name_abbreviation\": \"Safe Deposit & Trust Co. v. Holloway\", \"decision_date\": \"1925-12-01\", \"docket_number\": \"\", \"first_page\": \"425\", \"last_page\": \"429\", \"citations\": \"4 Balt. C. Rep. 425\", \"volume\": \"4\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"More City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:59:38.918648+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EX PARTE IN THE MATTER OF THE TRUST ESTATE UNDER THE WILL OF JOHN Q. A. HOLLOWAY. SAFE DEPOSIT AND TRUST COMPANY OF BALTIMORE, A BODY CORPORATE, TRUSTEE, PETITIONER, VS. GRACE SUZANNE HOLLOWAY, INFANT. A NON-RESIDENT, MARIE CALOU. PURPORTING EXECUTRIX OF THE WILL OF JOHN E. HOLLOWAY, DECEASED, A NON-RESIDENT, ET AL., RESPONDENTS.\", \"head_matter\": \"CIRCUIT COURT NO. 2 OF MORE CITY.\\nFiled December 1, 1925.\\nSee 151 Md. 821.\\nEX PARTE IN THE MATTER OF THE TRUST ESTATE UNDER THE WILL OF JOHN Q. A. HOLLOWAY. SAFE DEPOSIT AND TRUST COMPANY OF BALTIMORE, A BODY CORPORATE, TRUSTEE, PETITIONER, VS. GRACE SUZANNE HOLLOWAY, INFANT. A NON-RESIDENT, MARIE CALOU. PURPORTING EXECUTRIX OF THE WILL OF JOHN E. HOLLOWAY, DECEASED, A NON-RESIDENT, ET AL., RESPONDENTS.\\nIsaac Lobe Straus, J. Paul Schmidt for Marie Calou, et al.\\nJohn B. Deming, Edgar Allan Poe, Robert R. Carman, Henry H. Dinneen for various interests of the estate.\", \"word_count\": \"3455\", \"char_count\": \"19347\", \"text\": \"STANTON, J.\\nThe Safe Deposit and Trust Company of Baltimore, a body corporate of the State of Maryland, trustee, filed a petition in the above entitled cause to obtain the construction of certain clauses in the last will and testament of John Q. A. Holloway. The testimony shows that John Q. A. Holloway died on or about the 34th day of January, 1904, leaving a last will and testament, under which certain trusts were created, the administration of which trusts has been brought under the jurisdiction, of this Court. He left surviving at the time of his death Susanna Holloway, his widow, and four children, John E. Holloway, Edward L. Holloway, Anna Elizabeth Holloway and Clarence J. Holloway. The widow, Susanna Holloway, departed this life on the 5th day of December, 1911, leaving a last will and testament, in which certain trusts were created, and under a bill of complaint filed on the 2nd day of March, 1925, jurisdiction of the administration of these trusts was assumed by this Court. The Safe Deposit and Trust Company, trustee, under the will of Susanna Holloway, has submitted the same for construction and direction under Clause Eleven of said will. The questions to be determined arise out of the following facts:\\nJohn E. Holloway married Ann McClellan Holloway in the City of Lexington, Kentucky, about June 6th, 1889. There was one child born as a result of this marriage, but it lived only a few hours after birth. Shortly after their marriage, John E. Holloway and his wife traveled extensively, finally locating in Biarritz, France. While living in France differences arose between them resulting in an agreement of separation, which was executed May 5th, 3911, and in which certain provisions were made for the wife, out of the income of the trust estate in favor of John E. Holloway under the last will and testament of his father. This agreement has been considered by the Court of Appeals of Maryland in two cases, and has been ratified and confirmed. John E. Holloway, while living in Biarritz, became acquainted with Marie Calou, one of the defendants in this cause, and his interest in and association with Marie Oalou is said to be the reason for the separation between him and his wife.\\nIn the year 1912, after the agreement of separation was executed, John E. Holloway and Marie Calou came to the United States of America, and took up their residence in the City of Reno, State of Nevada. On September 23rd, 1912, Grace Suzanne Holloway, the infant defendant in this cause, was born in the City of Reno. Marie Calou is her mother, and John E. Holloway is her father. John E. Holloway, Marie Oalou and Grace Suzanne Holloway lived together as a family in the City of Reno until 1915, when they moved to the City of Berkely, State of California, and there they lived together as a family until January 29th, 1925, on which day John E. Holloway died.\\nHe left a last will and testament, whereby he appointed Marie Calou his executrix, and gave or sought to give all of his residuary property in the estate to the infant defendant, Grace Suzanne Holloway, whom he described as his daughter, born of Marie Calou, and in whose favor he endeavored \\\"to exercise the power of testamentary appointment in remainder, conferred upon him under the will of his mother, as well as that of his father, John Q. A. Holloway.\\nAfter residing in Reno for a period of time, John E. Holloway instituted a divorce proceeding against Ann M. Holloway on January 21st, 1913. The defendant appeared in this proceeding and answered under date of April 19th, 1913. This proceeding was dismissed on the 21st day of May, 1913, and no divorce was ever obtained by him or his wife.\\nAt the time of the birth of Grace Suzanne Holloway, the birth certificate was filled out and signed by John E. Holloway, in which he declared himself to be the father of Grace Suzanne Holloway. Since her birth she has lived in his home, has been supported and provided for by him, acknowledged and proclaimed to the world as his child. It is contended for Grace Suzanne Holloway that by virtue of, and under the provisions of the law of the State of Nevada, and since 1915, by virtue of, and under the law of the State of California, Grace Suzanne Holloway has been legitimated as the child of John E. Holloway, and having acquired the status of legitimacy in those States she is entitled to come into the Courts of this State, with all the rights and privileges that were conferred upon her as the legitimated child of John E. Holloway. This contention raises sharply the question to be determined under the will of John Q. A. Holloway, wherein he said in the eighth clause of his will, \\\"and at the death of my said son John E. Holloway, in trust to divide the corpus or principal of the property and estate so theretofore held in trust for him among .his children and descendants in such portions as my said son shall hy last will and testament direct or appoint.\\\"\\nThe clauses of the last will and testament of John Q. A. Holloway, which are now before the Court, as particularly bearing on the matter at issue, are Sub-paragraph (B) of Paragraph Eight and Paragraph Nine, reading as follows:\\n\\\"(b) One-sixth of the entire residue of my property, and estate I gave, devise and bequeath to the Safe Deposit and Trust Company of Baltimore, in trust to invest the same in such manner as to the said trustee shall seem best, and to collect the income from time to time arising from the investment sd to be made by it, and after paying thereout all proper charges, to pay over the net income at stated periods to my son John E. Holloway, so long as he shall live, and at the death of my said son John E. Holloway, in trust to divide the corpus or principal of the property and estate so theretofore held in trust for him among his children and descendants in such portions as my said son shall by last will and testament direct or appoint, but if my said son shall die without having exercised such power of testamentary appointment, then at his death' said trustees shall divide the same in equal portions among the children of my said son John E. Holloway, if any he shall have then living, and the then living issue of any child of his who may then be dead, such issue to represent its or their parent in the distribu\\u00ed ion. and to take only the share or portion to which the parent if then living would be entitled. But if my said son John E. Holloway shall die without leaving children or descendants him surviving, then and in that event, the said trustee shall at his death pay over and deliver absolutely one-third of the corpus or principal of said trust fund and property to my son Edward Lee Holloway, free and clear of all trust, and shall continue to hold the remaining two-thirds thereof in trust in equal shares for my daughter Anna Elizabeth Holloway and my son Clarence J. Holloway, in accordance in all respects with sub-paragraphs \\\"d\\\" and \\\"e\\\" of this paragraph of my will, and upon the same terms and limitations and with the same powers as it holds the portions of my estate thereby given in trust for their benefit respectively, including the powers set forth in the ninth paragraph hereof; with the proviso however, that in any event if my said son John E. Holloway shall leave a widow him surviving and born in my lifetime, the trustee shall at Ms death retain for division at her death or remarriage, whichever shall first occur, one hundred thousand dollars of the trust fund and property, and shall only during her life or widowhood, pay over to her at regular stated periods the income arising from said sum of one hundred thousand dollars, which principal sum it shall divide as herein-before provided at the death or remarriage. of such widow.\\\"\\n\\\"Ninthly. In order to facilitate the management; of the portions of my property and estate given by this my will in trust, as hereinbefore set forth, to the Safe Deposit and Trust Company of Baltimore, I do hereby grant to, and confer upon the said trustee full power and authority in its discretion, from time to time, to sell, mortgage, lease, dispose of, assign or convey absolutely or otherwise, the whole or any portion or portions of the property and .estate so given to it in trust, and, in the event of any such disposition of any portion of my property and estate by said trustee in pursuance of the power hereby conferred upon it, the proceeds of all such sales or other dispositions of any of said property shall be reinvested by the trustee having made such sales, or other dispositions, in such manner as to it shall seem best, and shall be held by it, or its successors, if any such there shall be, on the same trusts and for similar uses, and with like powers in relation thereto, as the property and estate so sold or disposed of had boon theretofore held by it. And I do hereby likewise grant to and confer upon my said trustee full power and authority in its discretion to sell any portion of the trust property for the purpose of making any division required by the provisions of this my will, and I do likewise authorize and empower my said trustee to make any division in kind of the trust estate or any part thereof which may be requisite to carry into effect the provisions hereof. And 1 hereby authorize said trustee to execute, acknowledge and deliver all conveyances or instruments of writing which may be necessary to fully execute the powers conferred upon it by this my will, and I declare that purchasers from the said trustee shall not be liable to see to the application of the purchase money. And I further declare that all powers conferred upon said trustee shall be exercisable to their full extent by its successors in trust, if any such there shall be. And I also declare it to be my desire that the trusts by this my will created be administered by the trustee under the supervision of a Court of Equity.\\\"\\nThe determination of the powers of testamentary disposition, as well as the class of persons to take under the will of John Q. A. Holloway, will determine the same issues that arise under the will of Susanna Holloway, the mother of John E. Holloway.\\nThere are two concessions made in the argument which have a bearing in the determination of this case. First, John Q. A. Holloway having died in the City of Baltimore, and his last will and testament having been probated in this State, his will is to be construed under the laws of this State; and, secondly, that wherever the word \\\"child\\\" or \\\"children\\\" is used in his will it means legitimate child or children, generally understood as children born in wedlock. The solicitor for the infant defendant contends that although born out of wedlock, she comes squarely within the class of legitimate child, because she acquired that status in the State of Nevada, and that by the comity of States, she maintains that status in this jurisdiction, with the rights of inheritance and succession that flows therefrom. But a review of the authorities submitted in the arguments and in the briefs has led the Court to the conclusion that the status conferred by the laws of the States of Nevada and California, do not give the infant defendant the right to the trust property covered by the will of John Q. A. Holloway or Susanna Holloway, the mother and father of John E. Holloway.\\nBegining with the case of Barnum vs. Barnum, in 42 Md., page 251, our Court of Appeals at various times has had before it for determination in several different eases one or more of the issues involved in this case, and these decisions when read and applied to the facts of this case are conclusive of the issues to be decided.\\nJackson vs. Jackson, 82 Md. 17; Harding vs. Schapiro, 120 Md. 541.\\nThe case of Barnum vs. Barnum involved a special Act of the Legislature, of Arkansas to legitimate John R. Barnum, a natural son of Dr. Richard Barnum. It undertook to confer on John R. Barnum the rights of heirship. But our Court of Appeals said, when the matter was submitted to it for determination, that the special act of the Legislature of Arkansas could have no extra-territorial effect in this State, and conferred no inheritable rights on John R. Barnum in his effort to obtain property, the distribution of which was controlled by the laws of the State of Maryland. The Court says in that case:\\n\\\"But as to capacity to acquire property beyond the State passing the Act, by virtue of the particular status given the party, that the Legislature could not confer. Even if the act had professed to legitimate John R. Barnum, without reference to previous marriage, it could have no operation here and no rights involved in this case could be affected by it. This would seem to be clear both on reason and authority.\\\"\\nThe rights claimed for the infant in this case are strikingly analogous to those claimed by John R. Barnum. It is contended for the infant defendant that in the Barnum case the Court did not go any further than to decide that the Act of the Legislature of Arkansas had no extra-territorial effect, and could not confer inheritable rights in this jurisdiction when it undertook to declare John R. Barnum to be an \\\"heir\\\" of Doctor Richard Barnum. Nevertheless, the principles announced in that case are controlling in this case, even if it should be true, as argued by the solicitor for the infant, that the precise point now before the Court was not involved in that case. But this Court cannot accept such a construction of the decision in that case \\u2014 because first \\u2014 Dr. Richard Barnum left a will (42 Md. 268) and John R. Barnum was claiming under that will. Secondly, the Court of Appeals had before it and was dealing with the right to acquire property by virtue of a particular status given John R. Barnum, and these conditions make the decision applicable to this case.\\nIt is immaterial, if it were true, that his rights as heir were sought to be enforced; whereas in this case personal property is involved.\\nJudge Gray, in the opinion in Ross and Ross, in \\u00cd29 Mass., page 243, comments on Barnum vs. Barnum, and says that the point decided was that the child was not an heir \\\"of the latter within the meaning of the' will of the latter's father, who nine years before the passage of the Arkansas statute, died domiciled in Maryland, the law of which does not appear to have permitted the creation of an heir in that manner.\\\"\\nNeither does the law of Maryland permit a child born out of wedlock to be legitimated in the manner which is permitted by the laws of Nevada. Code, Article 46, section 6, says: \\\"If any man shall have a child or children by any woman whom ho shall afterwards marry, such child or children, if acknowledged by the man, shall in virtue of such marriage and acknowledgment be hereby legitimated and capable in law to inherit and transmit inheritance as if born in wedlock.\\\" A comparison of the statutes of the three States will show that the legitimating statutes of Nevada and California are in conflict with those of Maryland, and our Court of Appeals has said in Harding vs. Schapiro, 120 Md., page 548, \\\"that the status or condition of any person with inherent succession capacity or inheritance is to be ascertained by the law of his domicile which creates the status, at least when the status is one which may exist under the laws of the State in which it is called in question, and when there is nothing in those laws to prohibit giving full effect to the status and capacity acquired in the State of the domicile. Speaking generally, it may be said that the capacity of the donee to take is governed by the law of the domicile.\\\"\\nThis statement is taken from the ease of Ross and Ross, which is. so strongly relied on by the solicitor for the infant defendant. The Court in that case was dealing with the rights of a child who had been adopted, and was endeavoring to assert inheritable rights in the estate of its foster .father. In this case, we have a child born out of wedlock and legitimated in Nevada claiming the rights of that status in the State of Maryland, and also claiming to be included within the class of child or children which were in the contemplation of John Q. A. Holloway at the time that he exeuted his will. The issue in this ease is not the same issue that was involved in Ross and Ross, because the rights sought to be enforced are not such as flow from the relationship between the infant defendant and John E. Holloway, its natural father, but are rights sought to be conferred by the exercise of a power of appointment given John E. Holloway under the will of his father. Grace Suzanne Holloway was not born at the time of the death of John Q. A. Holloway, and certainly he could never actually have had her in mind, nor was she born in wedlock, and it is conceded that it is only such children who are recognized as legitimate, and come within the language of the will when it defines \\\"child\\\" or \\\"children.\\\" It seems irresistibly true that if any child born out of wedlock could be brought within the class defined in the will of John Q. A. Holloway it could only be children who were born out of wedlock, but subsequently legitimated by marriage of the man and woman and acknowledgment of the ehild by the father, in compliance with the laws of the State of Maryland.\\nMarriage is a status. But it is not every status acquired in a foreign State which will be recognized in this State. Illustrations have been given in llxe decisions of the Court of Appeals as in case of polygamy, incest and miscegenation, and it has been stated such a status would not be recognized under the laws of this State.\\n82 Md., pages 29 and 30.\\nThe public policy of each State affecting public morals and the good order of society is in its own keeping, and its laws to maintain its standards, are not set aside because they are in conflict with those of another State in the Union, which might be more liberal or modern in its policy.\\nThere is a strong sympathetic appeal on behalf of the infant defendant at almost every angle from which this case might be considered. But the law cannot mitigate the embarrassment which she suffers in this jurisdiction in her effort to enforce property rights, and the responsibility for her perdicamen.t is on the man and woman who brought her into- this world.\\nFrom the foregoing it would appear that Grace Suzanne Holloway does not take any part of the trust estate created by the wills of John Q. A. Holloway and Susanna Holloway because she is not a child of John H. Holloway within the language and contemplation of those wills and the property has passed in remainder to the devisees named by them who were to take in remainder upon the contingency of the death of John E. Holloway without children him surviving, and a decree will be signed accordingly.\"}"
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+"{\"id\": \"2014022\", \"name\": \"STATE of Maryland v. Donald THOMAS\", \"name_abbreviation\": \"State v. Thomas\", \"decision_date\": \"1992-12-09\", \"docket_number\": \"No. 30\", \"first_page\": \"541\", \"last_page\": \"566\", \"citations\": \"328 Md. 541\", \"volume\": \"328\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:33:34.930302+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Maryland v. Donald THOMAS.\", \"head_matter\": \"616 A.2d 365\\nSTATE of Maryland v. Donald THOMAS.\\nNo. 30,\\nSept. Term, 1992.\\nCourt of Appeals of Maryland.\\nDec. 9, 1992.\\nGwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellant.\\nH. Mark Stichel (Edward K. Dunn, III, Piper and Marbury, William Kanwisher, Asst. Public Defender, all on brief), Baltimore, for appellee.\\nArgued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.\", \"word_count\": \"7386\", \"char_count\": \"45806\", \"text\": \"KARWACKI, Judge.\\nIn this post conviction case, we once again consider the issue of whether Donald Thomas is entitled to a new sentencing hearing for his murder of Sarah Spurling, on October 2, 1981, in Baltimore County. See State v. Thomas, 325 Md. 160, 599 A.2d 1171 (1992) (Thomas II); Thomas v. State, 301 Md. 294, 483 A.2d 6 (1984) (Thomas I), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985). In Thomas II, we set forth the proceedings which preceded our review of an order of the post conviction court vacating the death sentence imposed upon Thomas and ordering that he be granted a new sentencing hearing:\\n\\\"On November 18, 1982, a jury in the Circuit Court for Baltimore County convicted Donald Thomas of the first degree murders of Donald Spurling and his wife, Sarah. * At the same trial, Thomas was also found guilty of the first degree rape of Noel Wilkins, of committing two first degree sexual offenses upon Ms. Wilkins, and of robbing her at knife point. Having been previously given the required statutory notice that the death penalty would be sought for the first degree murders, Thomas elected to have the trial judge decide whether he should be executed for those crimes.\\n\\\"On December 13, 1982, Thomas was sentenced to life imprisonment for the murder of Donald Spurling, death for the murder of Sarah Spurling, concurrent terms of life imprisonment for the first degree rape and first degree sexual offenses, and a twenty-year consecutive sentence for the armed robbery. This Court affirmed the judgments of the circuit court as to both the convictions and the sentences, including imposition of the death sentence. [Thomas I, supra.] The Supreme Court of the United States denied Thomas's petition for writ of certiorari.\\n\\\"Thomas then filed a petition for post conviction relief. Thomas sought a new trial, or in the alternative, a new sentencing hearing. After conducting an evidentiary hearing on the petition, the court found no merit in the claims that Thomas had been improperly convicted but vacated his death sentence and ordered a new sentencing hearing. This relief was granted because the court concluded that trial counsel had failed to render Thomas effective assistance when he permitted Thomas to be reexamined by Dr. Michael Spodak following his convictions in preparation for Dr. Spodak's testimony at the sentencing hearing.\\\"\\nThomas II, 325 Md. at 165-66, 599 A.2d at 1173 (citations omitted). Also, in Thomas II, we recited the factual predicate for the order of the post conviction court:\\n\\\"In an indictment filed on November 9, 1981, Thomas was charged with the crimes of which he now stands convicted. He entered pleas of not guilty by reason of insanity and incompetency to stand trial. Pursuant to Maryland Code (1957, 1979 Repl.Vol.), Art. 59, \\u00a7 23-28, the court ordered that he be transferred to the Clifton T. Perkins Hospital Center for a mental examination and evaluation.\\n\\\"Dr. Spodak, a member of the staff at Clifton Perkins, after conducting a psychiatric examination of Thomas, prepared a 'psychiatric case work up report.' Reports were also prepared by one of the hospital's social workers who had interviewed Thomas and by a clinical psychologist who related his findings upon his testing of Thomas. On February 4, 1982, Thomas appeared at a conference at Clifton Perkins attended by Dr. Spodak, the social worker who had interviewed him, the clinical psychologist who had tested him, and three other staff psychiatrists. Thomas was further interviewed at this conference. It was the unanimous opinion of the psychiatrists present at that conference that [Thomas was competent to stand trial, and]\\n\\\" 'At the time of the alleged offenses, Mr. Thomas was not suffering from a mental disorder which caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.' \\\"\\nThose conclusions were reported to the court____\\n\\\"In light of the Clifton Perkins evaluation, R. Clark Kinsley, Esq., the public defender assigned as Thomas's trial counsel, arranged to have him examined by a psychiatrist of his choice, Dr. B.F. Beran. That examination produced no evidence with which to contest the evaluation of the Clifton Perkins staff, and Mr. Kinsley so advised the court at the outset of the trial on October 18, 1982. The court concluded that Thomas was competent to stand trial. Thomas was then re-arraigned and entered a plea of not guilty to all of the charges pending against him.\\n\\\"After the jury returned its verdicts, the State petitioned the court for permission to conduct a pre-sentence psychiatric evaluation of Thomas. It represented in that petition:\\n\\\" '1. That the Defendant was evaluated at the Clifton T. Perkins Hospital Center following his entry of a plea of not guilty by reason of insanity;\\n\\\" '2. That the findings of the Hospital Center are contained in a report to the Court dated February 4,1982;\\n\\\" '3. That it is desirable to supplement the original insanity evaluation with further interview(s) of the Defendant to develop material for presentation at sentencing;\\n\\\" '4. That Dr. Michael Spodak, who participated in the insanity evaluation, can conduct such further interview with the Defendant at the Baltimore County Detention Center and can do so within a few days of a court order authorizing such evaluation;\\n\\\" '5. That counsel for the Defendant has no objection to such an evaluation.' The court granted that petition, and Dr. Spodak interviewed Thomas on November 27, 1982. Before the interview began, Dr. Spodak advised Thomas that he had been 'retained by the State's Attorney's office . to evaluate him on certain issues concerning the death penalty and that depending on what he said and depending on my findings, I might very well be called as a witness to testify at the sentencing phase.' Dr. Spodak also testified that Thomas indicated that he understood that explanation and was willing to be interviewed at that time.\\n\\\"Dr. Spodak wrote to the office of the State's Attorney on November 30, 1982. He stated that based upon his several interviews with Thomas as a member of the staff of Clifton Perkins, the interview he conducted on November 27, and the review of records associated with the case he was of the opinion to a reasonable medical certainty that the murders of Donald and Sarah Spurling were not committed while the capacity of Thomas to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental incapacity, mental disorder, emotional disturbance or intoxication. He further opined that it is not unlikely that Thomas would engage in further criminal activities that would constitute a continuing threat to society. These opinions negated two possible circumstances which might mitigate against the death penalty pursuant to Md.Code (1957, 1982 Repl.Vol.), Art. 27, \\u00a7 413(g)(4) and (7).\\n\\\"At the sentencing hearing, the State called Dr. Spodak as a witness. Mr. Kinsley, who had been provided a copy of Dr. Spodak's report to the State's Attorney's office on November 30, 1982, objected to any opinions being expressed by Dr. Spodak. He argued that he was under the impression that Dr. Spodak would interview Thomas as a neutral expert from the Clifton T. Perkins Hospital Center when he consented to the interview of Thomas following the jury's verdicts. He stressed that, had he been aware that Dr. Spodak had been employed by the State's Attorney's office to conduct that evaluation, he would not have consented to the evaluation. The court overruled the objection and admitted Dr. Spodak's testimony and his November 30, 1982 report____\\n\\\"In his petition for post conviction relief, Thomas asserted that Kinsley, in allowing him to be interviewed without counsel by Dr. Spodak post-verdict and pre-sentence, had rendered him ineffective assistance of counsel, prejudicing him at sentencing in violation of his right to counsel under the Sixth Amendment. At the post conviction hearing, Thomas called Kinsley as his witness and questioned him extensively on his rationale for allowing Thomas to be re-examined by Spodak. Kinsley explained that he believed that Spodak's role in re-examining Thomas was that of a neutral expert from the Clifton T. Perkins Hospital Center, and that Spodak would therefore be impartial. He further testified that he instructed Thomas to cooperate fully with Spodak in the hope that something beneficial to Thomas might come from the examination. During cross-examination, the State attempted to elicit testimony from Kinsley regarding the results which he had received of Dr. Beran's pretrial psychiatric examination of Thomas. The court sustained Thomas's objection to that line of questioning. Following . the hearing ., the hearing judge . grant[ed] Thomas a new sentencing hearing but den[ied] him any post conviction relief from his convictions.\\\"\\nThomas II, 325 Md. at 166-69, 599 A.2d at 1173-75.\\nIn Thomas II, we held that the post conviction court committed reversible error when it sustained Thomas's objection to the State's attempt to elicit from Kinsley his understanding of the results of Dr. Beran's psychiatric evaluation. 325 Md. at 173, 599 A.2d at 1177. In reaching that conclusion, we rejected Thomas's assertion that any conclusions reached by Dr. Beran were protected from disclosure by Kinsley because of the attorney-client privilege. Id. at 173-74, 599 A.2d at 1177-78. In light of the post conviction court's error and the standards by which we measure ineffective assistance of counsel, which were set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we \\\"remandfed] the case for admission of that excluded testimony and further consideration, in light of that evidence, of the reasonableness of Kinsley's decision to permit Dr. Spodak's post-verdict, pre-sentence interview.\\\" Thomas II, 325 Md. at 173, 599 A.2d at 1177.\\nWe recognized that \\\"[t]he Supreme Court [had] stressed in Strickland that '[a] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' \\\" Thomas II, 325 Md. at 173, 599 A.2d at 1177 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695) (emphasis in Thomas II). In remanding the case to the post convic tion court, we stated that \\\"what Dr. Beran related to Mr. Kinsley with regard to his psychiatric evaluation of Thomas was highly relevant to the reasonableness of the strategy employed by Kinsley in agreeing to permit Dr. Spodak to interview Thomas.\\\" Thomas II, 325 Md. at 175, 599 A.2d at 1178.\\nIn Thomas II, in addition to Kinsley's decision to permit Dr. Spodak's post-verdict, pre-sentence interview, Thomas alleged that Kinsley rendered ineffective assistance of counsel when he failed to consult with another psychiatrist or psychologist prior to Thomas's sentencing hearing. 325 Md. at 178-79, 599 A.2d at 1179-80. Again, in light of the post conviction court's error and the teachings of Strickland, we held \\\"that without the admission of evidence revealing what Kinsley knew from Dr. Beran's pre-trial psychiatric evaluation of Thomas, a court cannot fully evaluate Kinsley's effectiveness in this regard.\\\" Id. at 179, 599 A.2d at 1180.\\nWe, therefore, remanded the case to the post conviction court for admission of the erroneously excluded evidence and further consideration, in light of that evidence, of the reasonableness of both of these decisions by Kinsley.\\nI.\\nOn April 9, 1992, the circuit court held the supplemental post conviction hearing mandated by Thomas II. At this evidentiary hearing, Thomas presented testimony from two witnesses, Dr. Beran and R. Clark Kinsley. Dr. Beran testified on direct examination that prior to Thomas's trial he had never indicated to Kinsley that he, Dr. Beran, had reached any preliminary or informal conclusions adverse to the defense on insanity, competency, or any other psychiatric or psychological issues that might arise at the sentencing phase of Thomas's trial. In fact, Dr. Beran testified that he was \\\"quite optimistic in terms of . providing very significant data to help [Thomas's] insanity defense,\\\" and that he had communicated this to Kinsley. Dr. Beran testified that he was prevented from reaching any formal conclusion because Kinsley had failed to provide the necessary \\\"leadership,\\\" particularly in failing to help Dr. Beran formulate the proper questions that he was to ask Thomas as the examining psychiatrist.\\nOn cross-examination, Dr. Beran acknowledged that he had evaluated other defendants who had been charged with murder for the purpose of determining the validity of an insanity defense. Dr. Beran conceded that there was much correspondence from Kinsley that was materially inconsistent with Dr. Beran's current testimony that he could have provided Thomas with helpful opinions but for Kinsley's lack of \\\"leadership\\\" and support. Dr. Beran acknowledged receiving a letter written by Kinsley in which Kinsley authorized and urged Dr. Beran \\\"to do all needed and necessary tests and bring in any required discipline to augment [his psychiatric] studies in this case.\\\" Moreover, Kinsley stated in this letter that he was willing to obtain whatever court order necessary to authorize any such tests.\\nDr. Beran also testified on cross-examination that he had made some partial findings, which he had conveyed to Kinsley, that supported Thomas's insanity defense. For example, Dr. Beran testified that \\\"from the interviews [with Thomas] I could see that the patient had what we call poor ego boundary definition. There was a problem consistent with possible occurrences of psychosis at different times, possible homosexual panic, possible paranoid kind of development, and that needed to be explored further.\\\" Dr. Beran stated repeatedly on cross-examination that he had conveyed these findings to Kinsley. When confronted with his only letter to Kinsley dated October 14, 1982, in which none of these findings is mentioned, Dr. Beran testified that he communicated these findings orally to Kinsley. During cross-examination, Dr. Beran acknowledged that in evaluating Thomas he had read a psychological evaluation report on Thomas written by Professor Robert Brown, a psychologist whom Kinsley had authorized Dr. Beran to retain. Brown's report indicated among other things that there was \\\"no indication for psychosis, for obvious CNS dysfunction, nor for major emotional distress.\\\" While disputing Brown's findings as being contrary to his findings that he purportedly had conveyed orally to Kinsley, Dr. Beran conceded, under questioning by both the State and the trial court, that Brown's findings were consistent with a conclusion that Thomas was not only sane but had a propensity for future dangerousness.\\nFollowing Dr. Beran's testimony, Thomas called Kinsley as his second witness. Under questioning by Thomas's post conviction counsel, Kinsley testified that Dr. Beran had communicated unequivocally his unsuitability to being called as a defense witness in Thomas's case. Kinsley testified as follows:\\n\\\"I do recall that [Dr. Beran] was very much obsessed with the thought that there was no help that he could give this Defendant. He asked me repeatedly don't call me as a witness, I can't help your man, and indeed it is possible I could be very harmful to him, very harmful. He emphasized that over and over again.\\\"\\nIn a colloquy with the trial court, Kinsley repeated his recollection of Dr. Beran's communications:\\n\\\"THE COURT: When did he say to you don't call me as a witness?\\n\\\"[KINSLEY]: On my last \\u2014 probably on the telephone, but specifically I know for sure when I looked him eyeball to eyeball in his office and pinned him down; I can't help you, I can't help you, don't call me as a witness, I could be dangerous, you wouldn't want me as a witness, I could hurt him.\\n\\\"Well, he convinced me that he could hurt [Thomas]. So, there was nothing that would support the insanity plea, number one.\\\"\\nContrary to Dr. Beran's testimony, Kinsley testified that he inquired of Dr. Beran whether he could help Thomas, should he be convicted, by testifying at the sentencing hearing on issues of mitigation. In recalling why he decid ed not to call Dr. Beran to testify at the sentencing hearing, Kinsley testified:\\n\\\"I'll tell you what he said and, more particularly, what he did. I think it was his body language more than what he said. When I was discussing what possible help he could be at the sentencing hearing and, in particular, what kind of person could we expect if he was ever released back into society, I recall very vividly the expression on his face as though he had bit into a sour lemon and squeezed up like he was experiencing a chill. When I asked him what kind of man he would be, he said, Bad, bad man. Now, you don't go back to a guy like that and put him on the stand.\\\"\\nKinsley also testified to the impact that Professor Brown's psychological evaluation report on Thomas had on his decision to permit Dr. Spodak's post-verdict, pre-sentence interview of Thomas. During his testimony, Kinsley was referred to the following two particularly damning statements that appeared in Brown's report:\\n\\\"[Thomas's] tendency to present himself as passively compliant, unassertive, and emotionally unreactive also leaves him susceptible to being overwhelmed by strong affect, with a potential for sudden explosive outbursts (as e.g. of angriness or rage) that may not seem to make much sense to himself or others. In the present instance any perceived threat to his life (or to manly self-esteem) might well have acted to trigger the uncontrolled explosion of fear and rage which apparently took place, and for which he seems to have little clear recollection.\\\"\\nReferring to the first sentence, Kinsley testified that that sentence \\\"worried the devil out of me to have the judge hear that when I'm asking in mitigation.\\\" Kinsley testified that in his opinion, the second sentence reflected adversely on Thomas's aggressiveness and potential for violence in the future. In fact, he testified that he believed \\\"it was dynamite against us.\\\" Kinsley's testimony indicated that his post-trial decision to permit Thomas to be interviewed by Dr. Spodak was influenced significantly by both Dr. Beran's communications and the report by Professor Brown. Kinsley testified:\\n\\\"Well, there was nothing to indicate that [Thomas's] personality changed so that he wouldn't have this sudden explosion of rage. So, I would be very naive to think that it couldn't possibly happen again. Then you couple that with what I found out from Dr. Beran, that if released to society what kind of person he would be, he would be bad, bad, you don't need much more to convince you.\\\"\\nKinsley's responses to the following questions asked of him during the supplemental post conviction hearing are particularly instructive on characterizing the reasonableness of his actions. Two of these questions were propounded by the post conviction court and answered as follows:\\n\\\"THE COURT: Once [Dr. Beran] said to you I can't help you, don't call me to the stand, what steps did you take to get another doctor involved on behalf of your client?\\n\\\"[KINSLEY]: Well, . the file contains a very fine written medical report from Professor Brown which lent no help to me.\\n\\\"So we have three psychiatrists at Clifton T. Perkins saying he is sane,[ ] nothing more than a bland report really; we had two medical men that we brought into the case saying he is sane, there is nothing we can do to help you. The Public Defender doesn't have the money to shop around for a favorable report. I had enough information from five medical people to convince me that shopping around for a favorable report wasn't our business and I didn't do any more shopping or didn't do any shopping____\\n\\\"THE COURT: . What were you thinking at the time that you said sure, go ahead? Why did you let [Thomas] go [to the interview with Dr. Spodak]?\\n\\\"[KINSLEY]: I was thinking that Dr. Spodak, who I thought was still an employee of the State of Maryland, that he was a disinterested, fair, impartial psychiatrist. I could get nothing out of my medical magicians and I thought that if we have Spodak go down who gave us a report initially, gave it to the State as well as a copy to me, it was a bland report, I thought there was a possibility, not having anything of my own to support insanity or let's say a mitigating medical opinion, I thought why not.\\\"\\nKinsley's responses to two questions propounded by James Gentry, the Assistant State's Attorney, are particularly salient:\\n\\\"[MR. GENTRY]: Did you have the hopes of obtaining a favorable opinion or favorable diagnosis from Dr. Spodak at the time of sentencing when [Thomas] was being interviewed for the purposes of sentencing?\\n\\\"[KINSLEY]: Something to hang my hat on. Whether you call it a diagnosis or not, I don't know, but anything to convince poor Judge Hormes \\u2014 I wish he were alive today to testify \\u2014 something to convince him that the death penalty should not have been imposed against this poor person.\\n\\\"[MR. GENTRY]: Correct me if I'm wrong. The reason that you were hopeful and the reason that you didn't object to Dr. Spodak's interview is because the other doctor's had given you nothing favorable and you were hopeful at least that you would have something favorable to hang your hat on?\\n\\\"[KINSLEY]: That is exactly the case.\\\"\\nFollowing the conclusion of Kinsley's testimony, the post conviction court heard final arguments and issued its ruling on April 20, 1992. The post-conviction court determined that Thomas was denied effective assistance of counsel when Kinsley permitted Dr. Spodak's post-verdict, pre-sen tence interview, and for the second time, granted Thomas a new sentencing hearing.\\nThe post conviction court based its ruling on two grounds. First, the court stated that, in light of Dr. Beran's communications to Kinsley that he could not help Thomas and may in fact harm Thomas if called at the sentencing hearing, no reasonable defense attorney would allow even an independent psychiatric investigation. The post conviction court reasoned that \\\"[i]f your own expert says I'll hurt, then it is absurd to suggest that an independent qualified expert is going to find something that will help.\\\" For the second ground on which the post conviction court relied in granting Thomas relief, the court stated that, even if the decision to permit the interview by Dr. Spodak was permissible, Kinsley should have attended the interview and failing to do so rendered ineffective assistance of counsel.\\nAdditionally, on the issue of whether Kinsley rendered ineffective assistance of counsel by failing to consult with another psychiatrist or psychologist prior to Thomas's sentencing, which was the second question in Thomas II that was to be answered on remand, the post conviction court rejected this claim and denied Thomas any relief on this ground.\\nAfter a brief review of the well established Strickland principles, we will address in seriatim each of the post conviction court's conclusions as to Kinsley's performance.\\nII.\\nAs noted earlier, the standards by which we measure whether Thomas received effective assistance of counsel were promulgated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Thomas II, 325 Md. at 170, 599 A.2d at 1176, we quoted the standard established by the Strickland Court at 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693:\\n\\\" 'A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a convic tion or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.' \\\"\\nAs noted in Thomas II, 325 Md. at 172, 599 A.2d at 1177, we first applied the Strickland tests in Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985), revisited its teachings in State v. Tichnell, 306 Md. 428, 509 A.2d 1179, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986), rehearing denied, 479 U.S. 1060, 107 S.Ct. 942, 93 L.Ed.2d 992 (1987); State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988); and Bowers v. State, 320 Md. 416, 578 A.2d 734 (1990), and since Thomas II, have utilized its teachings again in Williams v. State, 326 Md. 367, 605 A.2d 103 (1992).\\nTo establish that counsel's performance was deficient, a \\\"defendant must show that counsel's representation fell below an objective standard of reasonableness.\\\" Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Bowers, 320 Md. at 424, 578 A.2d at 738. In Thomas II, we discussed the deferential review that is accorded to counsel's performance:\\n\\\" 'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to elimi nate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' ' \\\"\\n325 Md. at 171, 599 A.2d at 1176 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95) (citations omitted). Thus, as the Supreme Court cautioned in Strickland and we repeated in Thomas II:\\n\\\"[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.\\\"\\n466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; 325 Md. at 172, 599 A.2d at 1177.\\nEven if a defendant is able to satisfy the deficient performance prong of Strickland's two-prong test, the defendant must show that the deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Thomas II, 325 Md. at 170, 599 A.2d at 1176. In Bowers v. State, we interpreted the prejudice component to require a substantial or significant possibility, rather than a reasonable probability, that but for counsel's unprofessional errors the result of the proceeding would have been different. 320 Md. at 425-27, 578 A.2d at 738-39. We applied this prejudice standard in Williams v. State, 326 Md. 367, 605 A.2d 103 (1992) and will not retreat from it in the instant case.\\nAs we recognized in Harris, \\\" 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' \\\" 303 Md. at 696, 496 A.2d at 1079 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699). The Supreme Court stated: \\\"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.\\\" 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. Finally, \\\"both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.\\\" Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 700; Harris, 303 Md. at 696, 496 A.2d at 1079.\\nIII.\\nIn determining that Thomas received ineffective assistance of counsel, the post conviction court concluded that Kinsley's decision to allow the post-verdict, pre-sentence interview of his client by Dr. Spodak, after having received categorically adverse psychiatric opinions from Dr. Beran, fell below the objective standard of reasonableness demanded by Strickland. On remand, the post conviction court was confronted with two distinct versions of the nature of the communications that occurred nearly ten years ago between Dr. Beran and Kinsley. Dr. Beran testified that he was optimistic about providing data to support Thomas's insanity defense and denied that he had communicated any conclusions to Kinsley regarding possible sentencing issues. Directly contrary to Dr. Beran's testimony, Kinsley testified that Dr. Beran indicated that he could not provide support for Thomas's insanity plea. Moreover, Kinsley testified repeatedly that Dr. Beran urged Kinsley not to call him as a defense witness at either the trial or the sentencing hearing, inasmuch as his testimony could harm Thomas. The post conviction court resolved this dispute by accepting Kinsley's version of the communications. The post conviction court stated: \\\"I am satisfied that Kinsley was told more than I cannot help. I'm satisfied Kinsley was told my testimony would affirmatively harm him.\\\"\\nIn light of Dr. Beran's communications to Kinsley, the post conviction court concluded that no reasonably competent defense attorney would have permitted Thomas to be interviewed by an independent psychiatrist following the verdict and prior to sentencing. We disagree.\\nWere we to conclude that Kinsley's decision amounted to ineffectiveness of counsel, we would be ignoring several of Strickland's tenets. The Strickland Court stated that the performance inquiry is simply \\\"whether counsel's assistance was reasonable considering all the circumstances.\\\" 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. In addition, \\\"strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.\\\" Id. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Moreover, in deciding ineffectiveness claims, we must apply a heavy measure of deference to counsel's judgments and \\\"judge the reasonableness of counsel's challenged conduct on the facts of the particular case viewed as of the time of counsel's conduct.\\\" Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.\\nAt the time Kinsley consented to Dr. Spodak's post-verdict, pre-sentence interview, Kinsley's client stood convicted of two first degree murders and was awaiting the sentencing hearing at which the State was seeking the death penalty. At that time, Thomas had been pronounced sane and competent to stand trial by four independent psychiatrists employed at the Clifton T. Perkins Hospital Center, one of whom was Dr. Spodak. Similarly, the experts brought into the case by Kinsley, Dr. Beran and Professor Brown, could not provide any favorable medical opinions at the sentencing hearing. Kinsley recognized that he did not have unlimited funds to shop around for a favorable report. At the time Kinsley made the strategic and tactical decision to allow Thomas to be interviewed by Dr. Spodak, he was trying to obtain something that he did not have, i.e., a favorable medical opinion which he could use at sentencing.\\nOnly by viewing Kinsley's decision in a vacuum, by using \\\"the distorting effects of hindsight,\\\" 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694, and by failing to accord a heavy measure of deference to Kinsley's judgment, Id. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, could we conclude that Kinsley's decision to permit the Dr. Spodak interview was not a reasonable tactical decision. Each of these qualifications is contrary to Strickland's teachings. We, therefore, reject Thomas's assertion that Kinsley's decision to permit the Dr. Spodak interview was not within the wide range of professionally reasonable judgments allowable under Strickland. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.\\nIn Thomas II, 325 Md. at 173, 599 A.2d at 1177, we hypothesized: \\\"[I]f Kinsley had been told by Dr. Beran that Thomas suffered from no mental impairments and exhibited the likelihood of future danger to society, then Kinsley's decision to allow further examination in the hope of obtaining favorable diagnosis may well have been reasonable.\\\" Today, we answer affirmatively our own hypothetical and end Thomas's \\\"Monday morning quarterbacking.\\\" Based on the testimony introduced upon remand and the post conviction court's findings of fact, we hold that Kinsley's decision to permit the post-verdict, pre-sentence interview was a reasonable tactical decision consistent with Thomas's constitutional guarantee of effective assistance of counsel.\\nIV.\\nIn granting Thomas a new sentencing hearing, the post conviction court alternatively ruled that, even if the decision to permit the interview by Dr. Spodak was reasonable, Kinsley nevertheless rendered ineffective assistance of counsel by failing to attend the interview. For the reason that Thomas has not satisfied either prong of the Strickland test regarding this decision by Kinsley, we disagree.\\nKinsley testified that he believed the post-verdict interview with Dr. Spodak would be conducted in a manner similar to the normal pretrial competency or insanity evaluations, in which impartial psychiatrists employed by the Clifton T. Perkins Hospital conduct the examination. Kinsley testified that counsel normally did not attend those psychiatric evaluations. Due to Dr. Spodak's affiliation with the Clifton T. Perkins Hospital, Kinsley testified that he saw no reason to protect Thomas from an ostensibly neutral psychiatrist and testified further that he believed it was beneficial for Dr. Spodak to interview Thomas alone.\\nSimilar to Kinsley's decision to allow the post-verdict interview, the decision not to attend the interview was a reasonable strategic decision. As we previously noted, the Strickland Court stated that \\\"strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.\\\" In light of his testimony regarding the reasons why he did not attend the interview and Strickland's heavy measure of deference accorded to Kinsley's judgments, we hold that Kinsley's decision not to attend the interview was a professionally reasonable judgment.\\nAssuming arguendo that Kinsley's decision not to attend the interview was professionally unreasonable, Thomas has made no showing of prejudice regarding Kinsley's failure to attend the interview. As we noted in Harris, to satisfy the Strickland test a defendant must show both that counsel's performance was deficient, and that the deficient performance prejudiced the defendant. 303 Md. at 696, 496 A.2d at 1079. To satisfy the prejudice prong, Thomas must show that there is a substantial or significant possibility that had Kinsley attended the interview the result of the sentencing hearing would have been different. Bowers, 320 Md. at 427, 578 A.2d at 739. In his brief, Thomas failed to address the issue of prejudice regarding Kinsley's decision not to attend the interview. At oral argument, Thomas similarly failed to point to any evidence of prejudice.\\nThus, Thomas has failed to satisfy both the deficient performance component and the prejudice component of the Strickland test regarding Kinsley's decision not to attend the interview.\\nVI.\\nOn the second issue left open on remand, whether Kinsley rendered ineffective assistance by failing to consult with another psychiatrist or psychologist prior to Thomas's sentencing hearing, the post conviction court rejected Thomas's claim and denied him any post conviction relief on that ground. The post conviction court resolved a dispute between the testimony of Dr. Beran and Kinsley when it found that Kinsley did consult Dr. Beran regarding sentencing issues. The post conviction court found that Kinsley decided not to call Dr. Beran or Professor Brown as defense witnesses as their testimony might harm Thomas. Having consulted with Dr. Beran with regard to sentencing issues and examined Professor Brown's psychological evaluation report on Thomas, Kinsley acted reasonably in not seeking to consult another psychiatrist or psychologist.\\nSimilar to Kinsley's other tactical decisions which Thomas has attacked, we agree with the post conviction court and hold that Kinsley's decision not to consult with another psychiatrist or psychologist prior to the sentencing hearing was a professionally reasonable judgment.\\nJUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY WITH INSTRUCTIONS TO DENY THE PETITION FOR POST CONVICTION RELIEF.\\n. A statement of facts describing the murders of Sarah Spurling and her husband, Donald Spurling, appears in Thomas I, 301 Md. at 301-06, 483 A.2d at 10-12.\\n. The record indicates that there were actually four psychiatrists, including Dr. Spodak, that took part in the psychiatric evaluation at the Clifton T. Perkins Hospital Center on February 4, 1982. See supra p. 545.\\n. As pointed out by one of the dissenters in Thomas II:\\n\\\"The State does not seriously contend, except insofar as the argument regarding counsel's failure to attend the psychiatric interview is concerned, that counsel's conduct, if deficient, did not prejudice [Thomas]. In any event, the trial court's findings in that regard are quite clear, and to my mind, amply supported by the record.\\\"\\nThomas II, 325 Md. at 193 n. 1, 599 A.2d at 1187 n. 1 (Bell, J., dissenting). In addressing Kinsley's decision to permit the post-verdict, pre-sentence interview, we agree with Judge Bell on the issue of prejudice. In determining whether the decision to permit the interview amounted to ineffective assistance of counsel, we address only the deficient performance prong of Strickland.\\n. The Supreme Court has acknowledged \\\"that 'an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination.'\\\" Estelle v. Smith, 451 U.S. 454, 470 n. 14, 101 S.Ct. 1866, 1877 n. 14, 68 L.Ed.2d 359, 374 n. 14 (1981) (quoting Estelle v. Smith, 602 F.2d 694, 708 (5th Cir.1979)).\"}"
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+"{\"id\": \"2045028\", \"name\": \"STATE of Maryland v. Junius Edward SHAW\", \"name_abbreviation\": \"State v. Shaw\", \"decision_date\": \"1990-12-06\", \"docket_number\": \"No. 113\", \"first_page\": \"247\", \"last_page\": \"247\", \"citations\": \"321 Md. 247\", \"volume\": \"321\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:43:25.019480+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Maryland v. Junius Edward SHAW.\", \"head_matter\": \"582 A.2d 793\\nSTATE of Maryland v. Junius Edward SHAW.\\nNo. 113\\nSept. Term, 1990.\\nCourt of Appeals of Maryland.\\nDec. 6, 1990.\\nJ. Joseph Curran, Jr., Atty. Gen. and Sarah E. Page, Asst. Atty. Gen., Baltimore, for petitioner.\\nStephen Harris, Public Defender and Jos\\u00e9 Felip\\u00e9 Anderson, Asst. Public Defender, Baltimore, for respondent.\\nSubmitted to MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ.\", \"word_count\": \"168\", \"char_count\": \"980\", \"text\": \"ORDER\\nPER CURIAM.\\nThe Court having considered and granted the petition for writ of certiorari in the above captioned case, it is this 6th day of December, 1990\\nORDERED, by the Court of Appeals of Maryland, that the judgment of the Court of Special Appeals be, and it is hereby, reversed and the case remanded to the Court of Special Appeals for reconsideration in light of State v. Hall, 321 Md. 178, 582 A.2d 507 (1990) (No. 2, September Term, 1990, decided on December 3, 1990). Costs in this Court and in the Court of Special Appeals to be paid by Junius Edward Shaw.\"}"
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+"{\"id\": \"2064061\", \"name\": \"ST. LEONARD SHORES JOINT VENTURE v. SUPERVISOR OF ASSESSMENTS OF CALVERT COUNTY\", \"name_abbreviation\": \"St. Leonard Shores Joint Venture v. Supervisor of Assessments\", \"decision_date\": \"1986-09-30\", \"docket_number\": \"No. 54\", \"first_page\": \"441\", \"last_page\": \"449\", \"citations\": \"307 Md. 441\", \"volume\": \"307\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:38:14.924356+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ST. LEONARD SHORES JOINT VENTURE v. SUPERVISOR OF ASSESSMENTS OF CALVERT COUNTY.\", \"head_matter\": \"514 A.2d 1215\\nST. LEONARD SHORES JOINT VENTURE v. SUPERVISOR OF ASSESSMENTS OF CALVERT COUNTY.\\nNo. 54,\\nSept. Term, 1985.\\nCourt of Appeals of Maryland.\\nSept. 30, 1986.\\nStephen L. Clagett, Prince Frederick, for appellant.\\nKaye Brooks Bushel, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.\\nArgued before MURPHY, C.J., and SMITH , ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.\\nSmith, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.\", \"word_count\": \"1982\", \"char_count\": \"11771\", \"text\": \"COLE, Judge.\\nThe question presented in this case is whether the Supervisor of Assessments of Calvert County erred in determining the full cash value, for property tax purposes, of 105 unsold lots in a subdivision without taking into account the projected \\\"sell-out period\\\" of the lots.\\nWe distill the facts giving rise to this issue as follows. In 1978, appellant, St. Leonard Shores Joint Venture, purchased a large tract of waterfront land in Calvert County, Maryland. In July and August of 1979, appellant recorded subdivision plats, which subdivided the property into 117 lots. From the time of subdivision to January 1, 1982, only 12 of the lots were sold. Appellee, the Supervisor of Assessments of Calvert County (\\\"Supervisor\\\"), determined the full cash value of the remaining 105 lots to be $2,635,-000 as of January 1, 1982, the date of finality. The Supervisor reached this figure by determining the full cash value of each individual subdivision lot and by combining these values. The Supervisor used this method of assessment based on a directive issued by the State Department of Assessments and Taxation (SDAT). The SDAT directive, issued November 13, 1980, provides,\\nThe valuation of subdivided lots should consider each lot as a single legal entity. Each lot should be valued at its full cash value as of the date of finality regardless of ownership. This valuation should consider the highest and best use of each individual lot. Bulk ownership should not be considered.\\nAppellant appealed the valuation of the lots to the Property Tax Assessment Appeal Board for Calvert County and argued that the Supervisor had assessed the lots at more than full cash value. The Board rejected appellant's argument and affirmed the Supervisor's assessment. Appellant then appealed to the Maryland Tax Court and that court, after a hearing held before one of its examiners, also affirmed the assessment. Still seeking redress, appellant next appealed to the Circuit Court for Calvert County. By opinion and order filed February 2, 1984, the circuit court reversed the Tax Court's decision. In so doing, the circuit court declared that the \\\"sell-out period\\\"\\u2014the estimated period of time required to sell all of the lots\\u2014must be considered in determining the full cash value of the lots and that the SDAT directive should be disregarded because it removes the \\\"sell-out period\\\" from the assessor's considera tion. Because the Supervisor failed to consider the \\\"sell-out period\\\" in assessing the property in question, the circuit court concluded that his assessment of the lots was erroneous. The Supervisor appealed the circuit court's decision to the Court of Special Appeals. In Supervisor v. St. Leonard Shores Joint Ven., 61 Md.App. 204, 486 A.2d 206 (1985), the intermediate appellate court reversed the circuit court and held that the circuit court had erroneously reversed the Tax Court. We granted appellant's petition for certiorari in order to address the important question presented.\\nI\\nAppellant contends that the Supervisor assessed the 105 unsold subdivision lots at more than their full cash value because the Supervisor failed to consider the length of time necessary to sell all of the lots. Because this case focuses upon the Supervisor's determination of the full cash value of the subdivision lots, we begin our analysis by examining the statutory requirement of \\\"full cash value.\\\" Article 81, \\u00a7 14(b)(l)(i) provides that \\\"[a]ll real property required by this article to be assessed shall be valued at its full cash value on the date of finality.\\\" In Rogan v. Commrs. of Calvert County, 194 Md. 299, 71 A.2d 47 (1950), this Court addressed the determination of full cash value. Judge Delaplaine, writing for the Court, declared:\\nOrdinarily the cash value of property is the market value. Schley v. Montgomery County Com'rs, 106 Md. 407, 410, 67 A. 250. But, as Justice White said in San Francisco National Bank v. Dodge, 197 U.S. 70, 25 S.Ct. 384, 386, 49 L.Ed. 669, the market value of property is the value a willing purchaser will pay for it to a willing seller in open market, eliminating exceptional and extraordinary conditions giving the property temporarily an abnormal value.\\nId. [194 Md.] at 311, 71 A.2d at 54.\\nSince Rogan, we have repeatedly recognized the willing purchaser\\u2014willing seller standard as the ordinary mode of measuring full cash value. See, e.g., Supervisor v. Ort Children Tr., 294 Md. 195, 201, 448 A.2d 947, 950 (1982), Samet v. Supervisor of Assess., 290 Md. 357, 359-60, 430 A.2d 73, 74 (1981); Shell Oil Co. v. Supervisor, 278 Md. 659, 666, 366 A.2d 369, 373-74 (1976); State Dept. of A & T v. Greyhound Comp., 271 Md. 575, 586, 320 A.2d 40, 45-46 (1974); Tax Comm. v. Brandt Cabinet Works, 202 Md. 533, 545, 97 A.2d 290, 295 (1953). Thus, for purposes of measuring full cash value, the assessor should assume that a willing buyer and a willing seller wish to engage in a hypothetical sale of the property to be assessed.\\nIn disputing the Supervisor's assessment of the 105 unsold lots, appellant emphasizes that \\\"[t]he problem . is that you didn't have 105 buyers, you had twelve\\u2014seven the first year and five the next year.\\\" Appellant's argument misses the point. Regardless of whether a buyer for each lot actually exists, the assessor is required to assess each lot as if a willing buyer exists. This is not to say that a glut on the market should not be considered. We think, however, that the condition of the real estate market is adequately reflected in the price that the hypothetical buyer would be willing to pay. Therefore, we reject appellant's contention relating to the \\\"sell-out period\\\" of the lots.\\nII\\nAppellant also contends that the Tax Court's decision is not supported by substantial evidence, as required by Maryland Code (1957, 1980 Repl.Vol., 1985 Cum.Supp.), Art. 81, \\u00a7 229(o). This section provides, \\\"In any case, the circuit court for the county shall determine the matter upon the record made in the Maryland Tax Court. The circuit court shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.\\\" Id. (emphasis supplied).\\nWe have often addressed the scope of judicial review where an administrative agency's decision is attacked on the ground that it is not supported by substantial evidence. See e.g., Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 838-39, 490 A.2d 1296, 1302 (1985); Balto. Lutheran High Sch. v. Empl. Sec. Adm., 302 Md. 649, 660-63, 490 A.2d 701, 708 (1985); Comptroller v. Haskin, 298 Md. 681, 693-94, 472 A.2d 70, 76-77 (1984); Annapolis v. Annap. Waterfront Co., 284 Md. 383, 397-400, 396 A.2d 1080, 1088-89 (1979); Bulluck v. Pelham Wood Apts., 283 Md. 505, 512-17, 390 A.2d 1119, 1123 (1978); Shell Oil Co. v. Supervisor, 278 Md. 659, 670, 366 A.2d 369, 375 (1976); Insurance Comm'r v. Nat'l Bureau, 248 Md. 292, 309-10, 236 A.2d 282, 291-92 (1967). As set forth in these cases, our task is to determine \\\"whether a reasoning mind reasonably could have reached the factual conclusion that the agency reached.\\\" Balto. Lutheran High Sch. v. Empl. Sec. Adm., supra, 302 Md. at 662, 490 A.2d at 708 (citing Bulluck v. Pelham Wood Apts., supra). See also Comptroller v. Diebold, Inc., 279 Md. 401, 407, 369 A.2d 77, 81 (1977); Fairchild Hiller Corp. v. Supervisor, 267 Md. 519, 521, 298 A.2d 148, 149 (1973). In carrying out this task, it is not our function to engage in judicial fact-finding or to substitute our judgment for that of the agency. See Ramsay, Scarlett & Co. v. Comptroller, supra, 302 Md. at 838, 490 A.2d at 1303; Annapolis v. Annap. Waterfront Co., supra, 284 Md. at 398, 396 A.2d at 1089; Comptroller v. Diebold, Inc., 279 Md. 401, 407, 369 A.2d 77, 81 (1977); Insurance Comm'r v. Nat'l Bureau, supra, 248 Md. at 309-10, 236 A.2d at 292. Moreover, we have stated that it is \\\"the province of the agency to resolve conflicting evidence, [and] where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.\\\" Bulluck v. Pelham Wood Apts., supra, 283 Md. at 513, 390 A.2d at 1124, quoted in Balto. Lutheran High Sch. v. Empl. Sec. Adm., supra, 302 Md. at 663, 490 A.2d at 708.\\nWith these principles in mind, we examine the facts of the instant case. Appellant argues that the record provided no basis upon which the circuit court might have affirmed the Tax Court's decision. We disagree. Appel lant's argument simply overlooks a key portion of the record before the Tax Court: the testimony of the Supervisor as to the manner in which he assessed the property. The Supervisor testified that he valued \\\"each of the hundred and five lots, as of the date of finality, . based upon its market value; which was determined by the sales in St. Leonard Shores as well as comparable subdivisions.\\\" The record indicates that twelve lots in St. Leonard Shores had been sold within three years of the date of finality. We think that these sales, as well as the sales in similar subdivisions, provided an ample basis from which the Tax Court could reasonably conclude that the Supervisor had correctly assessed the subdivision lots.\\nMoreover, the Tax Court expressly rejected the method of valuation upon which appellant relies. The hearing examiner, in his written opinion and recommendation, declared that\\n[appellant's approach to fair market value is a staged sell-out over a period of years, with [appropriate] conveying charges etc., and finally reducing the end result to a net profit figure. This is good, sound business practice. Unfortunately, it is not the way the assessment process works. To implement [appellant's approach to value, would be to put the Assessor in the position of being a joint venturer with [appellant]: if all the lots sold in one year, we have a value certain; if all lots sell over a period of years, we have a value dependent upon the future whims of the market place.\\nWe have often stated that the assessment of property is not an exact science and that assessors have reasonable latitude in selecting a method of valuation that arrives at full cash value. See, e.g., Supervisor v. Southgate Harbor, 279 Md. 586, 593, 369 A.2d 1053, 1057 (1977); Macht v. Dep't of Assessments, 266 Md. 602, 608-09, 296 A.2d 162, 166 (1972); Sears, Roebuck v. State Tax Comm., 214 Md. 550, 557-58, 136 A.2d 567, 571 (1957). Here, the Supervisor chose to use the comparable sales approach in valuing each of the unsold lots in the subdivision. We think that this method of valuation provided a reasonable means of determining full cash value. Further, it complied with the SDAT directive, which required the assessment of subdivision lots on an individual basis. We conclude that the Tax Court was correct in affirming the Supervisor's assessment.\\nJUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. APPELLANT TO PAY THE COSTS.\\n. Maryland Code (1957, 1980 Repl.Vol.), Art. 81, \\u00a7 14(b)(l)(i) provides, 'All real property required by this article to be assessed shall be valued at its full cash value on the date of finality.\\\"\"}"
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+"{\"id\": \"2064105\", \"name\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James Sommervell DAWSON III\", \"name_abbreviation\": \"Attorney Grievance Commission v. Dawson\", \"decision_date\": \"1986-09-04\", \"docket_number\": \"Misc. Docket (Subtitle BV) No. 22\", \"first_page\": \"404\", \"last_page\": \"405\", \"citations\": \"307 Md. 404\", \"volume\": \"307\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:38:14.924356+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James Sommervell DAWSON III.\", \"head_matter\": \"514 A.2d 23\\nATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James Sommervell DAWSON III.\\nMisc. Docket (Subtitle BV) No. 22,\\nSept. Term, 1985.\\nCourt of Appeals of Maryland.\\nSept. 4, 1986.\\nMelvin Hirshman, Bar Counsel and Kendall Calhoun, Asst. Bar Counsel to the Atty. Grievance Com\\u2019n of Md., for petitioner.\\nJames Sommervell Dawson III, pro se.\\nArgued before MURPHY, C.J., and SMITH , ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.\\nSmith, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Art. IV, Sec. 3A, he also participated in the decision and the adoption of this opinion.\", \"word_count\": \"387\", \"char_count\": \"2297\", \"text\": \"ORDER\\nPER CURIAM.\\nWHEREAS, the Court passed an Order on April 18, 1986 suggesting the possibility of an agreement between James S. Dawson III and Bar Counsel that Respondent seek resignation with prejudice from the Maryland Bar along with payment of costs in these proceedings in exchange for Bar Counsel's willingness to dismiss all pending charges against the Respondent, and\\nWHEREAS, James S. Dawson III, a member of the Bar of the State of Maryland, filed on August 1, 1986, an application to resign from the Bar of Maryland in which he admits that he was convicted in Federal Court of illegal possession of controlled dangerous substances and he further states that his resignation will avoid the need for any further proceedings in this matter, and\\nWHEREAS, Bar Counsel thereafter filed a notice with the Court stating that he had no objection to the Court's dismissal of the charges pending against Dawson,\\nNOW, THEREFORE, it is this 4th day of September, 1986\\nORDERED, by the Court of Appeals of Maryland, that the application to resign with prejudice from the further practice of law in this State filed by James S. Dawson III be, and it is hereby, accepted, and it is further\\nORDERED that all charges pending against the Respondent in the above captioned case be, and they are hereby, dismissed, and it is further\\nORDERED that the Clerk of this Court shall strike the name of James S. Dawson III from the register of attorneys, and pursuant to Maryland Rule BV13, shall certify that fact to the Trustees of the Clients' Security Trust Fund and the Clerks of all judicial tribunals in this State.\"}"
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+"{\"id\": \"2071743\", \"name\": \"FERRERO CONSTRUCTION COMPANY v. DENNIS ROURKE CORPORATION\", \"name_abbreviation\": \"Ferrero Construction Co. v. Dennis Rourke Corp.\", \"decision_date\": \"1988-02-10\", \"docket_number\": \"No. 139\", \"first_page\": \"560\", \"last_page\": \"586\", \"citations\": \"311 Md. 560\", \"volume\": \"311\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:34:20.667745+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FERRERO CONSTRUCTION COMPANY v. DENNIS ROURKE CORPORATION\", \"head_matter\": \"536 A.2d 1137\\nFERRERO CONSTRUCTION COMPANY v. DENNIS ROURKE CORPORATION\\nNo. 139,\\nSept. Term, 1985.\\nCourt of Appeals of Maryland.\\nFeb. 10, 1988.\\nMotion for Reconsideration Denied March 24,1988.\\nRobert C. Park, Jr. (Michael J. Gugerty and Linowes & Blocher, on the brief), Silver Spring, for appellant.\\nMarilyn J. Brasier (Thomas J. Walker, Jr., on the brief), Rockville, for appellee.\\nBefore MURPHY, C.J., and SMITH , ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.\\nSmith and Couch, JJ., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion.\", \"word_count\": \"8446\", \"char_count\": \"50529\", \"text\": \"ELDRIDGE, Judge.\\nThe principal question in this case is whether the Rule Against Perpetuities applies to a right of first refusal to purchase an interest in property.\\nThe pertinent facts are as follows. On April 27, 1981, the plaintiff Dennis Rourke Corp. and the defendant Ferrero Construction Co. entered into a contract for the purchase of two lots on Mercy Court in Montgomery County, Maryland. This contract contained the following clause:\\n\\\"In consideration of this contract, the Seller [Ferrero] agrees to extend to the Purchaser [Rourke] a first right of refusal on the future sale of any of the seven lots remaining on Mercy Court.\\\"\\nRourke never recorded this contract. Settlement under the contract apparently occurred in May 1981.\\nOn March 12, 1984, Ferrero notified Rourke by mail of a third party offer to purchase Lot 27, one of the remaining lots on Mercy Court. The letter contained the terms of the third party's offer and afforded Rourke the opportunity \\\"to submit a contract\\\" by March 21, 1984, for it \\\"to be considered.\\\" Rourke immediately stated that it was exercis ing its right of first refusal and requested that Ferrero provide a copy of the third party's offer so that Rourke could prepare a contract with identical terms and conditions. On March 21, 1984, Rourke received a copy of the third party's offer. The next day, Rourke submitted a contract that in its essential terms conformed to the third party's offer. Subsequently, Rourke stated that it was prepared to settle on April 24, 1984. Ferrero responded that it had decided to reject both offers and that it would not appear at settlement. Ferrero in fact did not appear at the settlement and, on April 26, 1984, returned both offers, unsigned.\\nRourke brought this action for specific performance in the Circuit Court for Montgomery County. In the first count of its amended complaint, Rourke claimed that it was entitled to a conveyance of Lot 27 by virtue of its exercise of the right of first refusal. In the second count, Rourke alleged that, independent of the exercise of the right of first refusal, Ferrero and Rourke had agreed upon a contract for the purchase and sale of Lot 27.\\nAt trial, after the conclusion of Rourke's case, the trial court granted Ferrero's motion for judgment on count one, ruling that Rourke's right of first refusal violated the Rule Against Perpetuities and was, consequently, void. As to the second count, after the presentation of all of the evidence, the trial court held that Ferrero's letter of March 12, 1984, constituted an offer and that Rourke accepted the offer by stating its intent to exercise the right of first refusal. Nevertheless, the court ruled that Ferrero's offer was premised on the parties' mistaken belief that the right of first refusal was valid. Consequently, the court concluded that the parties had not formed a contract, as both had proceeded under a mutual mistake of law.\\nThe Court of Special Appeals reversed on the ground that the Rule Against Perpetuties was inapplicable and that the right of first refusal was valid. Dennis Rourke Corp. v. Ferrero Constr. Co., 64 Md.App. 694, 498 A.2d 689 (1985). Although in Iglehart v. Jenifer, 35 Md.App. 450, 452-453, 371 A.2d 453 (1977), the Court of Special Appeals had assumed that the Rule Against Perpetuities applied to rights of first refusal, the court in this case expressly held the Rule inapplicable to such rights. The intermediate appellate court also indicated its view that the parties had entered into an independent contract for the purchase and sale of Lot 27. Thereafter, we granted Ferrero's petition for a writ of certiorari.\\nI.\\nSubject to a few statutory exceptions, the common law Rule Against Perpetuities remains in effect in Maryland. Maryland Code (1974), \\u00a7 11-102 to -103 of the Estates and Trusts Article. See also Code (1974), \\u00a7 4-409 of the Estates and Trusts Article. In Fitzpatrick v. Mer.-Safe, Etc. Co., 220 Md. 534, 541, 155 A.2d 702, 705 (1959), this Court adopted Professor Gray's formulation of the Rule Against Perpetuities: \\\" '[n]o interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.' \\\" Gray, The Rule Against Perpetuities, \\u00a7 201 (4th ed. 1942). The Fitzpatrick Court described the Rule Against Perpetuities as follows (220 Md. at 541, 155 A.2d 702):\\n\\\"It is a rule of law, not one of construction, and it applies to legal and equitable estates of both realty and personalty. It is not a rule that invalidates interests which last too long, but interests which vest too remotely; in other words, the Rule is not concerned with the duration of estates, but the time of their vesting.\\\"\\nA.\\nThe vast majority of courts and commentators have held that rights of first refusal, which are more commonly known as \\\"preemptive rights,\\\" are interests in property and not merely contract rights. 5A Powell on Real Property, \\u00b6 771[2] (1987). See also Westpark Inc. v. Seaton Land Co., 225 Md. 433, 449-450, 171 A.2d 736, 743 (1961). This is so because, if the property owner attempts to sell to someone other than the owner of the right of first refusal (\\\"the preemptioner\\\"), the latter may have a court of equity enter a decree of specific performance ordering that the property be conveyed to him. 5A Powell on Real Property, supra, \\u00b6 711[1], n. 9. Thus, the preemptioner acquires an equitable interest, which will vest only when the property owner decides to sell. See Note, Real Property\\u2014Pre-emptive Right or Right of Refusal\\u2014Violative of The Rule Against Perpetuities?, 40 Mo.L.Rev. 389, 391-392 (1975) (a right of first refusal \\\"is in the nature of a springing executory interest\\\").\\nAs rights of first refusal are interests in property, the great majority of American jurisdictions have applied the Rule Against Perpetuities to such rights. See, e.g., Estate of Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161 (1985); Taormina Theosophical Community, Inc. v. Silver, 140 Cal.App.3d 964, 977, 190 Cal.Rptr. 38, 46 (1983); Atchison v./City of Englewood, 170 Colo. 295, 307-308, 463 P.2d 297, 303 (1970); Neustadt v. Pearce, 145 Conn. 403, 143 A.2d 437 (1958); Watergate Corp. v. Reagan, 321 So.2d 133 (Fla.App. 1975); Martin v. Prairie Rod & Gun Club, 39 Ill.App.3d 33, 348 N.E.2d 306 (1976); Weitzmann v. Weitzmann, 87 Ind.App. 236, 242, 161 N.E. 385, 387 (1928); Henderson v. Millis, 373 N.W.2d 497, 505 (Iowa 1985); Barnhart v. McKinney, 235 Kan. 511, 682 P.2d 112 (1984); Three Rivers Rock Co. v. Reed Crushed Stone Co., 530 S.W.2d 202, 208 (Ky.1975); Old Mission Peninsula School Dist. v. French, 362 Mich. 546, 549, 107 N.W.2d 758, 759 (1961); Beets v. Tyler, 365 Mo. 895, 903, 290 S.W.2d 76, 82 (1956); Davies v. McDowell, 549 S.W.2d 619 (Mo.App.1977); North Bay Council Inc. v. Grinnell, 123 N.H. 321, 461 A.2d 114 (1983); Ross v. Ponemon, 109 NJ.Super. 363, 370, 263 A.2d 195, 199 (1970); Peele v. Wilson Co. Bd. of Educ., 56 N.C.App. 555, 560-561, 289 S.E.2d 890, 893-894, petition denied, 306 N.C. 386, 294 S.E.2d 210 (1982); Melcher v. Camp, 435 P.2d 107 (Okla.1967); Hale v. Scanlon, 88 Pa.D. & C. 506, 508 (1953); Clark v. Shelton, 584 P.2d 875, 876-877 (Utah 1978); Skeen v. Clinchfield Coal Corp., 137 Va. 397, 402, 119 S.E. 89, 90 (1923); Smith v. VanVoorhis, 296 S.E.2d 851, 853-854 (W.Va.1982). Cf. Hall v. Crocker, 192 Tenn. 506, 510, 241 S.W.2d 548, 549-560 (1951) (option on condition precedent to repurchase if grantee either died or wished to sell held subject to Rule Against Perpetuities); Smith v. Mitchell, 301 N.C. 58, 66, 269 S.E.2d 608, 613 (1980) (whether a right of first refusal constitutes an unreasonable restraint on alienation depends, inter alia, on whether the duration of the right is greater than the period of the Rule Against Perpetuities).\\nIn addition, the Restatement has adopted the majority position. IV Restatement of Property \\u00a7 413 comment e (1944). See also Iglehart v. Jenifer, supra, 35 Md.App. at 452-453, 371 A.2d 453; Note, Real Property\\u2014Preemptive Right or Right of First Refusal\\u2014Violative of the Rule Against Perpetuities?, supra, 40 Mo.L.Rev. at 391-392; 5A Powell on Real Property, supra, \\u00b6 771[2] (\\\"Options to purchase or to repurchase land, unconnected with a lease, commonly denominated options in gross, have generally been held bad under the common law rule against perpetuities, when not restricted in duration so as to comply with the permissible period under that rule\\\") (collecting right of first refusal cases); 4A Thompson on Real Property, \\u00a7 2020, at 655 (1979 Repl. Vol.); L. Simes & A. Smith, The Law of Future Interests, \\u00a7 1154, at 61 (2d ed. 1956) (rights of first refusal are \\\"normally subject to the rule against perpetuities\\\").\\nIn light of this widespread acceptance of the majority view, we should hesitate before attempting to fashion an exception to the Rule Against Perpetuities for rights of first refusal. In this area of property law, vested rights and settled expectations are at stake. A departure from settled law might introduce doubt as to the value of vested rights. Moreover, the contours of an exception for rights of first refusal might prove difficult to define. Consequently, the policies favoring certainty and stability strongly support our following the majority of courts and applying the Rule Against Perpetuities to rights of first refusal.\\nA right of first refusal is a type of option. IY Restatement of Property, supra, \\u00a7 413 comment b (rights of first refusal are \\\"analogous to options on a condition precedent\\\"). See Ensor v. Wehland, 243 Md. 485, 487-488, 221 A.2d 699 (1966); Westpark, Inc. v. Seaton and Co., supra, 225 Md. at 445, 171 A.2d 736; Iglehart v. Jenifer, supra, 35 Md.App. at 451 n. 1, 371 A.2d 453. Again, the majority rule, in England as well as in this country, is that the Rule Against Perpetuities generally applies to options. Commonwealth Realty v. Bowers, supra, 261 Md. 285, 302-303, 274 A.2d 353, and authorities cited there; IV Restatement of Property, supra, \\u00a7 393. In the area of options, courts in the 300 years since the High Court of Chancery decided the Duke of Norfolk's Case, 3 Ch. Cas. 1, 22 Eng.Rep. 931 (1681), have developed three exceptions to the Rule Against Perpetuities. The Rule does not apply to a lessee's option to renew a lease, Bridges v. Hitchcock, 5 Br.P.C. 6, 2 Eng.Rep. 498 (1715); IV Restatement of Property, supra, \\u00a7 395(b). It does not apply to a lessee's option to purchase all or part of the leased premises, IV Restatement of Property, supra, \\u00a7 395(a); Hollander v. Central Metal & Supply Co., 109 Md. 131, 71 A. 442 (1908). And it is inapplicable to a usufructuary's option to extend the scope of an easement or profit, IV Restatement of Property, supra, \\u00a7 393 comment j, 399. See generally, 5A Powell on Real Property, supra, \\u00b6 771[2]. All options may violate the Rule Against Perpetuities. Nevertheless, courts have justified these three narrow exceptions because these three types of optipns yield social benefits that offset the consequences of that violation. Ibid.\\nIn urging us to exempt rights of first refusal from the Rule Against Perpetuities, Rourke would have us undertake such a balancing process. Again, however, it is significant that a majority of courts have struck the balance against creating the exception Rourke seeks.\\nB.\\nWe recognize that a minority of courts have held the Rule Against Perpetuities inapplicable to certain rights of first refusal. Cambridge Co. v. East Slope Investment Corp., 700 P.2d 537, 542 (Colo.1985); Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903, 906-907 (1983); Metropolitan Transp. Auth. v. Bruken Realty Corp., 67 N.Y.2d 156, 492 N.E.2d 379, 384, 501 N.Y.S.2d 306, 311 (1986); Forderhause v. Cherokee Water Co., 623 S.W.2d 435, 438-439 (Tex.Civ. App.1981), rev'd on other grounds, 641 S.W.2d 522 (Tex. 1982); Robroy Land Co. v. Prather, 95 Wash.2d 66, 622 P.2d 367, 369-371 (1980); Weber v. Texas Co., 83 F.2d 807, 808 (5th Cir.), cert. denied, 299 U.S. 561, 57 S.Ct. 23, 81 L.Ed. 413 (1936). See also Hartnett v. Jones, 629 P.2d 1357, 1362-1363 (Wyo.1981). This minority view appears to stem from a law review article written in 1935 by Professor Merrill I. Schnebly. Schnebly, Restraints Upon the Alienation of Legal Interests: III, 44 Yale L.J. 1380, 1390-1395 (1935). Professor Schnebly was the editor of the section of the American Law of Property which relates to this issue and which adopts the same view. VI American Law of Property, \\u00a7 26.67 (1952). The Court of Special Appeals in the present case, and many of the other cases reaching the same conclusion, rely on Professor Schnebly's writings. See, e.g., Dennis Rourke Corp. v. Ferrero Constr. Co., 64 Md.App. 694, 703, 498 A.2d 689 (1985); Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903, 906 (1983); Robroy Land Co. v. Prather, 95 Wash.2d 66, 622 P.2d 367, 369 (1980). In fact, the relatively few cases espousing the minority view all arose after the publication of Professor Schnebly's article in 1935. We reiterate that, in this area of the law, where certainty and stability are important values, it is undesirable to adopt such a recent and minority position.\\nMoreover, most of the cases adopting the minority position involve unique interests in land, rather than the traditional fee estate involved in this case. For example, Weber v. Texas Co., 83 F.2d 807 (5th Cir.), cert. denied, 299 U.S. 561, 57 S.Ct. 23, 81 L.Ed. 413 (1936), Producers Oil Co. v. Gore, 610 P.2d 772 (Okla.1980), and Forderhause v. Cherokee Water Co., 623 S.W.2d 435 (Tex.Civ.App.1981), rev'd on other grounds, 641 S.W.2d 522 (Tex.1982), all involve rights of first refusal in connection with oil, gas, and mineral leases. As the Supreme Court of Oklahoma stated in the Producers Oil case (610 P.2d at 774):\\n\\\"Mineral leases and their accompanying operating agreements have built in duration. Oil and gas production cannot last indefinitely and rights are always terminable _ [T]he provision for preemptive rights . can last only as long as the agreement and the lease itself continu[e].\\\"\\nIn Cambridge Co. v. East Slope Investment Corp., 700 P.2d 537, 542 (Colo.1985), the court held that the Rule Against Perpetuities did not apply to rights of first refusal contained in a condominium declaration. Condominium ownership was a form of property interest unknown to the earlier common law. Thus, an exception for rights of first refusal to purchase this specialized type of property interest has little bearing on whether rights of first refusal in general should be exempt from the Rule Against Perpetuities.\\nIn Metropolitan Transp. Auth. v. Bruken Realty Corp., 67 N.Y.2d 156, 492 N.E.2d 379, 384, 501 N.Y.S.2d 306, 311 (1986), the Court of Appeals of New York held that, in commercial and governmental transactions, it would not assess the validity of a right of first refusal under the Rule Against Perpetuities. Again, however, that case involved a unique transaction. The right at issue arose out of the State of New York's buyout of the bankrupt Long Island Railroad, a transaction that the trial court described as \\\"thoroughly sui generis.\\\" Metropolitan Transp. Auth. v. Broken Realty Corp., 125 Misc.2d 497, 479 N.Y.S.2d 646, 655 (1984). Thus, it would again seem that an exception for a right of first refusal in a transaction such as this should have little bearing on whether rights of first refusal in general should be exempt from the Rule Against Perpetuities.\\nThe Court of Special Appeals in the present case and other courts adopting the minority view reach their conclusion by assuming that the sole policy underlying the Rule Against Perpetuities is the elimination of restraints on alienation. See, e.g., Dennis Rourke Corp. v. Ferrero Constr. Co., supra, 64 Md.App. at 704, 498 A.2d 689; Forderhause v. Cherokee Water Co., supra, 623 S.W.2d at 438-439; Robroy Land, Co. v. Prather, supra, 95 Wash.2d 66, 622 P.2d at 370; Hartnett v. Jones, 629 P.2d 1357, 1361 (Wyo.1981); Weber v. Texas Co., supra, 83 F.2d at 808. Thus, in effect, the minority view postulates that an interest should not be subject to the Rule unless the interest constitutes a restraint on alienation. The minority view then distinguishes rights of first refusal from ordinary options. As stated in VI American Law of Property, supra, \\u00a7 26.64, at 507:\\n\\\"An option creates in the optionee a power to compel the owner of property to sell it at a stipulated price whether or not he be willing to part with ownership. A pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption, at the stipulated price. Upon receiving such an offer, the pre-emptioner may elect whether he will buy. If he decides not to buy, then the owner of the property may sell to anyone.\\\"\\nBased on this distinction, the minority view contends that, unlike ordinary options, at least some rights of first refusal do not restrain alienation; consequently, the minority view concludes that such rights of first refusal should not be subject to the Rule Against Perpetuities. VI American Law of Property, supra, \\u00a7 26.67, at 511-512; Dennis Rourke Corp. v. Ferrero Constr. Co., supra, 64 Md.App. at 704, 498 A.2d 689; Cambridge Co. v. East Slope Investment Corp., supra, 700 P.2d at 542; Shiver v. Benton, supra, 251 Ga. 284, 304 S.E.2d at 906; Forderhause v. Cherokee Water Co., supra, 623 S.W.2d at 439; Robroy Land Co. v. Prather, supra, 95 Wash.2d 66, 622 P.2d at 369-371; Weber v. Texas Co., supra, 83 F.2d at 808. See also Metropolitan Transp. Auth. v. Bruken Realty Corp., supra, 67 N.Y.2d 156, 492 N.E.2d 379, 385, 501 N.Y.S.2d 306, 312.\\nEven assuming the validity of the distinction between rights of first refusal and other options, the minority view errs in assuming that an interest should not be subject to the Rule unless the interest constitutes a restraint on alienation. In making this assumption, courts adopting the minority view confuse the Rule Against Perpetuities with the rule against unreasonable restraints on alienation. Admittedly, both rules belong to \\\"a family of related rules that regulate the devolution of wealth from generation to generation.\\\" R. Lynn, The Modern Rule Against Perpetuities 9 (1966). These two rules are nonetheless distinct. The Rule Against Perpetuities prevents property interests from vesting remotely. J. Cray, The Rule Against Perpetuities 3-4 (4th ed. 1942); L. Simes, The Law of Future Interests, \\u00a7 120, at 253 (2d ed. 1966). See Safe Deposit & Trust Co. v. Sheehan, 169 Md. 93, 106, 179 A. 536, 542 (1935). The rule against restraints on alienation, on the other hand, prevents grantors from unreasonably depriving grantees of the power to alienate their estates. See Restatement (Second) Property (Donative Transfers) Intro. Note, Pt. II, at 143; Three Rivers Rock Co. v. Reed Crushed Stone Co., 530 S.W.2d 202, 205 (Ky.1975).\\nThe policies underlying these two rules are likewise not identical. Obviously, the rule against restraints on alienation serves to facilitate the alienability of property. Similarly, one of the purposes of the Rule Against Perpetuities is to facilitate the alienability of property. See Commonwealth Realty v. Bowers, supra, 261 Md. at 297, 274 A.2d 353; Hollander v. Central Metal & Supply Co., supra, 109 Md. at 159, 71 A. 442. Contrary to the minority view, however, the Rule Against Perpetuities is not simply a rule against restraints on alienation. L. Simes, supra, \\u00a7 120, at 253. Instead, the Rule Against Perpetuities is concerned with restrictions that render title uncertain. See 2 H. Tiffany, The Law of Real Property, \\u00a7 392 (3d ed. 1939). Without the Rule Against Perpetuities, it would be possible at some distant point for a remotely vesting future interest to divest the current owner's estate. Because of this threat of divestment, the owner might be deterred from making the most effective use of the property, even if he never has any desire to alienate his estate. Thus, by voiding certain remotely vesting future interests, the Rule Against Perpetuities eliminates this deterrent both for owners who wish to alienate their estates and for owners who have no intention of ever doing so. See 2 H. Tiffany, The Law of Real Property, supra, \\u00a7 392. Consequently, from the standpoint of the Rule Against Perpetuities, it is irrelevant whether a particular future interest imposes a light burden, a heavy burden, or no burden at all upon the alienability of property. See Smith v. VanVoorhis, 296 S.E.2d 851, 854 n. 3 (W.Va.1982). See also IV Restatement of Property, supra, \\u00a7 413.\\nC.\\nEven if the minority view were correct that an interest should not be subject to the Rule Against Perpetuities unless that interest constitutes a restraint on alienation, we would disagree that rights of first refusal should not be subject to the Rule. In our opinion, rights of first refusal do restrain the alienability of property. In this respect, however, it is necessary first to distinguish among the various types of rights of first refusal.\\nSome rights of first refusal permit the right's owner to purchase property at a fixed price if the property owner, his heirs, or assigns should ever desire to sell. Plainly a right of first refusal at a fixed price inhibits alienability. Often, with the passage of time, the fixed price will bear no relationship to the property's actual market value. See, e.g., Peele v. Wilson Co. Bd. of Educ., 56 N.C.App. 555, 289 S.E.2d 890, petition denied, 306 N.C. 386, 294 S.E.2d 210 (1982) (property owner had received bid at $4,300, while right of first refusal would have permitted heirs to pay only $50). Because the owner must often offer the property to the preemptioner at an artificially low price, the owner is deterred from selling the property or from increasing its value by making improvements. Consequently, even the minority view acknowledges that the Rule Against Perpetu ities should apply to rights of first refusal at a fixed price. VI American Law of Property, supra, \\u00a7 26.67, at 510.\\nA second type of right of first refusal permits the preemptioner to purchase the property at \\\"market value\\\" if the owner, his heirs or assigns should ever desire to sell. Some authorities would find the Rule Against Perpetuities inapplicable to such a right. Metropolitan Transp. Auth. v. Bruken Realty Corp., supra, 67 N.Y.2d 156, 492 N.E.2d 379, 501 N.Y.S.2d 306; VI American Law of Property, supra, \\u00a7 26.67, at 511. Nevertheless, a right of first refusal to purchase at market value also effects a substantial restraint on alienability. A potential purchaser's offer might, in the preemptioner's opinion, exceed market value. The preemptioner could then contend that he need pay only some lesser amount. Fearing that a determination of the parties' rights would have to await the uncertain outcome of litigation, a prospective purchaser might be deterred from ever making an initial offer. 40 A.L.R.3d 920, 927 (1970).\\nThe third type of right of first refusal permits the preemptioner to purchase the property at a price equal to any bona fide offer that the owner, his heirs or assigns desire to accept. In this situation, however, many prospective purchasers, recognizing that a matching offer from the preemptioner will defeat their bids, simply will not bid on the property. This in turn will depress the property's value and discourage the owner from attempting to sell. Moreover, even a right of first refusal tied to a bona fide offer may constitute an unreasonable restraint on alienation if the right is of unlimited duration. See Restatement of Property, supra, \\u00a7 406 comment i. Similarly, if, as in this case, the right of first refusal is unrecorded, the task of ascertaining and locating the holder of the preemptive right at some remote point in the future might also become so difficult that the right of first refusal could constitute an unreasonable restraint on alienation. Atchison v. City of Englewood, 170 Colo. 295, 307-308, 463 P.2d 297, 303 (1970).\\nThus, contrary to the minority view, we conclude that rights of first refusal restrain alienation.\\nD.\\nFinally, as indicated earlier, the General Assembly has recognized by statute a limited number of exceptions to the common law Rule Against Perpetuities. Code (1974), \\u00a7 11-102 to -103 of the Estates and Trusts Article. See also Code (1974), \\u00a7 4-409 of the Estates and Trusts Article. In this case, however, the Court of Special Appeals undertook to create an additional exception. When the legislature has expressly enumerated certain exceptions to a principle, courts normally should be reluctant thereafter to create additional exceptions. Cf Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 156, 416 A.2d 734, 737 (1980), and cases there cited.\\nFor all of the foregoing reasons, we hold that the Court of Special Appeals erred in adopting the minority view in this case. We choose to follow the majority of courts that apply the Rule Against Perpetuities to rights of first refusal.\\nE.\\nIt remains to assess the validity of Rourke's right of first refusal under the Rule Against Perpetuities.\\nWe first observe that Rourke's right of first refusal was not limited to a term of years but was of unlimited duration. Compare Westpark, Inc. v. Seaton Land Co., supra, 225 Md. 433, 171 A.2d 736. Moreover, in this case, the right was conveyed between two corporations, which theoretically have a perpetual existence. Thus, under the conveyance as drafted, the right of first refusal might vest well beyond the period of some life in being plus twenty-one years that is prescribed in the Rule, Consequently, the circuit court correctly held that the right of first refusal in this case violated the Rule Against Perpetuities and, therefore, was unenforceable.\\nII.\\nAs mentioned early in this opinion, Rourke also sought specific performance on the theory that the March 1984 correspondence between the parties, in connection with the purported exercise of the invalid right of first refusal, itself created a contract for the purchase of Lot 27. The March 12, 1984, letter from Perrero to Rourke was as follows:\\n\\\"We have in hand an acceptable contract for the sale of Lot 27, Block 2, McAuley Park. The essential data is as follows:\\nDeposit: \\u00a75,000.00\\nSettlement: 30 days\\nContract amount: \\u00a770,000.00\\nTerms: All cash\\nPlease let us know whether you intend to submit a contract on this parcel. If you do submit a contract, it must be in our hands by March 21, 1984 in order to be considered.\\\"\\nIn response to this letter, Rourke stated that it was exercising its right of first refusal, and thereafter Rourke submitted a contract to Ferrero. Ferrero then stated that it had decided to reject both offers.\\nThe actions of the parties in March 1984, at most, constituted simply a first-step towards compliance with the right of first refusal contained in the 1981 contract. Nevertheless, both the trial court and the Court of Special Appeals believed that this March 1984 correspondence independently created a contract for the purchase of Lot 27. Both courts below were apparently of the view that, whenever the parties to a prior contractual right of first refusal act to implement that right, their actions should be deemed to constitute an independent offer and acceptance even if the right of first refusal was invalid under the Rule Against Perpetuities. The trial court, however, did not grant relief on the basis of an independent contract because of its holding that there was a mutual mistake. The Court of Special Appeals, in light of its holding that the right of first refusal was valid, did not have to reach the matter of an independent contract.\\nIn our view, the mere initial implementation by both parties, as in this case, of a right of first refusal which is invalid under the Rule Against Perpetuities, does not itself create a contract to sell the property. To hold otherwise would negate the applicability of the Rule Against Perpetuities and contravene the policy underlying the Rule.\\nOf course, if the parties go beyond the initial steps of merely complying with the prior right of first refusal, and engage in conduct creating a new contract for the sale of property, that contract will be enforced. The parties' actions in this case, however, were not of this character. Ferrero's letter of March 12, 1984, was clearly not an independent offer to sell Lot 27. The letter was, at most, the taking of the initial step under the 1981 right of first refusal. Moreover, the language of the March 12, 1984, letter represents only an effort to solicit an offer from Rourke. The letter requests information as to whether Rourke \\\"intend[ed] to submit a contract.\\\" In addition, the March 12th letter states that Rourke's contract had to be in Ferrero's hands by March 21, 1984, \\\"in order to be considered.\\\" The letter thus suggests that Ferrero intended only to learn whether Rourke would \\\"submit\\\" an offer/\\\"contract\\\" which Ferrero might \\\"consider\\\" accepting. An invitation to submit an offer is not itself an offer; the submission of an offer, pursuant to the invitation, is not an acceptanc\\u00e9. See Rofra Inc. v. Board of Education, 278 Md. 102, 358 A.2d 562 (1976), aff'g, 28 Md.App. 538, 346 A.2d 458 (1975); Restatement (Second) of Contracts \\u00a7 26 comment d; 1 Williston on Contracts, \\u00a7 27 (3d ed. 1957).\\nUnder the circumstances of this case, Rourke's subsequent actions could not constitute an acceptance. At best, Rourke's submission of a \\\"contract\\\" was the initial offer. Ferrero, however, never accepted that offer, as it returned the \\\"contract\\\" unsigned and stated that it did not intend to sell Lot 27.\\nIn light of our holding, we do not reach the trial court's \\\"mutual mistake of law\\\" theory.\\nJUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY. RESPONDENT TO PAY COSTS.\\n. On March 6, 1984, Ferrero had received a third party offer to purchase Lot 21 on Mercy Court. Ferrero notified Rourke of the offer to purchase Lot 21, but Rourke declined to exercise its right of first refusal as to that lot.\\n. In full, Ferrero's letter stated as follows:\\n\\\"We have in hand an acceptable contract for the sale of Lot 27, Block 2, McAuley Park. The essential data is as follows:\\nDeposit: $5,000.00\\nSettlement: 30 days\\nContract amount: $70,000.00\\nTerms: All cash\\nPlease let us know whether you intend to submit a contract on this parcel. If you do submit a contract, it must be in our hands by March 21, 1984 in order to be considered.\\\"\\n. In full, Rourke's response was as follows:\\n\\\"Pursuant to your notification of March 12, 1984, please be advised of my intent to exercise my 'first right of refusal' on Lot 27, Block 2 of McAuley Park Subdivision. As I have indicated from the beginning, it has always been my intention to build out the balance of Mercy Court.\\n\\\"If you would be kind enough to provide me with a copy of your contract on Lot 27,1 will prepare my contract with exactly the same terms and conditions as the offer you now have.\\\"\\n. From the outset of this case, both parties and both courts below have proceeded as though Rourke would be entitled to specific performance if the right of first refusal in the 1981 contract did not violate the Rule Against Perpetuities. Thus, the parties and the lower courts assumed that Ferrero had made an actual decision to sell Lot 27 so as to activate Rourke's right of first refusal. See Straley v. Obsorne, 262 Md. 514, 522, 523, 278 A.2d 64 (1971); VI American Law of Property \\u00a7 26.65, at 507 (1952). Moreover, the parties and the lower courts assumed that the right of first refusal required Rourke to submit a bid that equaled a third party's offer rather than market price. For purposes of this case, we shall proceed as though these assumptions are valid.\\n. In addition, in Producers Oil Co., supra, the owner of the mineral rights and the lessee owned reciprocal rights of first refusal to purchase each other's interest. Thus, the court concluded that these rights fell within the well-established exception to the Rule Against Perpetuities for options to purchase that are contained within a lease. 610 P.2d at 775-776. See Restatement of Property, supra, \\u00a7 395; Hollander v. Central Metal Supply Co., 109 Md. 131, 71 A. 442 (1908).\\n. The Court of Special Appeals concluded that Rourke's right of first refusal did not constitute an unreasonable restraint on alienation under IV Restatement of Property, supra, \\u00a7 406. Section 406, the general rule on unreasonable restraints on alienation, expressly states that its provisions are subject to IV Restatement of Property, supra, \\u00a7 413. Section 413 provides that a right of first refusal is not an unreasonable restraint on alienation \\\"unless it violates the rule against perpetuities.\\\" Thus, \\u00a7 413 and not \\u00a7 406 contains the final word as to the reasonableness of rights of first refusal. Nevertheless, the Court of Special Appeals did not assess Rourke's right of first refusal under \\u00a7 413.\\n. Corporations such as Rourke and Ferrero cannot be used as measuring lives for purposes of the Rule Against Perpetuities. Fitchie v. Brown, 211 U.S. 321, 334, 29 S.Ct. 106, 110, 53 L.Ed. 202 (1908); L. Simes & A. Smith, supra, \\u00a7 1223, at 108.\\n. It is not clear, however, that a mistake of law such as that which was found to have occurred in this case would be grounds for relief in Maryland. Prince de Bearn v. Winans, 111 Md. 434, 477, 74 A. 626, 634 (1909) (\\\"[M]oney paid, with a full knowledge of all the facts of the case, under a mistaken conception of the law cannot be recovered back in an action at law____ Nor will contracts resting upon a proper consideration fairly made with a full knowledge of the facts under a mistake or ignorance of the law, be set aside in equity in the absence of special grounds of equitable relief.''). See abo Sibert v. McAvoy, 15 Ill. 106, 109 (1853); Restatement of Restitution \\u00a7 7 (1937); 13 Williston on Contracts, \\u00a7 1549, at 135 (3d ed. 1970). Compare Atchbon v. City of Englewood, 193 Colo. 367, 372, 568 P.2d 13 (1977); Dover Pool & Racquet Club, Inc. v. Brooking, 366 Mass. 629, 632-634, 322 N.E.2d 168 (1975); Peterson v. First National Bank of Ceylon, 162 Minn. 369, 375, 203 N.W. 53 (1925); Rosenblum v. Manufacturers Trust Co., 270 N.Y. 79, 84-85, 200 N.E. 587 (1936); Restatement (Second) of Contracts \\u00a7 151 comment b (1981); E. Farnsworth, Contracts, \\u00a7 9.2, at 649 (1982).\"}"
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+"{\"id\": \"2073591\", \"name\": \"William HULL et al. v. COMPTROLLER OF the TREASURY, INCOME TAX DIVISION\", \"name_abbreviation\": \"Hull v. Comptroller of the Treasury\", \"decision_date\": \"1988-03-08\", \"docket_number\": \"No. 122\", \"first_page\": \"77\", \"last_page\": \"92\", \"citations\": \"312 Md. 77\", \"volume\": \"312\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:38:16.695702+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William HULL et al. v. COMPTROLLER OF the TREASURY, INCOME TAX DIVISION.\", \"head_matter\": \"537 A.2d 1188\\nWilliam HULL et al. v. COMPTROLLER OF the TREASURY, INCOME TAX DIVISION.\\nNo. 122,\\nSept. Term, 1987.\\nCourt of Appeals of Maryland.\\nMarch 8, 1988.\\nCharles C. Shelton (T. Scott Basik and Semmes, Bowen & Semmes, all on brief), Baltimore, for appellants.\\nJohn K. Barry, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Gerald Langbaum, Asst. Atty. Gen., all on brief), Annapolis, for appellee.\\nArgued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.\", \"word_count\": \"4501\", \"char_count\": \"26630\", \"text\": \"CHARLES E. ORTH, Jr., Judge\\n(retired), Specially Assigned.\\nThis case is about the assessment of income taxes by the Comptroller of the State of Maryland against two nonresident former Maryland bay pilots.\\nPilots are covered by Article 74 of the Maryland Code (1957, 1983 Repl.Vol.). Section 10 provides:\\nEvery foreign vessel and every American vessel engaged in foreign trade, including such vessels towing or being towed, when underway on navigable waters and within the boundaries of the State of Maryland, except when maneuvering during berthing or unberthing operations or shifting within the confine of a port with tug assistance and a docking master aboard the vessel, shall employ a pilot holding a valid warrant of appointment and license issued by the Board of Examiners of Maryland Pilots, or in case of refusal to take such a pilot shall themselves, their master, shipowner, charterers or ship's husband pay the said pilotage as if a pilot had been employed.[ ]\\nThe Board of Examiners of Maryland Pilots was created by the legislature. Sections 1-2. \\\"No person shall be authorized or permitted to be a pilot unless he shall have first received a license from the Board,\\\" \\u00a7 5, and after serving an apprenticeship, \\u00a7 3-4. The Board \\\"may make such rules and orders for the government and regulation of pilots licensed by them as they may think proper, not contrary to the provisions of [Art. 74]____\\\" Section 9. The Board is \\\"authorized and directed to establish, at just and reasonable rates, pilotage fees and charges____\\\" Section 14. See \\u00a7 13 for liability for pilot's compensation.\\nThe pilots licensed by the Board formed the Association of Maryland Pilots. Each pilot becomes a member of the Association upon obtaining his license. As a member he has a vote in the management and operations of the Association and makes a capital contribution. A \\\"full member pilot\\\" is\\na pilot who holds a warrant of appointment and license for any draught of water issued by the Board of Examiners of Maryland Pilots and is a member in good standing of the Association of Maryland Pilots.\\nSection 12(c). A \\\"lawfully licensed pilot\\\" is\\na pilot who holds any warrant of appointment and license issued by the Board of Examiners of Maryland Pilots and is a member in good standing of the Association of Maryland Pilots.\\nId. A pilot\\nshall be deemed to be inactive within the meaning of this section from and after the last day of the month (i) in which such pilot attains the age of seventy (70) years, or (ii) in which such pilot elects to be placed upon the inactive list after having been a full member pilot of the Association of Maryland Pilots for twenty-five (25) years or more.\\nId. A pilot\\nshall be considered permanently incapable of performing his duties within the meaning of this section from and after the date upon which (1) said pilot has been certified as such by two doctors selected by the Board of Examiners of Maryland Pilots and until such incapacity ceases to exist, or, (2) said pilot's federal or State license has been revoked for reasons of physical disability and until such license or licenses have been reissued.\\nId.\\nThe pilotage fees are payable to the Association as collection agent for its members. Each month a certain portion of the fees received by the Association are first turned over to the Board in\\nan amount equal to two hundred dollars ($200.00) or 33Vs% of the said monthly distributive portion to which a full member pilot engaged in full active service is entitled to receive for such calendar month, whichever is the greater, times the number of living pilots of the Association of Maryland Pilots who at the beginning of such month are either inactive or permanently incapable of performing their duties as hereinafter defined and who prior to becoming inactive or disabled were full member pilots of the Association of Maryland Pilots; the Board of Examiners of Maryland Pilots shall within ten (10) days after receipt of the sum or sums fixed in this subsection disburse the same equally to such of the living pilots of the Association of Maryland Pilots, who, at the beginning of the calendar month for which said payment is made, were either inactive or permanently incapable of performing their duties as pilots as hereinafter defined and who prior to becoming inactive or disabled were full member pilots of the Association of Maryland Pilots.\\nSection 12(a). The balance of said money available for distribution,\\nafter the payment of all expenses, shall be distributed monthly in accordance with the bylaws of the Association of Maryland Pilots among the regular working lawfully licensed pilots of the Association; provided, however that the board of supervisors of the Association of Maryland Pilots is empowered, authorized and directed to deduct from such money collected and before such monthly distribution among the regular working lawfully licensed pilots, a certain percentage of said money, said percentage to be fixed by the Board of Examiners of Maryland Pilots to be set aside in a separate or reserve fund for replacement and repairs of major equipment. The Board of Examiners of Maryland Pilots shall hold said replacement and repair funds in trust for the benefit of the Association of Maryland Pilots. In making investments or reinvestments of the funds the Board of Examiners of Maryland Pilots shall not be limited or restricted to property of the character designated as strictly suitable for the investment of trust funds by any law of the State of Maryland, but is hereby expressly authorized and empowered to invest or hold such property as may be, in its opinion, be desirable, considering the nature and purposes of the trust; or may at its election, place the management and control of the fund, or a portion thereof, in a bank or trust company subject to State or federal regulation. The assets held in trust under the authority of this section shall not be subject to attachment or execution.\\nSection 12(b). The amount paid to each pilot who, before becoming inactive or disabled were full members of the Association, is identical, and does not depend upon length of service in the Association. He is guaranteed a minimum of $200 a month regardless of the Association's profits or losses.\\nUpon becoming inactive or upon being declared permanently disabled, a pilot loses his membership in the Associa tion and is paid his capital investment. He no longer receives the monthly distribution paid by the Association to regularly working full members pursuant to \\u00a7 12(b). He has no voice in the management of the Association, loses his license to pilot and has no relationship with the Association. He is then neither a \\\"full member pilot,\\\" nor a \\\"lawfully licensed pilot,\\\" as statutorily defined. In short, he is no longer a pilot or a member of the Association.\\nWilliam Hull and Thaddeus Smurlo were full member pilots, each holding a warrant of appointment and license issued by the Board for any draught of water. Each was a member in good standing of the Association. Hull elected to be placed on the inactive list in 1970 after 40 years of service. In 1976, after 20 years of service, Smurlo was considered to be permanently incapable of performing his duties. Each of them, Hull upon becoming inactive, and Smurlo upon being declared disabled, lost his license to pilot and his membership in the Association and was no longer the recipient of the monthly distribution made to the \\\"regular working lawfully licensed pilots of the Association\\\" pursuant to \\u00a7 12(b). The capital contribution of each of them was returned. Neither of them then had a vote or any voice in the management of the Association's affairs and performed no services for or on behalf of the Association. All their connections with the Association were severed. They had nothing at all to do with it.\\nEffective upon Hull's becoming inactive and Smurlo's disablement, each of them began to receive the monthly distribution from the Board pursuant to \\u00a7 12(a). The Association is treated as a partnership for tax purposes. The monthly distribution paid to the active members of the Association pursuant to \\u00a7 12(b) is reported by the Association on tax form K-l. The monthly distribution made by the Board to inactive and disabled former members of the Association is reported by the Board on tax form 1099. Inasmuch as the inactive and disabled former pilots are not considered by the Association or the Board to be members of or partners in the Association, that portion of the pilot- age fees collected by the Association which is turned over to the Board for distribution is not treated or reported as partnership income but as an expense of the Association.\\nEarly in 1984, the Comptroller of the Treasury of Maryland issued a Notice of Assessment for Maryland income taxes to Hull for tax years 1980-1982 and to Smurlo for tax years 1980-1983. During the years covered by the assessments Hull and Smurlo resided in Florida and were not domiciled in Maryland. They owned no property in Maryland and performed no services in Maryland. The assessment was based on the monies received from the Board pursuant to \\u00a7 12(a). Hull and Smurlo appealed to the Maryland Tax Court. It held in a combined order that the nonresident taxpayers were not subject to tax in Maryland and abated the assessments. The Comptroller appealed to the Circuit Court for Baltimore City. It reversed the order of the Tax Court and reinstated the assessments. Hull and Smurlo appealed to the Court of Special Appeals. We ordered the issuance of a writ of certiorari on our own motion before decision by that court.\\nMaryland Code (1957, 1980 Repl.Vol.) Art. 81, \\u00a7 287, provides, in relevant part:\\nA nonresident individual shall be taxable in this State on that portion of his federal adjusted gross income as is derived from . income from business, trade, profession or occupation carried on in this State____[ ]\\nThe Maryland Tax Court thought that \\u00a7 287 of Art. 81 \\\"only seeks to tax income derived from activities conducted in Maryland in which a nonresident plays some direct role.\\\" The Tax Court declared that \\\"[t]he parties themselves appear to agree to this interpretation,\\\" and following that construction, the Tax Court found that\\nthe income [Hull and Smurlo] received during the subject years would not be taxable under Section 287 because [they] were no longer members of the Association of Maryland Pilots, did not provide it with any services, and did not assist in its management. [They] also did not have any capital invested in the partnership.\\nThe Tax Court noted, \\\"Nonetheless, the Comptroller contends that [Hull's and Smurlo's] income is taxable under Section 315 [of Art. 81]____\\\" That section provides, inter alia:\\nIndividuals carrying on business in partnership shall be liable for income tax only in their individual capacity, and no income tax shall be assessable hereunder upon the income of any partnership. All such income shall be assessable to the individual partners; it shall be reported by such partners as individuals upon their respective individual income returns, and it shall be taxed to them as individuals along with their other income____\\nThe Comptroller argued that \\\"[s]ince the active members of the Association of Maryland Pilots obviously do carry on business in Maryland, . [Hull and Smurlo] are liable for tax under Sections 315 and 287.\\\" The Tax Court disagreed. It thought that Maryland Code (1975, 1985 Repl.Vol.) \\u00a7 9-101(f) of the Corporations and Associations Article was dispositive. It defines a partnership to mean \\\"an association of two or more persons to carry on as co-owners a business for profit.\\\" The Tax Court concluded:\\nSince [Hull and Smurlo] have no ownership interest in the Maryland Pilots Association, the income they receive is not partnership income for purposes of Sections 287 and 315.\\nThe Circuit Court for Baltimore City reversed the Tax Court. The court recognized that Hull and Smurlo\\nare retired Maryland Bay Pilots who do not reside in Maryland and who are not domiciled in Maryland. They receive income from the Maryland Bay Pilots Association ., a partnership for federal tax purposes, pursuant to Md.Code, Art. 74, \\u00a7 [12]. [They] do not have capital accounts with the Association, do not actively participate in the Association and are not considered members of the Association.\\nBut the court pointed out Art. 81, \\u00a7 287 provided that a nonresident shall be taxable on \\\"income from business, trade, profession or occupation carried on in this State____\\\" The court said, \\\"The test to determine whether the income arises within the State is whether the taxing power exerted by the State bears fiscal relation to protection, opportunities and benefits given by the State, Wisconsin v. J.C. Penney Co., 311 U.S. 435 [, 61 S.Ct. 246, 85 L.Ed. 267] (1940).\\\" The court noted: \\\"It is clear that [the income of Hull and Smurlo] that is sought to be taxed is completely dependent on the protection, opportunities and benefits provided by Maryland.\\\"\\nThe Association conducts its business in Maryland and it is from this business that the income has its origin. The income is then distributed to [Hull and Smurlo] pursuant to a State statutory scheme.\\nThe court thought that the nexus required by Penney was satisfied, and thus, the income was taxable under Art. 81, \\u00a7 287.\\nWe do not believe that Penney, relied on by the circuit court, is controlling. Wisconsin had a general income tax on corporate income that was taken in. It superimposed on this tax an income tax on dividends\\u2014a tax on corporate income that was paid out. 311 U.S. at 442, 61 S.Ct. at 248-49. The case involved a Delaware corporation with its principal office in New York, where the dividends were voted and the dividend checks, drawn on New York banks, were sent out. The exaction of the tax in dispute was\\napportioned to the earnings derived from Wisconsin. The court held:\\nThe substantial privilege of carrying on business in Wisconsin, which has here been given, clearly supports the tax, and the state has not given the less merely because it has conditioned the demand of the exaction upon happenings outside its own borders. The fact that a tax is contingent upon events brought to pass without a state does not destroy the nexus between such a tax and transactions within a state for which the tax is an exaction.\\nId. at 444-445, 61 S.Ct. at 250. Penney is legally and factually inapposite. We do not think that Penney is decisive of the resolution of this case.\\nThe Comptroller agrees, of course, with the conclusion reached by the circuit court. But it seems that he is not enamored with the reasoning of the court in reaching that conclusion. He does not cite or refer to Wisconsin v. J. C. Penney Co., supra, relied on by the circuit court.\\nThe Comptroller disagrees, of course, with the conclusion of the Tax Court. But although the conclusion he reaches is the opposite of that of the Tax Court, he approaches it along the same path followed by the Tax Court. Both the Comptroller and the Tax Court look to see whether Hull and Smurlo continued to be partners in the Association after they became inactive and disabled respectively. The Tax Court said they did not; the Comptroller says they did. The Comptroller boils the issue down:\\n[R]etired partners were once members [of the Association], and the sole question is whether they continue as partners.\\n(Emphasis in original.) The Comptroller, as did the Tax Court, recognizes that the answer to this question is decisive.\\nThe Comptroller does not dispute the significant changes, pointed out supra, in the status of a pilot and in his relationship with the Association by reason of his becoming inactive or disabled. He claims, however, that \\\"[njone of this matters one iota in the result.\\\" He urges that, under the conformity rule, whether Hull and Smurlo are partners in the Association depends upon what the federal law considers them to be. He argues that under the federal law they are still partners. He bottoms his argument on this premise. The premise is apparent in the question he presents:\\nDoes Maryland tax the income of a non-resident partner when the partnership business is carried on in Maryland and the income to be taxed is partnership income under federal tax law?\\n(Emphasis added.) It shows in his statement of his argument:\\nINCOME THAT IS PARTNERSHIP INCOME UNDER FEDERAL LAW IS TAXABLE BY MARYLAND WHEREVER THE PARTNER MIGHT BE LOCATED AND WITHOUT REGARD TO HIS OWN ACTIVE PARTICIPATION IN THE BUSINESS.\\n(Emphasis added.) He points out that Art. 81, \\u00a7 315 \\\"makes explicit that partners, not the partnership, are subject to tax.\\\" (Emphasis added.) In maintaining that Hull and Smurlo are still partners in the Association, the Comptroller refers to various federal laws and regulations. He observes:\\nAll these rules may seem complex but are, in fact, quite simple and provide a simple answer for this case. The Pilot's Association, while certainly an unusual entity, is, nonetheless, a partnership for federal tax purposes. That has real consequences for its members\\u2014active or retired. They are partners.\\n(Emphasis added.)\\nThe gap between the fact that the Association is treated as a partnership for tax purposes and the assumption that, therefore, Hull and Smurlo upon becoming respectively inactive and disabled, each remained a partner in the Association, is too wide to traverse. The Comptroller tries to leap the gap by way of I.R.C. \\u00a7 736(a)(1) (1982), but he falls short. That provision of the Internal Revenue Code prescribes, in relevant part, that \\\"[pjayments made in liquidation of the interest of a retiring partner . shall . be considered as a distributive share to the recipient of partnership income if the amount thereof is determined with regard to the income of the partnership____\\\" The monthly payments to Hull and Smurlo under Art. 74, \\u00a7 12(a), sought to be taxed, were not made in liquidation of any interest in the Association. Their capital investment had been returned to them and they had no other interest to be liquidated. The provisions of \\u00a7 12(a) are plain and unambiguous. No reasonable construction of them could lead to the conclusion that the payments, prescribed by legislative mandate, were in liquidation of a partnership interest. They simply reflected what the legislature, in its wisdom, determined was to be paid to an inactive or disabled former member of the Association for the balance of his life for past services rendered. Treas.Reg. \\u00a7 1.736-l(a)(l)(i), T.D. 6832, 30 Fed.Reg. 8,574 (1965), flatly states that I.R.C. \\u00a7 736 applies \\\"only to payments made to a retiring partner . in liquidation of such partner's entire interest in the partnership.\\\" Nor were the amounts paid Hull and Smurlo necessarily determined with regard to the income of the partnership. They were guaranteed a minimum amount each month regardless of the partnership income, even if the Association had to borrow money to fulfill that obligation. Furthermore, the federal regulations to \\u00a7 736 make perfectly clear that local law governs who is a partner. Treas.Reg. \\u00a7 1.736-l(a)(l)(i) states that \\u00a7 736 does not apply \\\"if the estate or other successor in interest of a deceased partner continues as a partner in its own right under local law.\\\" Treas.Reg. \\u00a7 1.736\\u2014l(a)(l)(ii) provides: \\\"A partner retires when he ceases to be a partner under local law.\\\" The short of it is that I.R.C. \\u00a7 736 does not do what the Comptroller would like it to do, namely, establish that Hull and Smurlo were still partners in the Association.\\nThe Maryland law is of no more help to the Comptroller. Md.Code (1975, 1985 Repl.Vol.) \\u00a7 9-101(f) of the Corporations and Associations Article defines \\\"partnership\\\" to mean \\\"an association of two or more persons to carry on as co-owners a business for profit.\\\" See Madison Nat'l Bank v. Newrath, 261 Md. 321, 329, 275 A.2d 495 (1971). It follows that a person is a \\\"partner\\\" when he is associated with one or more other persons to carry on as co-owners a business for profit. We have spelled out earlier in this opinion the effect that the inactive and disabled status of Hull and Smurlo had on their relationship with the Association and with its active members. It is clear that Hull and Smurlo were no longer associated with the members of the Association to carry on as co-owners a business for profit. Therefore, in the contemplation of the law of Maryland, Hull and Smurlo then were not partners of the members of the Association in the trade of piloting through any connection with the Association or its members or in the operation of the piloting business.\\nWe now look to the monthly distribution made to Hull and Smurlo to see if, in the light of Maryland law, that resulted in their being partners in the Association. We first note that the money due for pilotage services, which was the source of the contributions, was not collected by the Association as the agent of Hull and Smurlo. The Association was paid the pilotage fees as the agent for its members, and Hull and Smurlo were no longer members. So Hull and Smurlo had no tie to the collection of the funds. The monies allocated by law for inactive and disabled former members of the Association were not paid to Hull and Smurlo, but to the Board, which then sent Hull and Smurlo the amount due them. The monies paid the Board were fixed by law, Art. 74, \\u00a7 12(a). The Association had no say as to the amount to be paid to the Board nor could it control the amount to be received by each inactive or disabled former member. Section 12(a) requires that the Board disburse the funds equally to such persons within 10 days after receipt. On the other hand, the Association controls the balance of the money available for distribution after the sums have been paid to the Board and after the payment of all expenses. It is disbursed \\\"in accordance with the bylaws\\\" of the Association, among its \\\"regular working lawfully licensed pilots.... \\\" Section 12(b). Therefore, the payments to the Board are an expense of the Association like any other expense except that such payments have first priority. The distribution by the Association to the active members of what is left after the payment of all expenses is a distribution of income earned by the Association. As we have seen, the distributions are treated as such by the Board and the Association and so reported by them on the appropriate federal forms. The legislative scheme is plain on the face of \\u00a7 12. As Hull and Smurlo assert, the statute \\\"clearly contemplates that payments by the Association to the Board . for retired and disabled former pilots are not payments to partners, but rather the payment of expenses that are merely calculated according to the amount distributed to partners [except for the $200 minimum requirement].\\\"\\nThe upshot of the matter is that, on the undisputed facts, neither the federal law nor the law of this State supports the view that Hull and Smurlo were partners of the members of the Association during the years involved here. On the contrary, the law of Maryland, which is controlling, clearly reflects the view that they were not partners.\\nWe have noted that the Comptroller deems \\\"the sole question\\\" in this case to be whether Hull and Smurlo continued as partners in the Association after they became respectively inactive and disabled. We have answered that question in the negative for the reasons hereinbefore set out. Our determination that Hull and Smurlo did not continue as partners disposes of the Comptroller's contention that the monthly payments that Hull and Smurlo received from the Board were \\\"income from business, trade, profession or occupation carried on in this State____\\\" Art. 81, \\u00a7 287. Therefore, as nonresidents, they were not taxable on those payments in Maryland.\\nThe essential facts were undisputed. We hold that the Tax Court was not erroneous as a matter of law in abating the assessments. Maryland Code (1957, 1980 Repl.Vol., 1987 Cum.Supp.) Art. 81, \\u00a7 229 (o). The Circuit Court for Baltimore City was wrong in reversing the judgment of the Tax Court and reinstating the assessments.\\nJUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED;\\nCOSTS TO BE PAID BY APPELLEE.\\n. This case involves the years 1980-1983. Maryland Code (1957, 1983 Repl.Vol.) Art. 74, \\u00a7 20 prescribed that the provisions of the article and any regulations promulgated under it \\\"are of no effect and may not be enforced after July 1, 1984.\\\" Therefore, in this opinion, references to Article 74 are to its provisions as they were in effect prior to 1 July 1984 and covered the years 1980-1983. The provisions appeared in the 1983 replacement to volume 6 of the Code. Citations herein to sections are to sections of Article 74 as then codified, unless otherwise indicated.\\nArticle 74 was reenacted effective 1 July 1984. Its sections were rearranged but there were no substantive changes in the law. See the 1985 cumulative supplement to the 1983 replacement of volume 6.\\n. American vessels in the coasting trade are exempt from the duty of employing a pilot. Md.Code, Art. 74, \\u00a7 11.\\n. Maryland Code (1957, 1980 Repl.Vol.) Art. 81, \\u00a7 280(a) declares: The taxable net income of an individual taxpayer of this State shall be that taxpayer's federal adjusted gross income as defined in the laws of the United States, as amended from time to time and in effect for the corresponding taxable year, with the modifications and less the deductions and personal exemptions provided in this subtitle.\\nArt. 81, \\u00a7 287, in effect in the years here involved, was repealed by Acts 1987, ch. 717, and a new section was enacted in lieu thereof, effective 1 July 1987. For provisions comparable to former \\u00a7 287, see Maryland Code (1957, 1980 Repl.Vol., 1987 Cum.Supp.) Art. 81, \\u00a7 280(c)(23)(i)2.\\n. In the light of our decision we do not reach the constitutional question presented by Hull and Smurlo, namely, whether the Comptroller was barred from imposing the taxes by due process of law.\"}"
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+"{\"id\": \"2075406\", \"name\": \"THE VALLEY SAVINGS BANK OF MIDDLETOWN, FREDERICK COUNTY v. CHARLES E. MERCER ET AL.\", \"name_abbreviation\": \"Valley Savings Bank v. Mercer\", \"decision_date\": \"1903-06-30\", \"docket_number\": \"\", \"first_page\": \"458\", \"last_page\": \"483\", \"citations\": \"97 Md. 458\", \"volume\": \"97\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:35:36.662407+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE VALLEY SAVINGS BANK OF MIDDLETOWN, FREDERICK COUNTY v. CHARLES E. MERCER ET AL.\", \"head_matter\": \"THE VALLEY SAVINGS BANK OF MIDDLETOWN, FREDERICK COUNTY v. CHARLES E. MERCER ET AL.\\nRelease of One of Several foint Debtors\\u2014 Who is Holder in Good Faith of Promissory Note\\u2014Note Obtained by Fraud and Negotiated Before Maturity to Bank\\u2014Instructions to fury\\u2014Insufficient Evidence to Show Bad Faith of Holder.\\nA release, not under seal, of one of two or more joint debtors, all being principals, does not discharge the other debtors.\\nThe agent of the owner sold a worthless Spanish jackass and obtained from the purchasers a promissory note payable to the seller. The note was in fact obtained by means of fraudulent representations and there was a failure of consideration. The payee transferred the note before maturity and for a valuable consideration to the plaintiff bank. In an action thereon, the trial Court, at the instance of the plaintiff, instructed the jury that if they found that when the plaintiff acquired the note it had no notice of any fraud in its obtention, or of any failure of consideration therein, then the plaintiff is entitled to recover, and that there was no legally sufficient evidence from which the jury could find that the plaintiff had any knowledge or notic\\u00e9 of fraud or want of consideration in the making of the note. At the instance of the defendants the Court also instructed the jury that if they found that the note was obtained from the defendants by fraud, then the burden is on the plaintiff to show that it became the holder of the note before it was overdue, in good faith, for value and without notice of anyinfirmily or defect in the title of the persons negotiating it to the plaintiff, and unless the jury believe from the evidence that said note was thus acquired by the plaintiff their verdict should be for the defendants. Held, that there is a direct conflict between these two instructions, because by the first the jury are told that there is no legal evidence of knowledge or notice of fraud, and yet by the second they are allowed to find that the note was not taken in good faith; that, as the case is now presented, plaintiff\\u2019s instruction was properly granted, and defendants\\u2019 instruction should have been refused.\\nHeld, further that if, upon the facts of the case, such an instruction as that of the defendants above mentioned could properly be granted, then it was error to reject an instruction asked by the plaintiff to the effect that if the plaintiff acquired the note without knowledge that it had been obtained by fraud, then the plaintiff is a bona fide holder, and merely suspicious circumstances sufficient to put a prudent man on inquiry, or even gross negligence on the part of the plaintiff at the time it acquired the note, are not sufficient of themselves to prevent a recovery, unless the jury find from the evidence that in taking said note the plaintiff acted in bad faith.\\nThe note in this case, when taken by the plaintiff, bore the following endorsements : \\u201cReceived of J. W. D. \\u00a733.33 on the within note, and he is hereby released from further payment on the same.\\u201d \\u201cReceived of E. D. H. $33 33 on the within note.\\u201d Neither was signed. Held, that if these endorsements were the only suspicious circumstance or evidence to show knowledge of fraud by the plaintiff, then such circumstance or evidence was not legally sufficient to show bad faith or to prevent recovery by the plaintiff, and the jury should have been so instructed.\\nOne who takes a promissory note before maturity and for value, without notice or knowledge of defects in the title of the endorser or fraud in its inception, is a holder in good faith.\\nAppeal from the Circuit Court for Frederick County (Henderson and Motter, JJ.)\\nPlaintiff\\u2019s 3rd Prayer.\\nThat neither suspicion of defects in said note, or of fraud in its obtention, or the knowledge of circumstances which would excite suspicion in the mind of a prudent man, or gross negligence on the part of the plaintiff, is sufficient to charge said plaintiff with notice of any fraud or failure of consideration in said note. [Rejected.)\\nPlaintiff \\u2019s 4th Prayer.\\nIf the jury find from the evidence that the plaintiff acquired the note in question for a valuable consideration before its maturity, and that it acquired said note without knowledge that the same had been obtained by fraud or without consideration, then the jury must find that the plaintiff is a bona fide holder of said note for value, and merely suspicious circumstances sufficient to put a prudent man on in quiry, or even gross negligence on the part of the plaintiff at the time it acquired said note, are not sufficient of themselves to prevent a recovery by the plaintiff, unless the jury find from the evidence that in taking said note the plaintiff acted in bad faith. {Rejected,.)\\nPlaintiff's 6th Prayer.\\nThat if the jury find from the evidence in this cause that the defendants signed the note sued on in this case, and shall further find that said note was endorsed and delivered to the plaintiff by the payee thereof for value before its maturity and shall further find that said plaintiff at the time it acquired said note had no notice of any fraud in the obtention of said note, or of any failure of consideration therein other than the note itself shows, then their verdict shall be for the plaintiff, provided they shall find that there was due at the time of the' institution of the suit from the said payee, on account of the loan for which said note was endorsed and delivered as security, an amount greater than the amount of said note. {Rejected.)\\nDefendants' 4th Prayer.\\nThat if the jury believe from the evidence that the promissory note sued on in this case was obtained from the defendants by fraud, then the burden of proof is on the plaintiff to show that it became the holder of said note before it was overdue in good faith for value and without notice of any infirmity or defect in the title of persons negotiating it to the plaintiff, and unless the jury believe from the evidence that said note was thus acquired by the plaintiff their verdict should be for the defendants. {Granted.)\\nThe cause was argued before McSherry, C. J., Fowler, Page, Boyd, Pearce and Schmucker, JJ.\\nEdgar H. Gans and John S. 'Newman (with whom were Charles W. Ross and Emory L. Coblentz on the brief), for the appellant.\\nFrom a comparison of the plaintiffs\\u2019 first prayer and the defendants\\u2019 fourth it is evident that while the Court instructed the jury that there was no evidence in the case that the plain tiff had any knowledge or notice of fraud or want of consideration in taking the note there was left to the jury the question whether the plaintiff took the note in good faith. We contend that these instructions were inconsistent. While the fourth prayer is not objectionable in form it should not have been granted in this case in view of the concluding clause of the plaintiff\\u2019s first prayer ; in other words, if the plaintiff had no knowledge or notice of any fraud, &c., in the inception of the note, then there was also no evidence from which the jury should have been allowed to say that the plaintiff acted in bad faith in taking the note. The proposition is probably more accurately expressed as follows :\\nOne who acquires a note before maturity for value from the payee without knowledge or notice of any infirmity or defect in the title of the payee thereto is a holder in due course of said note which includes the taking of said note in good faith.\\nThe correctness of this proposition must be found in a consideration of the Negotiable Instrument Act passed by the Legislature in 1898, to be found in Poe\\u2019s Supplement to the Code, Art. 13. Prior thereto there had been quite a number of cases in which this Court discussed what constitutes one a bona fide holder of a note who takes the same free from the equities of the original parties. Of these cases the following are the most conspicuous: Maitland v. Citizens' Nat\\u2019l Bank, 40 Md. 540; Citizens\\u2019 Nat\\u2019l v. Hooper, 47 Md. 88; Williams v. Huntington, 68 Md. 590; Griffith v. Shipley, 74 Md. 591; Cover v. Myers, 75 Md. 406; Banks v. McCosker, 82 Md. 518; McCosker v. Banks, 84 Md. 292; Buchanan v. Mechanics\\u2019 Loan and Savings Institution, 84 Md. 430. These cases adopt the present English rule on the subject agreeing in that respect with the great majority of the Courts in this country. The Court will also recall the history of the English law on the point which will be found reviewed in 1 Daniel on Negotiable Instruments, chapter 24.\\nThe early English rule as to who was a bona fide holder applied the simple test of whether the plaintiff took in good or bad faith. This rule was later departed from by the adoption of the rule to the effect that a holder was not freed from equities if he took the note under such circumstances as would have caused a reasonably prudent man to have made inquiries into the facts. Later this test was itself modified by the doctrine that to defeat the rights of the holder against the maker he must have taken the note under circumstances showing gross negligence on his part. Finally-the rule was re-established in accordance with its earliest form, the test being simply that of honesty or dishonesty on the part of the taker of the note or bona fides or mala fides. The matter of knowledge or notice was simply a question of evidence bearing upon the sovereign test of good or bad faith. Thus while actual knowledge by the taker of the'equities between the original parties was conclusive of'the question of bad faith, mere notice of circumstances which might arouse suspicion or even gross negligence on the part of the taker was riot conclusive. At the utmost it was simply some evidence tending to show bad faith. The history of judicial decisions on this question prior to the enactment of the Negotiable Instrument Act shows clearly a determination on the part of the Courts to put the law in a more favorable attitude towards the rights of one who takes commercial paper for value. The necessity of this is quite apparent when it is remembered that a suit of a holder of such a \\u2022note must ordinarily be' enforced against the maker thereof before a jury whose natural sympathies are aroused in favor of the maker who has been defrauded. In order to uphold the rights of such a holder of Commercial paper it is necessary that the law be emphatically and distinctly declared by the Courts, so as not to leave to the speculative sympathies of the jury an opportunity to exempt a defrauded maker at the expense of the holder for value. The reason of this tendency to uphold the rights of the holder in due course, is of course found in the importance to the commercial world of having commercial paper pass readily current for value. While this tendency on the part of the Courts is plainly evident, yet there were many cases in which the definition of a bona fide holder were somewhat indefinite. It was with a view to making the law on this point as well as other question of bills and notes more certain that the Negotiable Instrument Act was recommended by the American Bar Association and passed by the Legislature of many States. In the Maryland Act, which is almost identically the same as that of the other States, which have passed this law, the rights of a holder of negotiable paper other than an immediate party thereto are defined by the sub-chapter 5, secs. 70 to 78 inclusive.\\nFrom this definition it is apparent that the relative positions of notice and bad faith in reference to the rights of a holder are reversed, that is, while formerly bad faith was the general question with notice as a subsidiary element or rather evidentiary fact, now notice is the general question with bad faith as the subordinate one. In other words, notice is the broader question consisting either. I. Of actual knowledge of an infirmity or a defect, or 2. Knowledge o\\u00ed such facts as to show bad faith on the part of the holder.\\nReferring now again to the two prayers granted we find that the Court specially instructed the jury that the plaintiff had no knowledge or notice of fraud or want of failure of consideration in the making of the note sued on (and it is not contended there was any other element of infirmity in the instrument or defect in the title of the payee) and yet, at the same time, the Court leaves to the jury, by the defendant\\u2019s fourth prayer, the opportunity to find bad faith on the part of the plaintiff in taking the note. Notice being the broader question and including bad faith and the Court having expressly declared that there was no notice it was error to allow the jury to find any bad faith on the part of the plaintiff.\\nBut, apart from the aforegoing consideration of the relation of notice and good faith to be drawn from the negotiable instrument law it is very difficult to conceive of any set of circumstances which apart from either knowledge or notice of infirmity or defects in the formation of the note or title of former holders thereto, would give rise to a presumption of bad faith on the part of a subsequent taker. Apart from the Act, bad faith may be considered a broader question than act ual knowledge, but not broader than notice, which is of itself actual knowledge of such facts which, if made the basis of inquiry, would disclose defects in the note. In a number of Maryland cases on the subject the expressions of the Court have indicated that good faith and knowledge or notice of the infirmity of the note are equivalent terms. Totten v. Buey, 57 Md. 451; Williams v. Huntington, 68 Md. 601; Crampton v. Perkins, 65 Md. 22.\\nIf, however, the Court concludes that the question df good faith is a question independent of and apart from'that of notice, and that, therefore, the defendant\\u2019s fourth prayer was properly granted then the Court erred in rejecting the plaintiff\\u2019s fourth prayer. There can be no doubt that this latter prayer is unobjectionable and entirely good. It is copied verbatim (with the exception of the substitution of the word \\u201cacquired\\u201d for that of \\u201cpurchased\\u201d) from the-plaintiff\\u2019s second prayer in the case of Cover v. Myers, 75 Md. 406. That case presented the same issues as the one under discussion. The plaintiff\\u2019s second prayer in that case was granted by the Court below (Judge Jones) and met with no criticism, on the appeal, although the judgment in the case was reversed and a new trial awarded. By the refusal of the plaintiff\\u2019s fourth prayer in the present case the jury were left without any instruction whatever as to what constituted good faith, and, consequently, were at liberty to speculate about the matter.\\nAgain it was error for the Court to reject the plaintiff\\u2019s sixth prayer. In this, the plaintiff asked an ' instruction for itself if the jury should find that at the time the plaintiff acquired the note it had no notice of any fraud in the obtention of said note or any failure of consideration other than the note itself showed, See. As the Court decided on granting the first prayer of the plaintiff that there was no legally sufficient evidence of notice whatever, the further action of the Court in granting the defendant\\u2019s fourth prayer and rejecting the plaintiff\\u2019s sixth prayer would seem clearly to indicate that the Court was of the opinion that there was some evidence legally sufficient to show mala fides on the part of the plaintiff, which could be inferred by the jury by virtue of the receipts and release endorsed on the note. In this we think there was error and that the Court should have instructed the jury on the facts of this case that there was no legally sufficient evidence of any bad faith. The question of any bad faith vel non, was\\\" really one of law rather than one of fact. In this connection-it will be remembered that the plaintiff rested its case after the \\u25a0 introduction of the note. The defendant then gave evidence tending to show fraud in the inception of the note after which ' the plaintiff, as was incumbent upon it gave evidence showing the circumstances by which the note had been acquired by-it.; These circumstances, we contend, fail to give rise to any pre-' sumption of bad faith by the plaintiff in the transaction. It was, however, then competent for the defendant in rebuttal to' show that the plaintiff had actual knowledge or notice of the infirmity or defect of the note. If this had been done by the defendant an issue of fact on the point would properly have been submitted to the jury, but in default of such rebutting\\u2019 evidence it was entirely competent and proper for the Court to rule as a matter of law that no presumption of bad faith arose from'the circumstances attending the acquisition of the-note by the plaintiff. Hamilton v. Vought, 34 N. J. Law, 187; Cheever v. R. R. Co., 150 N. Y. 65; Am. Exchange Bank v. N. Y. Belting Co., 148 N. Y. 698.\\nWhy should the question of good faith have been left to' the jury in this case? The theory of bad faith, as separate from knowledge of infirmity in the instrument, is that the circumstances surrounding the taking of the instrument by the holder were of such a nature that he ought to have made a further investigation which, if it had been made, would have revealed to him the actual knowledge of the infirmity or defect, or the equities between the original parties. But this theory has no foundation in fact here. The evidence shows that Mr. E. L. Coblentz did enquire from Hanan, agent of the payee, what was the meaning of the endorsements on the notes, and that Hanan informed him of what the actual circumstances, were. If the same question had been asked each one of the- defendants the same information must necessarily have been given. It would be most unreasonable to charge bad faith to a taker for his failure to learn facts or possible equities not known at the time of the taking to the makers of the instrument. It will be remembered that the notes were executed April I ith and 12th, and were taken by the plaintiff on April 29th. It is not pretended that at the latter time any of the defendants had any knowledge of fraud practiced upon them in the making of the notes or of any failure of consideration with respect, thereto. And it is of course well settled that facts coming to the attention of the holder after the taking of the instrument do not affect his rights in any way. On the contrary, the evidence shows that the bank\\u2019s action in taking the note was in the due course of business and entirely honest.\\nAs to the release. It will be noticed that this so-called release is not under seal and is not even signed. It, therefore, could not possibly amount to anything more than an agreement not to sue Downey on the note. It is, of course, true that where one of two or more joint or joint and several makers of an instrument is validly .released his co-makers'are also discharged from liability. But this occurs only when the release is a technical one under seal, and. even in the latter case when the intention of the parties is apparent not to create a release of the obligation, Courts construe the release simply as a. covenant not to sue. The case of Elgin City Batiking Company v. Self (Texas Civil Appeals, 1896), 35 S. W. Rep. 953, presents a case practically identical in every respect with the case at bar, where this same defense was made. In that \\u2022case two notes had been given by nineteen joint makers in. payment of a stallion. One of the makers for services rendered to the payee in connection with the transaction including the use of his influence in procuring the others to sign the note was credited with $150. on the note by the payee, and was also given a release under seal from any further liability on the note which was subsequently negotiated to the plaintiff, which brought the suit. The stallion . having proved worthless the defense was made that by the release of one of the joint makers all were discharged. The Court, however, overruled this defense.\\nIn Line v. Nelson, 38 N. J. L. 358, one of the joint makers of a note paid one-half of it and the payee agreed to release him from further payment. This was relied on as a defense to a suit on the note. Said the Court, \\u201c That a release to one of several obligors, whether they are bound jointly, or jointly and severally, discharges the others and may be pleaded in bar by all, will not be controverted. 2 Saund., 48, note 1; Collyer on Partners, secs. 606-8; Rowley v. Stoddard, 7 Johns, 207. But a release of one of two joint promissors, to have this effect, must be a technical release under seal. In Harrison v. Close, 2 Johns, 447, an agreement in parol not to look to one of two joint and several makers of a promissory note for payment, was held to constitute no defense to the action. This case was approved and the rule fully recognized by the New York Courts in the following, among other cases. Rowley v. Stoddard, 7 Johns, 207; Catskill Bank v. Messenger, 9 Cowen, 36; Frink v. Green, 5 Barb. 455.\\nThe same doctrine prevails in Massachusetts. Shaw v. Pratt, 22 Pick. 305, cites the New York cases, and says, that the principle is well settled; and it is so regarded in the later case of Pond v. Williams, 1 Gray, 630 In our own State, the case of Administrators of Crane v. Elling, 3 Green, 423, is an authority to the same effect. This view is fuly supported by the English authorities referred to in the cases above cited The reason of the rule is, that an agreement not under seal to discharge a particular person or not to sue him does not extinguish the debt, and therefore cannot bar the suit to recover it.\\u201d To the same effect are the following cases, of which nearly all were suits on notes : Merchants' Bank v. McAnulty, 89 Tex. 124; Pannel v. McMechen, 4 H. & J. 474; Salmon v. Clagett, 5 G. & J. 315-54; State v. Gott, 44 Md. 345-7; Wood v. Brett, 9 Grant Ch. (U. C.) 452; Bradford v. Prescott, 85 Me. 482; Goodnow v. Smith, 18 Pick. 414; Ruggles v. Patten, 8 Mass. 480; Shaw v. Pratt, 22 Pick. 305; Pond v. Williams, 1 Gray, 630-6; Bender v. Been, (la.) 5 L. R. A. 596; Brantly Contracts, pp. 45\\u20146.\\n\\u2022In. section 1290 of Daniel on Negotiable Instruments the author states: \\u201cThe release of a party to a bill or note by any agreement .upon a valuable consideration is as effectual as if under seal.\\u201d In-\\u25a0 the note he cites the following cases: Benjamin v. McConnell, 4 Gilm, 236; Millikin v. Brown, 1 Rawle, 391 Nicholson v. Revill, 4 Ad. & El. 675; Sterling Wrench Co. v. Amstutz, 50 Ohio St. 484.\\nOf these cases Millikin v. Brown, in 1 Rawle has been overruled by Burke v. Noble, 48 Pa. St. 168\\u201474.\\nNicholson v. Revill has been somewhat criticised in Kearsley v. Cole, 16 M. & W. 128.\\nBenjamin v. McConnell was followed in Rice v. Webster, 18 Ill. 331\\u20143, but both cases were dissented from, if not overruled, by the later case of Parmalee v. Lawrence, 44 Ill: 405\\u201413, which is cited with approval in Moore v. Stanwood, 98 Ill. 608, and in Chicago v. Babcock, 148 Ill. 353-66.\\nMilton G. Urner and J. E. R. Wood (with whom was Hammond Urner on the brief),, for the appellees.\\nThe release of Dr. J. W. Downey, one of the makers of the note, before maturity, without the knowledge and consent, of all the other makers, operated in law to release all the makers. There is no principle better established by authority than that where two or more persons are jointly and severally bound and the obligee releases one of them, at law they are all discharged. Nicholson v. Revill, 4 Ad. and El. 675; Clagett v. Salmon, 5 G. and J. 351; Yates v. Donaldson, 5 Md. 389; Booth v. Campbell, 15 Md. 569; Blackburn v. Beall, 21 Md. 208; Obendorff v. Union Bank, 31 Md. 126; Smith v. State, 46 Md. 617; Tuckerman v. Newhall, 14 Mass. 584.\\nIt was held in the Court below, that one joint maker can only be discharged from liability by a technical release under seal, and that as Dr. Downey was not released in that manner he was not discharged. In that the Court below was clearly wrong. \\u2022; - .\\nThe only question in any case is whether the agreement to release is a valid, binding contract; whether it is binding upon the obligee or the person who has agreed to release. Like all contracts, the agreement must have a consideration to support it. A seal imports a consideration, and therefore an agreement under seal to release is good without any other consideration than the seal imports. A simple agreement to receive part of an overdue debt in full satisfaction of the whole and to release the debtor from the balance is without consideration and, therefore, not binding. But if the debt is not due and one of the makers of a joint, or joint and several, obligation pays what he is then under no legal liability to pay, and in consideration of that the obligee agrees to release the one who makes the payment, such agreement is based upon a sufficient consideration and is binding. A very slight consideration is sufficient to support such an agreement. \\u201cIf the obligor or lessor pay a lesser su m either before the day or at another place than is limited by the condition, and the obligee or feoffee receiveth it, this is a good satisfaction.\\u201d Fitch v. Sutton, 5 East. 227. Pinpel\\u2019s case, Coke\\u2019s Reports, part 5, p. 117.\\nIn State, use of Barnard v. Gott, 44 Md. 341, it was held that a release, being under seal, to the principal discharged the surety. There the whole fund was due and payable, and the only consideration for the discharge of the principal, as to the whole upon payment of part only, was what the seal imported.\\nIn the case of Steinman v. Magnus, 11 East. 391, a release, not under seal, of an overdue debt, by the payment of twenty per cent of the amount due, was held to be a binding release, because there was an independent consideration to support it; and in Bender v.Been, (la.), 5 L. R. A. 597, it was held that a release under seal of an overdue paper was not a discharge if the deed of\\u00b0 release by its recitals showed it was really given without consideration.\\nBut in this case Dr. Downey signed the notes in question in pursuance of a previous agreement that he should be released, and his release was but an execution of that agreement. He refused to sign until he was furnished by the payees with $100 with which to pay his share. He signed at payee\\u2019s request as an inducement for the defendants to sign, and when the pajrees had accomplished their fraudulent purpose, the secret agreement was- consummated by Downey paying back the $ ioo and being released. It goes without saying, that the release, was binding upon the payees, and if binding upon them, then upon principle and authority the defendants, the co-makers; were thereby released.\\nEach defendant signed the notes-as one of fourteen makers who were jointly-and severally bound for the whole debt. By the contract thus entered into each maker was not only responsible for his*one-fourteenth part, but in case of the insolvency of any the share of the solvent makers would be thereby increased, and if any one should be required to pay more than his share, he would have the right to demand contribution from his co-makers.- Such was the contract and its legal effect as originally made, and when Dr. Downey was released that contract was materially altered. ...\\n. The plaintiff in this case is not entitled to any equitable consideration, because it-'took the notes with-full knowledge, disclosed by the* endorsements on the notes themselves, that Dr. Downey,-the first maker, had been released, and is chargeable with\\u2019 knowledge of the law, that -a release of one joint maker releases all. The note was not \\u201ccomplete and regular on its face\\u201d when taken by-the plaintiff. - The plaintiff recognized Downey\\u2019s release by not joining him as a defendant in the suit. It was error to omit him from the suit if he was not released. A joint and several note must be treated as \\u201cwholly joint or wholly several.\\u201d All-the makers must be sued on jointly or each one separately. Merrick v. Bank of Metropolis, 8 Gill, 59; Poe\\u2019s Pleading,,.sec. 382.\\nThe infirmities in the note sued on consist in its having been procured by fraud and in the absolute failure of consideration, which are - established by incontrovertible proof and the admission of*the plaintiff- The plaintiff was then required, \\u201cbefore it could legally recover, to establish by proof that it was the bona fide owner of the note; that \\u00bf\\u00bfacquired it for value before maturity, and without notice or knowledge of any infirmities in its origin.\\u201d Williams v. Huntington, 68 Md. 598 Griffith v. Shipley, 74 Md. 599, &c.; Totten v. Bucey, 57 Md. 452.\\nIf the plaintiff did not comply with this legal requirement, then the plaintiff's first prayer ought not to have been granted and the defendant\\u2019s first and second prayers, offered at the close of the case, should have been granted. The appellees insist the plaintiff\\u2019s proof of the want of knowledge of the fraud and failure of consideration was not legally sufficient. The plaintiff is a corporation and can only act through its officers and agents and through them it acquires binding information. If the burden is on a natural person to prove \\u201cthat at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it,\\u201d then that burden is equally upon a corporation and to discharge the same it is necessary to prove by each officer whose knowledge, if he possessed the same, would bind the plaintiff, that he did not possess such binding information. The plaintiff proved by its president, treasurer, discount clerk and the three members of the loan committee that they had no knowledge of the fraud, but they do not testify they had no notice of the other infirmity, the want or failure of consideration\\u2014the admitted fact in the case. The evidence shows the notes were at least informally discussed at a meeting of the board of directors, when a quorum was present, which must have been at least six members. Now, if any one of these directors had been notified officially of the fraud in the procurem\\u00e9nt of the note or that it was given without consideration, and such notice had been given for the purpose of being communicated to the board, the plaintiff would have been bound by it. U. S. Insurance Co. v. Shriver, 3 Md. Ch. 388. It was therefore incumbent upon the plaintiff to negative such knowledge as to each of its officers and directors, who were connected with the transaction, and it undoubtedly failed to meet this requirement.\\nThe granting of its first prayer rendered the 2nd, 3rd, 5th and 6th prayers of plaintiff unnecessary and superfluous, as they all, in various forms submitted the question of notice to the jury-and defined its scope and meaning. It is apparent that these prayers were offered only to meet the emergency of the first prayer being rejected. They could only be serviceable or pertinent.in the event of the rejection of the plaintiff\\u2019s .first prayer, and they were entirely superseded when that \\u00a1prayer was granted. The appellant certainly cannot complain that its definitions of notice were not given .to the jury and that they were not left to find whether or not there was notice, when upon its own application the jury .were instructed that .there was no notice at all.\\nIt is. submitted that appellant\\u2019s 4th prayer is bad on various \\u25a0 grounds. In the first place it is confusing and contradictory. .It tells the jury that if plaintiff acquired the note without notice of fraud or want of consideration, then plaintiff\\\" was a bona fide holder for value, and that suspicious circumstances and gross negligence will not prevent a recovery, unless the jury find from- the evidence that the plaintiff in taking the note .acted in bad faith. The first and granted prayer of plaintiff, \\u2022 instructed the jury that plaintiff had no notice, and if .the fourth -prayer had been also granted, the two together would have .declared in effect that as the plaintiff had no notice of fraud .or want of consideration it was a bona fide holder for value .unless the jury found it took the note in bad faith. 'It would begin by taking from the jury the question of bona fides and .end by leaving that question to their determination.\\n, \\u201cGood faith\\u201d is something distinct from \\u201cno notice.\\u201d , If in .some of the decisions prior to the Negotiable Instruments Act mere was a tendency to blend the questions of good faith and .notice, there can now be no doubt that proof of an acquisition for. value and without knowledge of the infirmity of the ..instrument does not necessarily establish good faith. The latest case upon this subject recognizes this plain distinction in a prayer which deals separately and independently with the question of bad faith and which received the approval of the Court of Appeals. Black v. First National Bank of Westminster, 96 Md. 399.\\nIt is also contemplated by the Negotiable Instruments Act that the endorsee, without having had actual knowledge of the infirmity or defect, may have had knowledge of \\u201csuch facts that his action in taking the instrument amounted to bad faith.\\u201d Code, P. G. L., Art. 13, sec. 75. \\u201cMere negligence or want of caution, such as may exist without the imputation of bad faith, will not do; but a party must not be willfully blind and inattentive to such facts and circumstances as would lead him directly to the knowledge of the infirmities of the paper.\\u201d Griffith v. Shipley, 74 Md. 600; Gordon v. Jones, L. R., 2 App. Cas., 616; Canajoharie Bank v. Diefendorf, 123 N. Y. 191; Shirk v. Neihle, (Ind.), 59 N. E. Rep., 282.\\nIt is not necessary to discuss the facts of the case as bearing upon the question of good faith. This question was submitted to the jury and was determined by their verdict adversely to the plaintiff. It was proposed to be submitted to the jury by the plaintiff\\u2019s 4th prayer, and was actually submitted to them by the defendants\\u2019 4th prayer, and as no special exception was taken by the plaintiff to the granting of the defendant\\u2019s prayer, this Court will take it as an established fact that there was legally sufficient evidence from which the jury could find that the plaintiff did not acquire the note in good faith. Gunther v. Dranbauer, 86 Md. 1; Gambrill v, Schooley, 89 Md. 549.\\nThe plaintiff can have no valid objection to the granting of the defendants\\u2019 4th prayer. It embodies correct principles of law in the very terms of the Negotiable Instruments Act and it submitted to the jury the question of good faith upon the evidence in the case. This evidence was not only legally sufficient, but was clear and convincing as to the plaintiff\\u2019s want of good faith in this transaction, and in the absence of a special exception this will not now be considered an open question.\", \"word_count\": \"9961\", \"char_count\": \"56211\", \"text\": \"Fowler, J.,\\ndelivered the opinion of the Court.\\nThis is a suit by the Valley Savings Bank of Middletown on a promissory note for $600. The makers of this note are the thirteen defendants and J. W. Downey. The note is joint and several dated April i ith, 1901, and payable one year after date to order of R. S. Delauder & Co. The following endorsements appear on it: \\\"Received of J. W. Downey thirty-three 33-100 dollars on within note, and he is hereby released from any further payment on the same;\\\" and \\\"Received of E. D. Hobbs thirty-three 33-100 dollars on within note.\\\" Neither of these was signed, but it appears by the evidence that Downey wrote the first, but there is nothing to show who wrote the second. Following these appeared the endorsement written on the note at the time it was delivered to the plaintiff\\nIt appears from the testimony that one Hanan, acting or pretending to act as agent for Delauder & Co., the payee of the note, undertook to sell a Spanish Jack to certain residents of Frederick County for breeding purposes. The 'price of the animal was agreed to be fixed at $1,800. The evidence shows, and indeed it is conceded, the whole transaction was'a fraud on the part of the agent of the vendors, whose plan was to get subscriptions from eighteen persons of $100 each to purchase the animal. He persuaded Dr. Downey to subscribe in order that others might be induced to' follow his example and secretly gave him the money to pay his subscription. It is not necessary however to narrate all the facts relating to this fraudulent transaction. It is sufficient. to say that the defendants with Downey' signed and delivered to Hanan, the agent or alleged agent of the vendors, three notes each for $600 for the purchase-money agreed to be paid for the jack\\u2014the note sued on in this case being the first of the series. It also appears that Hobbs never did sign the notes, because he agreed to pay his subscription in cash.\\nHaving thus secured the execution of the three notes, Hanan applied to Mr. Coblentz, one of the directors of the plaintiff bank, to get his assistance in borrowing money on them. After some negotiation and examination into the financial standing of the makers of the note, the plaintiff decided to make a loan of $1,600 to R. S. Delauder & Co. and take the three $600 notes as collateral security. The proceeds of this loan were placed to the credit of Delauder & Co. and were subsequently checked out and used by them.\\nThe defendants have all pleaded the general issue. During the trial the plaintiff took two and the defendants five exceptions\\u2014some of them relating to the rulings of the Court upon objection to testimony and some to the granting or refusal of their respective prayers. The precise points of the various exceptions will appear further on when we consider them. The verdict and judgment were in favor of the defendants, and although we have before us in this record only the appeal of the plaintiff we will, in accordance with the provisibns of sec. 76, Art. 11 of the Public Local Laws (Frederick County), pass upon all the exceptions of all the parties inasmuch as our conclusion is that the judgment must be reversed.\\n1. In the first place we will consider the question presented by the release of Downey, one of the joint makers of the note sued on. The defendants contend that the legal effect of this release was to discharge all the other joint makers. The general rule has often been said to be that where one or two or more joint, or joint and several, makers of an instrument are validly released all are discharged. But this general statement has frequently been somewhat restricted, and it is said, and we think the rule is supported by reason as well as authority, such a result will not necessarily follow, unless the release is a technical one under seal. Thus in the case of State v. Gott, 44 Md. 346, &c., the rule as applicable to contracts is said to be, quoting from Story on Contracts, \\\"A release under seal, if given to one of several debtors jointly liable, enures to the benefit of all. But a release by parol to one debtor will not operate as a discharge to other debtors jointly liable, and can only be pleaded by the debtor to whom it was given.\\\" The reason of this rule is said to be that an agreement not under seal to discharge a particular person or not sue him does not extinguish the debt, and therefore cannot bar the suit to recover it. Line v. Nelson, 38 N. J. L. 358. But whatever the reason may be, the rule itself, as announced in State v. Gott, supra, is firmly established; and as was said in that case in 1875 we can say now, we have not been referred to any satisfactory authority in which this doctrine has been overruled.\\nSeveral Maryland cases were relied on by the defendants to support their views as to the effect of the release of Dr. Downey, but we do not think they do so. Thus Claggett v. Salmon, 5 G. & J. 351, was a case of principal and surety and it was in considering the rights of a surety that the Court used the general language relied on by the defendants. There was in .that case no question before the Court requiring any consideration of the effect of a parol release on the liability o\\u00ed joint debtors when, as here, they are all principals. The same may be said in regard to Oberndof v. Union Bunk, 31 Md. 126, and Blackburn v. Beall, 21 Md. 208. In Yates v. Donaldson, 5 Md. 389, the joint debtors purchased certain property from their creditor for $1,700, which they agreed in writing to pay at a stipulated time. Subsequently the creditor agreed to accept from one -of them notes for two-thirds, and from the other notes for one-third, of the joint indebtedness. One of the 'joint debtors complied with his-part of the agreement and paid his notes at maturity, but the other failed to fully do so. The creditor sued both of them to recover the balance. It was held that while, if the parties had been principal and surety, such a contract would have released the one who was surety, -yet being both principals it did not have that effect. It is .true the Court used the language relied on by the defendants and used it in regard to principals, namely, that \\\" if one be .released both will be, except in a case where the remedy against the other is expressly reserved.\\\" But the question still remains, how released. Of course if the release is under seal and shows, as in State v. Gott, that the indebtedness is satisfied, all the joint debtors would be released; but if the -release is only by parol such release can be pleaded as a discharge only by the debtor so released. State v. Gott, stipra. And in the very case relied on by the defendants (Yates v. Donaldson, supra), it was held that the matters relied on by one of- the joint debtors was not a good defense, and that in a case like that and the one we are considering, where all are principals, it would be impossible to adjust the equities in a suit at law by the creditor. It would be impossible, said the Court, to render a judgment upon any adjustment of these equities, because the only judgment in such a case must be for the same amount against all the defendants. Another Maryland case cited by the defendants is Booth v. Campbell, 15 Md. 569, in which it was said that a release or discharge of one of several defendants in a judgment, jointly liable thereon, operates as a discharge of all. Undoubtedly an effective and valid release must have that effect, but the question again arises what kind of a release or contract did the Court in that case hold would operate as a discharge. There was a parol agreement on the part of the judgment creditor and one of the judgment debtors that if the latter would pay twenty per cent on the amount of the judgment, and secure a certain contract from another party (which latter condition was held to be a good collateral consideration), the judgment creditor would \\\" release the judgment.\\\" The sum agreed upon was paid and a receipt of the creditor therefor was filed in the cause with an entry on the record of its being in full of said judgment. This, together with the additional collateral consideration, was held to be a good accord and satisfaction. In other words, the judgment having been satisfied all liability therein was discharged. The very record which showed the existence of the judgment evidenced its satisfaction, and being satisfied the judgment of course cannot be made the basis of a suit against anybody. The case now before us presents a very different state of facts.\\nWe do not think, therefore, that there was error in the various rulings of the Court below refusing to recognize the release of Downey as a discharge of the defendants and a bar to this suit. What we have said above disposes o\\u00ed the defendants' first and second bills of exceptions relating to testimony and to their fifth so far as it is based on the rejection of their third, sixth and seventh prayers.\\nThe most important of the remaining questions is presented by the plaintiff's second bill of exception, which relates to the granting of defendants' fourth and the rejection of plaintiff's second, third, fourth, fifth and sixth prayers.\\nFirst, then, in regard to the granting of the defendants' fourth prayer. In order to consider the question presented by this exception, we will have to refer to plaintiff's first prayer which, as we have seen, was granted. By this prayer the jury was instructed that if they find from the evidence that the defendants signed the note sued on and that said note was endorsed by the payee and delivered to the plaintiff for a valuable consideration, before said note became due and payable, and shall find that said plaintiff at the time it acquired said note had no notice of any fraud in the obtention of said note, or of any failure of consideration therein, then the plaintiff is entitled to recover the full amount of said note, less \\u2022certain credits. The prayer thus concluded\\u2014\\\"and there is no evidence in this case legally sufficient from which they can find that the plaintiff had any knowledge or notice of fraud, or want or failure of consideration in the making of said note.\\\" The fourth prayer of the defendants, which was also granted, embodies in it the general and well settled doctrine applicable to negotiable paper, that if there is fraud in the origin of the note the burden of proof is upon the holder to show that it qame to him before maturity in good faith for value and without notice of any infirmity or defect in- the title of the persons who transferred it to him. But in addition to the assertion of this general proposition the jury are informed that, \\\"unless they believe from the evidence that said note was thus acquired by the plaintiff their verdict should be for the defendants.\\\" It seems to us, in spite of the ingenious argument of the able counsel for the defendants to the contrary, that there is a direct and palpable conflict between these two instructions. By the first the jury are told that they cannot in this case find that the plaintiff had any knowledge 'or notice of fraud or failure of consideration in the making said note, while by the other they are permitted, if they will, to find from the same evidence that the plaintiff did not obtain the note in good faith. In other words while they are told there is no legal evidence of knowl edge or notice of fraud, they may yet find in point of fact that the note was not obtained in good faith. It is difficult indeed to understand how the holder of commercial paper can take it in good faith, without notice of defects in title and without knowledge of fraud, and at the same time be in a position to have his good faith in the transaction questioned. This is what the fourth prayer in our opinion allows the jury to do. It is most desirable, if possible, to free a practical question like this from fine distinctions, and we think the decisions of this Court have shown a strong tendency in that direction. Thus in the leading case of Totten v. Buey, 57 Md. 446, the former learned Chief Justice of this Court said : \\\"The question is not what facts will or will not be sufficient to put the party on inquiry, but the question whether the party had knowledge of the infirmity of the note at the time of the transfer to him; or in other words, whether he procured the note in good faith for valuable consideration.\\\" Maitland v. Bank, 40 Md. 568; Bank v. Hooper, 47 Md. 88; Williams v. Huntington, 68 Md. 590-601. And so in the case last cited the present Chief Justice quotes the language of Judge Alvey with approval and says : \\\"The question is one of fraud or bad faith on the part of the taker of the note.\\\" In Cheever v. Pittsburg R. R. Co., 150 N. Y. 65-67.it is said: \\\"The rights of the holder are to be determined by the simple test of honesty and good faith and not by a speculative issue as to his diligence or negligence. \\\" Equally clear, simple and broad is the rule expressed in sec. 75, of Art. 1 3 (our Negotiable Instruments Act), by which, of course, we must be governed. The notice, that section provides, which will prevent a holder of a note from recovering is \\\"actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.\\\" But the prayers in question, as we have seen, after telling the jury in the first that there is no legally sufficient evidence of any knowledge or notice of fraud in the making of the note, allowed them by the fourth to find, either that the plaintiff was not a holder in good faith before maturity, or, second, that it had notice of infirmity or defect in the title of its endorser. The jury could under this prayer have found, and perhaps they did find, that in spite of the fact there was no legally sufficient evidence of knowledge or notice of fraud in the making of the note, yet that the evidence before them justified them in finding the plaintiff was not a holder in good faith because it had notice of some defect or infirmity in the title of its endorser growing out of the worthlessness of the animal purchased by the defendants. It is clear, however, that by the first prayer they were in effect told there was no legally sufficient evidence of knowledge or notice of any such failure of consideration, but if under any-theory of the case, such a prayer as the defendant's fourth could have been properly granted, submitting to the jury the question whether the plaintiff acquired the note in good faith for value before maturity and without notice, &c., then it was error to have rejected the plaintiff's third and fourth prayers based upon the theory that mere suspicion of defect of title or knowledge of circumstances .which would excite such suspicion in the mind-of a prudent man, or gross negligence on-the part of the taker of the note at the time of transfer, will not defeat his title.\\\" Williams v. Huntington, supra.. We think, moreover, that if the Court could be justified by the facts of the case in granting a prayer like the defendants' fourth, it was error under the facts of this case to refuse the plaintiff's, sixth, by which the Court was asked to instruct the jury that if they should find that at the time the plaintiff acquired the note it had no notice of any fraud in the obtention of said note, or any failure of consideration, other than the note itself showed, the plaintiff was entitled to- recover. In other words', such an instruction would have been equivalent to a declaration by the-Court that if the endorsements on the paper were the only suspicious circumstance, or the only evidence to show knowledge of fraud, then such circumstance or evidence was not legally sufficient to show bad faith and to prevent a recovery' by the plaintiff. It does appear that even if suspicion had been aroused by seeing the endorsements upon the notes and the plaintiff or its officers had made inquiry that any evidence. of the fraud or failure of consideration or defect in title would or could have been discovered. It does appear however from the evidence that Mr. E. L. Coblentz, one of the officers of the plaintiff, made inquiry from the agent of the payee as to the meaning of the endorsements on the note and he' was informed what the circumstances were. The fraud was not thus disclosed, nor could it have been discovered by inquiry from the makers themselves, who were then ignorant of the trick that had been played upon them by foisting upon them an animal totally unfit for the purpose for which he was purchased. Can we reasonably impute bad faith to the plaintiff merely because its officers saw the endorsements on the paper? If not, then, when the question of good faith or knowledge of fraud is submitted to the jury, the plaintiff was entitled to an instruction like its sixth prayer. Thus in Hamilton v. Vought, 34 N. J. Law, 187, the Court say: \\\"When mala fides is the point of inquiry, suspicious circumstances must be of a substantial character, and if such circumstances do not appear, the Court should arrest the inquiry. Under the former practice, circumstances of slight suspicion would take the case to the jury; under the present rule the circumstances must be strong, so that bad faith may be reasonably inferred.\\\" And again the Court of Appeals of New York in Cheever v. Pittsburg R. R. Co., supra, declares: \\\"The holder's right cannot be defeated without proof of actual notice of the defect in title or bad faith on his part evidenced by circumstances.\\\" This is but the declaration of the same rule set forth in in the 75th section of Article 13 of our Code, and the same general principle which we have already said has been announced in Totten v. Bucey and Williams v. Huntington, supra.\\nIn conclusion we will indicate specifically the result of the foregoing considerations.\\nPlaintiff's First Bill of Exceptions.\\u2014This exception related to the refusal of the Court to allow the witness Coblentz h> answer the question whether the plaintiff bank at the time it received the note sued on had any knowledge of fraud or failure of consideration in said note ? By the action of the Court in granting plaintiff's first prayer this exception became unimportant, and it was abandoned at the hearing.\\nPlaintiff's second and last bill of exceptions relates to the action of the Court in granting defendants' fourth prayer and refusing plaintiff's second, third, fourth, fifth and sixth prayers.\\nIt follows from what we have said there was error in granting defendants' fourth, and in refusing to grant plaintiff's third, fourth and sixth, if under the facts of the case the defendants' fourth could have been properly granted. Plaintiff's fifth submits to jury the question of the knowledge of fraud and failure of consideration, &c., but this question was withdrawn from the jury and the prayer was properly rejected.\\nThe defendants' first bill of exception we have already considered. It related to the effect of the release of Dr. Downey. Defendants' second bill of exception related to the prayer they offered at close of plaintiff's case. This exception was waived. Defendants' third bill of exception related to the exclusion of certain testimony which was supplied by other witnesses.\\nThe fourth bill of exception of defendants' was taken to refusal to allow several witnesses to testify in reference to certain dealings had by them in relation to the note sued on, but counsel refused to offer to show that the plaintiff had notice of these transactions. We think clearly there was no error in this ruling.\\nDefendants' fifth bill of exceptions. This exception calls in question the rulings upon the prayers, namely the granting of the plaintiff's first and the rejection of the defendants' prayers with the exception of the fourth which was granted.\\nFrom what we have already said it will be seen that we are of opinion that the first prayer of the plaintiff was as the case is now presented properly granted. It also, of course, follows from what we have said that defendants' first asking to take the case from the jury and for verdict for the defendants was properly refused. Defendants' second was necessarily refused, if the plaintiff's first could have been properly granted, and we have said it should have been granted. Defendants' third relates to the release and as we have said was properly refused.\\n(Decided June 30th, 1903.)\\nDefendants' fifth was properly refused because it submitted to the jury the question whether the plaintiff took the note with knowledge of fraud and they were instructed properly as we hold by plaintiff's first that there was no legally sufficient evidence of such knowledge. The defendants' sixth and seventh presented the question as to the legal effect of the release of Dr. Downey which we have already considered. Defendants' eighth prayer was, we think, properly rejected, if for no other reason because there was no evidence that the signature of Hobbs to the notes was a condition precedent to the liability of the defendants thereon. Some of the witnesses testified that the understanding was that all who signed the subscription papers were to sign the notes, and others testified their understanding was that they could pay in cash or give notes; but their is nothing either in the testimony or the contract of subscription that there was to be no liability unless all signed the notes.\\nBy reason of the errors indicated the judgment will be reversed and new trial awarded.\\nJtidgment reversed with costs and new trial awarded.\"}"
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+"{\"id\": \"2089265\", \"name\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. ALICE B. STRATHEN et al.\", \"name_abbreviation\": \"Attorney Grievance Commission v. Strathen\", \"decision_date\": \"1980-02-13\", \"docket_number\": \"No. 46\", \"first_page\": \"111\", \"last_page\": \"120\", \"citations\": \"287 Md. 111\", \"volume\": \"287\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:49:54.383848+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. ALICE B. STRATHEN et al.\", \"head_matter\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. ALICE B. STRATHEN et al.\\n[No. 46,\\nSeptember Term, 1979.]\\nDecided February 13, 1980.\\nThe cause was argued before Murphy, C. J., and Smith, Digges, Eldridge, Orth, Cole and Davidson, JJ.\\nL. Hollingsworth Pittman, Bar Counsel, with whom was James A. Frost, Assistant Bar Counsel, on the brief, for appellant.\\nJohn T. Brooks, with whom were Paul A. Gibbons and Fine & Klauber on the brief, for Gerald N. Klauber, Paul A. Gibbons and Fine & Klauber, P.A., part of appellees. No brief filed on behalf of other appellee.\", \"word_count\": \"2848\", \"char_count\": \"18060\", \"text\": \"Murphy, C. J.,\\ndelivered the opinion of the Court.\\nThis case draws into question the \\\"confidentiality\\\" provisions of Subtitle BV of the Maryland Rules of Practice and Procedure (Discipline and Inactive Status of Attorneys). More particularly, we are required to determine whether Rule BV8 prohibits a judicial tribunal from ordering that testimony taken at an attorney disciplinary hearing before a lawyer Inquiry Panel be produced for use at the trial of a civil malpractice action subsequently filed by the complainant against the attorney in the attorney disciplinary proceeding.\\nThe BV Rules, initially adopted by the Court in 1965, were completely revised in 1975 as a result of a study conducted by a special committee of the Maryland State Bar Association. Rule BV2 now provides for the creation of the Attorney Grievance Commission of Maryland (the Commission), whose members are appointed by the Court. The Commission is vested with authority to \\\"supervise and administer the discipline and inactive status of attorneys in accordance with this subtitle.\\\" The Commission appoints attorneys to serve as members of an Inquiry Committee and upon a Review Board (Rule BV3). It also appoints Bar Counsel who functions as \\\"the principal executive officer of the disciplinary system\\\" (Rule BV4). Under Rule BV6, every complaint that an attorney has committed an act of misconduct or that he is incompetent is required to be filed with and investigated by Bar Counsel, who may subsequently refer the complaint to an Inquiry Panel for a hearing. The review procedure is contained in Rule BY7, provision there being made authorizing the Review Board to approve, reject or modify Inquiry Panel recommendations, remand for further proceedings, dismiss the complaint, or reprimand the attorney. Rule BV9 provides that disciplinary charges against an attorney shall be filed in the Court of Appeals at the direction of the Review Board and on behalf of the Commission.\\nRule BV8, entitled \\\"Confidentiality,\\\" provides in part:\\n\\\"a. General Rule.\\nThere may be no public proceedings by the Inquiry Committee or the Review Board. Unless otherwise ordered by the [Attorney Grievance] Commission, the record of any complaint, investigation, proceeding of the Inquiry Committee or the Review Board and of any reprimand shall be private and confidential, unless and until charges arising out of the proceeding shall be filed in the Court of Appeals, except as provided in this Rule.\\nb. Exceptions.\\nThe following exceptions to privacy and confidentiality are hereby established:\\n(3) A judicial tribunal may request and receive any information that is relevant to the business of the tribunal.\\\"\\n(1)\\nThe facts relevant to a determination of the issue before us disclose that Alice Strathen filed a complaint with Bar Counsel against attorney Gerald Klauber, claiming that he incompetently represented her in a legal matter. A hearing was held on the complaint before an Inquiry Panel, pursuant to Rule BV6, at which time Mrs. Strathen testified. The matter was subsequently considered by the Review Board, which issued a reprimand under Rule BV7.\\nMrs. Strathen thereafter filed a civil suit in the Circuit Court for Howard County, asserting a claim of legal malpractice against Klauber and another member of the firm of Fine & Klauber, P.A. Klauber filed a motion for the production by the Attorney Grievance Commission of the transcript of testimony taken before the Inquiry Panel. The motion, alleged that Mrs. Strathen's testimony before the Inquiry Panel \\\"is relevant to the pending civil malpractice case and for proper discovery and preparation for said proceeding.\\\" Mrs. Strathen opposed Klauber's motion on the ground that production of the transcript \\\"should never be allowed to become a vehicle for discovery in an action for malpractice against an attorney, or in any other type of action.\\\" She said that to permit production would violate the confidentiality provisions of Rule BV8, no basis being shown \\\"for violating the strong public policy set forth in the Maryland Rule that the records of the Commission shall be private and confidential.\\\"\\nThe Commission was permitted to intervene in the proceedings for the limited purpose of opposing Klauber's motion. It contended that the circuit court had no jurisdiction over the Commission or the attorney disciplinary system because they were creatures of the Court of Appeals of Maryland and subject only to its control and direction. As a consequence, the Commission claimed that the circuit court had no authority to order it to produce the Inquiry Panel transcript. The Commission maintained that to permit the production of confidential Inquiry Panel transcripts would cause the disciplinary system to become a \\\"discovery vehicle\\\" and might encourage the filing of unfounded complaints for discovery purposes alone. The Commission argued that to grant Klauber's motion to produce \\\"would be disastrous to the Disciplinary System and could strip it of the protection that it affords the complainant, as well as the respondent, and might, eventually, strip those filing honest but unfounded complaints of their immunity from libel, slander and defamation suits by wronged attorneys.\\\"\\nNoting the exception to the general rule of privacy and confidentiality of Inquiry Panel proceedings contained in Rule BV8 b 3, the court (Fischer, J.) held that the Circuit Court for Howard County qualified as a \\\"judicial tribunal\\\" under the rule authorized to \\\"request and receive [from the Commission] any information that is relevant to the business of the tribunal.\\\" The court said that the issue in the civil malpractice suit was similar to that involved before the Inquiry Panel. Since both matters concerned Klauber's representation of Mrs. Strathen, the court said that Mrs. Strathen's testimony in the disciplinary proceeding \\\"should be useful and possibly essential in cross examining her testimony in the present proceeding.\\\" The court held that Mrs. Strathen's testimony before the Inquiry Panel was relevant to the business of the court within the contemplation of Rule BV8 b 3.\\nThe court found no merit in the Commission's suggestion that Mrs. Strathen's testimony before the Inquiry Panel should be kept secret for reasons identical to those which insulate grand jury transcripts from public disclosure. It said that grand jury secrecy is required not for the protection of a person ultimately indicted, but rather for the protection of the grand jury itself, the witnesses before the grand jury, and persons who come under suspicion but are ultimately not indicted. The court applied these principles and said that to keep Mrs. Strathen's testimony secret would not protect the Inquiry Panel, Mrs. Strathen or Klauber. The court stated that Mrs. Strathen's testimony was within the exception to the general grand jury secrecy rule and that her testimony should be disclosed for the purpose of impeachment and cross-examination. The court concluded:\\n\\\"[T]he principle is that grand jury secrecy and attorney grievance committee secrecy are not absolute, and may be breached under compelling circumstances when the need for the breach is demonstrated with particularity. The Court is thus given the delicate task of balancing the policy which requires secrecy for the proceedings of the Attorney Grievance Committee with the policy which requires that there be full disclosure of all available evidence in order that the ends of justice may be served.\\\"\\nFinding that Klauber demonstrated a need for Mrs. Strathen's testimony to \\\"effectively impeach or cross-examine Mrs. Strathen,\\\" the court said:\\n\\\"Without this prior testimony the defendants would be substantially hampered in their defense and the Court would be ruling upon the matter without all the available evidence.\\\"\\nThe court directed that the Commission produce Mrs. Strathen's testimony before the Inquiry Panel. At Mrs. Strathen's request, the court directed the Commission to produce Klauber's Inquiry Panel testimony, as well as the testimony of the other lawyer member of Klauber's firm sued by Mrs. Strathen. This appeal followed.\\n(2)\\nAttorney disciplinary proceedings before an Inquiry Panel upon a complaint that an attorney has committed an act of misconduct are similar in purpose to the accusatory proceedings conducted by a grand jury. See Attorney Griev. Comm'n v. McBurney 282 Md. 116, 383 A.2d 58 (1978). It is true, of course, that in a proper case an accused may, at trial, be afforded access to grand jury minutes for purposes of cross-examination or impeachment if he demonstrates a \\\"particularized need\\\" for disclosure. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979); Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966); Silbert v. State, 12 Md. App. 516, 280 A.2d 55 (1971). The question before us, however, is not whether it is in the interest of justice that testimony before an Inquiry Panel be made public for reasons similar to those justifying disclosure of grand jury minutes. Rather, the issue is whether, in the circumstances of this case, Rule BV8 mandates the confidentiality of such testimony. By its express terms, the rule inhibits disclosure of the record of Inquiry Panel proceedings until and unless charges are filed in this Court, unless \\\"otherwise ordered\\\" by the Commission in the exercise of its discretion. Since charges were never filed with the Court, and since the Commission did not authorize disclosure, one of the limited exceptions to confidentiality contained in subsection b of the rule must be applicable before the circuit court could properly order that the Inquiry Panel testimony be produced. We think the limited exception of Rule BY8 b 3 authorizing a \\\"judicial tribunal\\\" to \\\"request and receive any information that is relevant to the business of the tribunal\\\" is applicable in this case and was properly invoked by the lower court.\\nThe \\\"judicial tribunal\\\" exception to confidentiality first appeared in the original version of the BY Rules adopted by the Court in 1965, authorizing investigation by bar association committees of complaints filed against attorneys. Rule BV2 e then provided that a record of any attorney disciplinary proceedings would be confidential, until charges arising out of the proceeding were filed in court. Subsection d provided that where a bar association issued a reprimand, a permanent record thereof would be kept which would be confidential \\\"except that on request of (i) a judicial tribunal where the information is relevant to the business of such tribunal,\\\" disclosure could be made to the judicial tribunal. A judicial tribunal was broadly defined in the rule to encompass courts of general trial and appellate jurisdiction in Maryland and throughout the country, as well as the federal courts.\\nRule BV2 was extensively amended, effective July 1,1973, to provide that the record of any disciplinary proceedings of a bar association committee, and of any reprimand, shall be private and confidential, \\\"unless and until charges arising out of the proceeding shall be filed in court, except as otherwise ordered by the Court of Appeals and except as hereinafter provided.\\\" Six limited exceptions to confidentiality were thereafter set forth, one of which was that a judicial tribunal \\\"may request and receive such information where it is relevant to the business of such tribunal.\\\"\\nIn its 1974 report, the special committee of the Maryland State Bar Association recommended a complete revision of the BV Rules. The only exceptions to confidentiality of attorney disciplinary proceedings contained in the committee's recommendation were set forth in its proposed Rule BY8, i.e., that \\\"Except as provided by [Attorney Grievance] Commission Rule, the record of any complaint, investigation, proceeding of the Inquiry Committee or the Review Board and of any reprimand shall be private and confidential, unless and until charges arising out of the proceeding shall be filed in the Court of Appeals.\\\" As ultimately adopted by the Court of 1975, however, provision was made for limited exceptions now contained in Rule BV8 b, which included in subsection b 3 the exception authorizing disclosure to a judicial tribunal if \\\"relevant to the business of the tribunal.\\\" A \\\"judicial tribunal\\\" was defined in Rule BV1 i to mean:\\n\\\"a court, the District Court of Maryland, the Court of Appeals, the Court of Special Appeals, any United States Court and a court of another state having general or appellate jurisdiction.\\\"\\nThat the circuit court is encompassed within the meaning of a \\\"judicial tribunal\\\" is manifest from the definitional provisions contained in Maryland Rule 5 i.\\nThe proper exercise of a court's adjudicatory responsibilities is the essence of its \\\"business\\\" and where information contained in the record of an Inquiry Panel proceeding is relevant to that function, we think the court is authorized to order disclosure, for cross-examination and impeachment purposes, under the limited exception contained in Rule BV8 b 3. In this regard, a finding of relevance does not require a determination, as made by the trial judge in this case, that the need for the testimony outweighed the public interest in keeping attorney disciplinary proceedings private and confidential. In other words, the more stringent \\\"particularized need\\\" test applied in the grand jury cases is not the measure of relevance under Rule BV8 b 3. In directing limited disclosure of relevant testimony adduced at the Inquiry Panel hearing, the trial court was simply exercising authority expressly vested in it under rules adopted by this Court.\\nWe think the Commission exaggerates the consequences of this interpretation of the \\\"judicial tribunal\\\" exception to confidentiality, particularly so in this case. The confidentiality provisions of the rule are primarily aimed at the protection of an accused attorney, against whom no charges have been filed, rather than to benefit the complainant or to protect the integrity of the Inquiry Panel proceeding itself. See, e.g., Sadler v. Oregon State Bar, 275 Or. 279,550 P.2d 1218 (1976). It is the accused attorney here who seeks public disclosure of the complainant's testimony and in these circumstances the Commission's concern with preventing release of the information or in maintaining the secrecy of the Inquiry Panel proceeding is difficult to understand. Indeed, it is likely that the original complaint against Klauber was made with the expectation that it would ultimately be made public, since the objective of the complainant is usually to secure the placement of disciplinary charges against the accused attorney.\\nLimitations upon the public disclosure of attorney disciplinary records and proceedings are generally controlled by rules and statutes in force in most jurisdictions; they contain a variety of exceptions to confidentiality similar to those found in Rule BV8. See generally Annot., Restricting Access to Records of Disciplinary Proceedings Against Attorneys, 83 A.L.R.3d 749 (1978); Annot., Discovery or Inspection of State Bar Records of Complaints Against or Investigations of Attorneys, 83 A.L.R.3d 777 (1978); American Bar Association Standards for Lawyer Discipline and Disability Proceedings, adopted February 13, 1979, Standards 3.12-3.16. As the judicial tribunal exception was properly invoked in this case, we shall sustain the lower court's action.\\nOrder affirmed with costs.\\n. The other exceptions to privacy and confidentiality set forth in subsection b of Rule BV8 are as follows:\\n\\\"(1) With the approval of the Chairman or in his absence the Vice-Chairman of the Commission the Bar Counsel may provide information involving criminal activity to law enforcement and prosecuting officials.\\n(2) The notification to a complainant by the Bar Counsel of the disposition of the complaint of that complainant is not private and confidential.\\n(3) .\\n(4) If an attorney is seeking admission to the practice of law before the bar of any judicial tribunal, or is under consideration for judicial office or for employment in legal work by federal, state or local government, a judicial tribunal, the appropriate committee of a Bar Association, tne National Conference of Bar Examiners, a judicial nominating commission acting through its chairman or the appointing or hiring authority acting through its duly appointed representatives may receive information concerning reprimands and charges not having resulted in dismissal.\\n(5) The fact that a complaint is pending may be revealed to a person authorized under subsection (4). However, the nature of the pending complaint, the facts surrounding it, and the results of any investigation completed to the date of the inquiry, may be revealed only pursuant to a waiver by the attorney involved.\\n(6) The Bar Counsel may from time to time prepare and publish summaries of complaints without revealing identities of complainants, attorneys or witnesses where in nis judgment the publication would tend to improve the administration of justice.\\n(7) If an attorney is accused of misconduct, the Commission may issue a short written statement of clarification, correction, or exoneration, or it may announce that a reprimand has been administered, if the attorney requests that the statement be issued.\\\"\\n. The term \\\"court\\\" in the 1965 rules meant \\\"the circuit court for a county, and the Supreme Bench of Baltimore City.\\\" Rule BV1 e.\"}"
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+"{\"id\": \"2103034\", \"name\": \"THE CHESAPEAKE BEACH RAILWAY COMPANY vs. THOMAS DONAHUE\", \"name_abbreviation\": \"Chesapeake Beach Railway Co. v. Donahue\", \"decision_date\": \"1908-01-07\", \"docket_number\": \"\", \"first_page\": \"119\", \"last_page\": \"129\", \"citations\": \"107 Md. 119\", \"volume\": \"107\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:48:37.886592+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Boyd, C. J., Briscoe, Pearce, Schmucker, Burke, Thomas and Worthington, JJ,\", \"parties\": \"THE CHESAPEAKE BEACH RAILWAY COMPANY vs. THOMAS DONAHUE.\", \"head_matter\": \"THE CHESAPEAKE BEACH RAILWAY COMPANY vs. THOMAS DONAHUE.\\nNegligence \\u2014 Injury to Trespasser Walking on Railway Track \\u2014 Evidence \\u2014 Contradicting Witness.\\nPlaintiff was walking on the main track of the defendant railway company near a station in the country, where he was a trespasser, on a dark night, when he was struck by a train coming from behind and one of his feet was cut off. He lived in the neighborhood, was well acquainted with the locality and knew that a train was due to pass at about that time. If he had looked behind him he could have seen or heard the approaching train. He had been previously warned by an officer oft the defendant company to keep off the tracks. The evidence was con- flirting as to whether a bell or whistle was sounded as the train approached. There was testimony that the plaintiff had been more or less under the influence of liquor on the day in question. There was no evidence that those in charge of the engine saw the plaintiff\\u2019s peril in time to avoid the accident. In an action to recover damages for such injury, held, that the jury shonld be instructed that the plaintiff is not entitled to recover.\\nMere acquiesence by a railway company in the occasional use of its track as a foot-path by residents in the vicinity does not impose on the company any duty to guard against accidents to such persons greater than its duty in that respect towards other trespassers.\\nThe fact that a railway train did not comply with the- provisions of the statute relating to its stopping at the station for the convenience of passengers is not material when the question is whether an injury to a trespasser walking on the track near such station and struck by the train, was caused by. the railway company\\u2019s negligence or not.\\nA witness may be asked whether he had made a certain statement to third parties for the purpose of contradicting him by evidence that he did make such statement and thus impeach his credit. But the testimony contradicting the witness is not evidence to show that the statement made by him was true.\\nDecided January 7th, 1908.\\nAppeal from the Circuit Court for Prince George\\u2019s County (Merrick, J.), where there was a judgment for the plaintiff for $6,ooo.\\nThe cause was argued before Boyd, C. J., Briscoe, Pearce, Schmucker, Burke, Thomas and Worthington, JJ,\\nF. D. Me Kenney and Wm. Hits (with whom were C. C. Magruder and J. S. Flannery on the brief), for the appellant.\\n. R. H. McNeill and Geo. B. Merrick, for the appellee.\", \"word_count\": \"3980\", \"char_count\": \"21494\", \"text\": \"Schmucker, J.,\\ndelivered the opinion of the Court.\\nThe appellee, Thomas Donahue, while walking along the railroad track of the appellant company in Prince George's County was struck and injured by one of its trains. He sued the company in the Circuit Court of that county for damages' resulting from his injury, and recovered the judgment from which the present appeal was taken.\\nThe record contains eleven bills of exceptions of which eight relate to rulings on the admissibility of evidence, two to the Court's action on the prayers and one to its refusal to grant a motion in the nature of a prayer asking the case be taken from the jury for want of legally sufficient evidence to justify a verdict for the plaintiff. The record in the case is unduly voluminous containing not only all of the testimony taken in the case, instead of so much only of it as is necessary to explain the bearing of the rulings upon the issues and questions involved, but also a full report of an almost continuous colloquy which ensued between the opposing counsel or between * them and the trial Judge, during the week or more consumed in the trial below. It is stated in the appellant's brief that exception was taken by the defendant to some of the remarks made by the trial Judge to the jury when the case was given to them, but; as no bill of exceptions founded thereon appears in the record, the question of the propriety of the remarks is not presented for our consideration.\\nIt appears from the evidence that the appellant company owns and operates a steam railroad, extending from the District of Columbia through Prince George's and Calvert Counties to Chesapeake Beach. The operating yards of the road extend from the District line about three-quarters of a mile to-a point in Prince George's County known as Seat Pleasant, where a round-house, water tank and other operating structures are located. The appellee, Donahue, is a truck farmer, about thirty years old, who has resided all of his life in the vicinity of Seat Pleasant, and was quite familiar with the locus in quo of the accident at the time of its occurrence. On November 22nd, 1905, after spending the day in Washington, he started at about six o'clock in the evening to walk on the main track of the defendant's railroad from the District line to his home. The night was a dark one with no moon shining. When he had reached a point nearly abreast of the round-house a regular daily passenger train coming from Washington about fifteen minutes behind its schedule time, at a speed of from 20 to 25 miles an hour, overtook him from behind and struck him and cut off one of his feet. The accident occurred on a slight curve in the track, but beyond the. curve looking toward Washington the track ran almost in a straight line for 500 yards. A number of empty passenger cars were standing on a side track near the round-house; but not in such a position as to intercept the view of the place of the accident to one coming down the track from Washington.\\nThere is evidence in the record tending to show that many persons had been in the habit of walking from the District line to their homes over this part of the railroad track ever since its construction in 1899, and that, although there was no depot building or platform there, Seat Pleasant appeared among the names of the stations upon the time tables of the appellant and its passenger trains occasionally stopped there to take on or let off passengers, and that the trains were accustomed to ring a-bell and blow a whistle as they approached the place. There is also evidence tending to show that pedestrians were in the habit of crossing the railroad tracks at a place quite near the locality of the accident and that there was a board there across the ditch running along the side of track. There is also evidence tending to show that Donahue had been, seen very many times on the company's tracks by its superintendent and had been warned by him on different occasions to keep off of them.\\nThe plaintiff put in evidence at the trial sec. 26 of Art. 23 of the Code of Public General Laws, which requires all railway trains to entirely stop for one-half a minute at each station advertised by the railroad company as one for receiving passengers upon such train, and imposes a penalty for a failure to comply with its provisions.\\nDonahue as a witness on his own behalf gave the following account of the accident. \\\"The train struck me just as I was coming to the board. There was a board on the side where the people walk. They get off and they start to walk up on the side of the track next to Mr. Lacey's place. Before I got to this board the engine struck me. I heard the rattle of it behind me, about four or five yards behind me, and I saw the light flash in front of me. Some one in the cab of the engine \\u2014I judge it was in the cab of the engine hollered to me when the engine was on top of me to get out of the way. At that time I jumped across the track as quick as I could and I hung my foot and the engine went over it.\\\" In the following extract from his cross examination he gives further details of the occurrence.\\n\\\"Q. Mr. Donahue, you say that somebody called to you from this cab?\\n\\\"A. Yes, sir.\\n\\\"Q. When?\\n\\\"A. It was from the cab. The sound came from the cab.\\n\\\"Q. Where were you then?\\n\\\"A. Where were I?\\n\\\"Q. Yes.\\n\\\"A. On the track going home, near the place where I was struck.\\n\\\"Q. When did you first hear the train?\\n\\\"A. When it was about four or five yards from me, I saw the light flash in front of me, and heard the rattle behind me. In the meantime some one hollered to me from the cab of the engine.\\n\\\"Q. Was the first intimation you had that this train was there gotten from this call to you? Was that the first you knew of it?\\n\\\"A. Yes, sir. When I heard the rattle of it behind me, and saw the light flash in front of me, at that time I jumped off the track as quick as I could, and some one in the cab of the engine hollered to me to get out of the way.\\n\\\"Q. Where were you when you first heard the rattle?\\n\\\"A. Right near the place where I was struck.\\n\\\"Q. How near?\\n\\\"A. I could n't give the whole space. When I heard the rattle of it I got off as quick as I could. It was right at the place, I might say.\\n\\\"Q. How long was it after you heard the rattle before you heard this call?\\n\\\"A. Right at the same time. At the time I threw myself off the track I heard some one up in the cab of the engine \\u2014 I judge it was the cab of the engine; the sound came from there \\u2014to get out of the way.\\n\\\"Q. You say you can stay at your house and hear the whistle blow at Marlboro?\\n\\\"A. I judge it was at Marlboro, from the time it runs to my house.\\n\\\"Q. Can you stay at your house and hear the engine puff at the District line?\\n\\\"A. Yes, sir; I judge about that. Sometimes it starts out with a puff.\\\"\\nDonahue also testified that when the accident happened he was not intoxicated, but had full possession of his senses and would have gotten off the track if he had heard the. train in time. He further stated in his testimony that no whistle was blown nor bell rung from the engine before it struck him. Several other witnesses who were near the scene of the accident testified that they heard neither bell nor. whistle from the approaching train, although they felt sure they would have heard them if they had been sounded. On the contrary the engineer and fireman of the train both testified that, the bell was rung and the whistle blown in the usual manner on approaching Seat Pleasant on that evening. Love Williams and Garner Randall, two acquaintances of Donahue, who also resided near Seat Pleasant, testified for the plaintiff that they were walking home together from the District line on the railroad track about 7 5 yards behind him on the evening of the accident. They both heard the train running and puffing behind them and one of them heard the engine bell ringing, and they stepped from the track and allowed it to pass them. They heard Donahue's cries when he was injured and hastened to his relief. Randall said that Donahue when they came up to him did not talk like a drunken man. Williams said that Donahue had been drinking but he could not \\\"tell just whether he was sober or not,\\\" he had sense enough to tell Williams what to do. Witness further said that when he came up to Donahue there was a bottle of whiskey \\\"setting there\\\" and he asked Donahue what he was doing with a bottle there and Donahue replied \\\"Love take it away and drink it or break it to pieces or do what you chose with it \\u2014 I don't want it any more as long as I live.\\\" Donahue himself testified that he had not taken more than two drinks, one of whiskey and one of beer, during the day and further said that the bot- tie of whiskey which he gave to Love Williams after the accident had not been opened, but each one of the three other witnesses testified to having seen Donahue drunk in Washington between four and five o'clock on the afternoon of the day on which he was injured.\\nIt is apparent from the testimony to which we have adverted, coming from the plaintiff's own witnesses, that on the night on which he was injured he deliberately started to walk for the distance of nearly a mile- on the main track of the railroad at a time when he must from his familiarity with the situation have known that a train was about due without first ascertaining whether the train had in fact passed by. He continued to walk upon the track until he had almost completed his intended journey without, so far as the record shows, observing any precautions to protect himself from approaching trains, although an occasional turning round and looking and listening would have revealed to him the sound of the coming train or the glare of its headlight in time to save himself from harm. Furthermore he thus went and remained upon the track, whose rails were a constant signal of danger to him, for his own convenience and not for the purpose of any business with the railroad company. Under the well settled law of this State such conduct constitutes negligence per se, and if a person while so acting is injured by a passing train he will be presumed to have contributed to the occurence of the accident and unless that presumption be overcome he cannot recover for the injury. This is especially true where the injured party is, as in the present case, a deliberate trespasser upon the railroad tracks when injured.\\nIn State, use of Bacon v. Balto. & Pot. R. R. Co., 58 Md. 482, the suit was instituted to recover damages for the killing by a railroad train of a man who was walking upon the - track at night. In that case as in the one before us the man had lived for several years near the track and was familiar with the running of the trains, and the train which killed him was a regular passenger train running a little late. In the opinion in that case this Court, speaking through the late Chief Judcje Alvey, said: \\\"Repeating here substantially what has been said and held in previous cases, the deceased was at the time of the accident on the private right of way of the defendant, where he had no right to be. But, aside from this fact, the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking proper precautions for his own safety. Negligence of the defendant's employees in these particulars was no excuse for negligence on his part. He was bound to listen and to look while walking along the railroad track, in order to avoid an approaching train, and not to walk carelessly into a place of possible danger. Had he used his senses, he could not have failed both to hear and to see the train which was approaching; and having failed to observe the proper precautions, there is no right of action against the defendant for the consequences of the accident. N. C. R. Co. v. Burns, 54 Md. 113; B. & P. R. Co. v. Stansbury, Id. 648; Railroad Co., v. Houston, 95 U. S. 702.\\\"\\nAgain in Westn. Md. R. R. Co. v. State, use of Kehoe, 83 Md. 434, where the plaintiff, who had been drinking freely, attempted to cross the railroad tracks at night, near to but not upon a public crossing and was run over by a moving car and had one of his legs cut off, this Court in reversing the judg-. ment of the lower Court said, speaking through the late Chief Judge McSherry, \\\"As no one has a right to be negligently or wrongfully on a railroad track, the company owes no duty to a person so situated to anticipate that he will be in such a position; but if its servants see him in a place of peril, though he be wrongfully or negligently there, then the duty arises to avoid injuring him if possible. The duty which the company owes to such person originates only when the perilous position is seen or known by the company's servants. When, therefore, a plaintiff is wrongfully or negligently on the back's of a railroad i\\u00f1 a position .of peril, as the prayer we are considering assumes was the fact in the case at bar, the duty of the company to use due care to avoid injuring him arises at the moment the servants of the company see and become aware of his peril; and hence, to sustain this branch of the prayer, it was essential for him to show, first, that the company's servants had knowledge of his peril; secondly, that they had that knowledge in time to arrest an injury; and, third, that they failed to exert proper care to avoid the injury after acquiring knowledge of the peril. Until the employees are made aware of the peril arising from an act of negligence on the part of the plaintiff, they are under no obligation to assume that he will be negligent or will be in a dangerous place which he has no right to occupy; and consequently they owe him no duty to anticipate that he will be where he ought not to be, or to guard in advance against the possible or even probable results of his unknown wrongful occupancy of the tracks; and as they owe him no such duty, their failure to perform it is not an act of negligence on the part of the company.\\\"\\nAnd in the more recent case of Garvick v. United Railways Co., 101 Md. 246, we said: \\\"It is settled, in this State at least, and generally, that where a party is discovered on a track of a railroad in the full power of locomotion and no impediment t\\u00f3 his escape, those on the train may well act on the assumption that he will use his senses for his protection and get out of the way of danger before he is struck. State, use of Schroeder v. B. & O. R. R. Co., 69 Md. 558; State, use of Savington v. B. & O. R. R. Co., 71 Md. 595; Enger v. United Rys., 98 Md. 400.\\\"\\nThe appellee would not have been relieved from the results of his own negligence if the jury-had found from the evidence that there was a public crossing and a railway station within a few yards of the place where he was injured; for even if he had a right to be upon the tracks in the act of crossing the railway or going to its station he had no right to use them for the totally different purpose of walking along them with no intention of embarking on a train as he was doing when he was injured. For the same reason he is not entitled to invoke in extenuation of his own negligence the failure of the company, if any such there were, to comply with the provisions of sec. 26 of Art. 23 of the Code, relating to the stoppage of railway trains at stations for the purpose of taking on passengers.\\nThe record does not furnish any legally sufficient evidence from which the jury could have found that those in charge of the train or its engine were made aware of the peril of the plaintiff in time to have saved him from injury by the exercise of reasonable care. It results from what we said in Garvick's case, supra, that if he had been discovered on the track in the full power of locomotion and no impediment to his escape those on the train might well have acted on the assumption that he would use his senses for his own protection and get out of the way in time to save himself from harm. Nor did the mere passive acquiescence, if such there were, of the appellant in the occasional use of its track as a foot path by persons returning from the District line to their home in Prince George's County create a new duty or impose additional obligation on its part to provide against the danger of accident. Godfrey v. R. R. Co., 71 Ills. 500, and cases there cited.\\nBoth the engineer and fireman in charge of the engine positively denied that the}7 had any knowledge of his presence on the track until they learned of the accident after its occurrence. The plaintiff's counsel at the trial of the case were permitted to ask the fireman, for the purpose of contradicting him and discrediting his testimony, whether he had not, six months or more after the date of the accident, told two persons that on the night of the accident the engineer was drunk and that he, the witness, was thf man that hollered to the plaintiff that night. The fireman positively denied that he had made any such statements. One of the parties to whom the statement was alleged to have been made was afterwards put upon the stand and testified that the fireman had in fact made the statement to him. The plaintiffs' counsel were entitled to put the question to the fireman when he was on the stand for the purpose of contradicting him and to introduce the contradicting testimony and the jury were entitled to consider that testimony in determining the degree of credit to be accorded the fireman's evidence but they were not entitled to consider it asev idence to prove the truth of the contents of the statement. Such evidence \\\"is to be received \\u00aband considered by the jury-alone as rebutting and contradicting evidence to discredit the witness.\\\" \\\"Were.it otherwise the result would be the admissibility in an indirect way of often the loosest and most unreliable hearsay.\\\" Mason v. Poulson, 43 Md. 176; Stirling v. Stirling, 64 Md. 148. The plaintiff's own testimony that some one in the cab \\\"hollered\\\" to him when the engine was on top of him to get out of the way does not tend to prove that he was seen from the engine in time for its crew in the exercise of reasonable care to have prevented his injury, but rather tends to prove that he was seen too late for that purpose.\\nFor the reasons which we have mentioned we are of the opinion that the learned Judge below should have granted the \\\"defendant's first prayer which asserted that there was' no evidence in the case legally sufficient to entitle the plaintiff to recover and that the verdict of the jury should be for the defendant, and for his error in rejecting that prayer the judgment appealed from must be reversed. As we have determined that the plaintiff was not entitled to recover and will therefore not remand the case, we deem it unnecessary to review the Court's action upon the other prayers, or upon the other exceptions taken by the defendant to the rulings upon the admissibility of evidence.\\nJudgment reversed with costs, without awarding a new trial.\"}"
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+"{\"id\": \"2124369\", \"name\": \"AMERICAN SURETY COMPANY OF NEW YORK vs. HORACE L. SPICE\", \"name_abbreviation\": \"American Surety Co. v. Spice\", \"decision_date\": \"1912-12-05\", \"docket_number\": \"\", \"first_page\": \"1\", \"last_page\": \"9\", \"citations\": \"119 Md. 1\", \"volume\": \"119\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T18:46:24.777806+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"AMERICAN SURETY COMPANY OF NEW YORK vs. HORACE L. SPICE.\", \"head_matter\": \"October Term, 1912, January Term, 1913.\\nAMERICAN SURETY COMPANY OF NEW YORK vs. HORACE L. SPICE.\\nCourt of Appeals: points not raised below. Bankrupt Act of 1898 : judgments excluded from benefit of discharge; actions for fraud, etc. Fiduciary capacity: failure to account.\\nQuestions are not open for review by tbe Court of Appeals that do not appear by the record to have been made or considered in the Court below. p. 2\\nA judgment of a surety against the principal for money paid for and on account of a default of the latter in his contract with his employer, is not a judgment in an action for fraud or created by the debtor\\u2019s fraud, etc., so as to be excluded from the benefit of discharge under sec. 17 of the Bankrupt Act of 1898. p. 7\\nPailure to account is not necessarily a fraudulent failure, p. 7\\nThe term fiduciary capacity as used in see. 17 of the Bankrupt Act of 1898, refers to technical and express trusts and excludes conversions and frauds by commission men, brokers, agents, parties, etc., and other implied trusts. p. 9\\nDecided December 5th, 1912.\\nAppeal from the Baltimore City Court (Dob\\u00ed.er, J.).\\nThe facts are stated in the opinion of the Court.\\nThe cause was argued before Botd, C. J., Briscoe, - Pearce, Thomas, Pattisoh and Stockbridgke, JJ.\\nJames U. Dennis (with a brief by Dennis & Dennis), for the appellant.\\nWm. H. Hudgins and James E. McEvoy, Jr. (with whom was W. Howard Gahan on the brief), for the appellee.\", \"word_count\": \"2984\", \"char_count\": \"17216\", \"text\": \"Pearce, J.,\\ndelivered the opinion of the Court.\\nThis is an appeal from an order of the Baltimore City Court, passed April 20th, 1912, striking out a judgment of fiat rendered March 12th, 1901, in favor of the appellant against the appellee. The record in the present ease embraces all the proceedings from the institution of the original suit between the parties, down to the order here appealed from.\\nIt appears that on August 10th, 1888, the appellant sued the appellee in assumpsit in the Baltimore Oity Court. The narr. contained the common counts for money payable, and a special count alleging that the defendant, the present appellee, was an insurance agent, and in that capacity desired to represent certain insurance companies named in the narr., and that the plaintiff, the present appellant, upon the application of said insurance companies, and in the course of its usual business as a guarantor, guaranteed said companies against loss which they might sustain from the dishonesty or culpable negligence of the defendant while acting as their agent, this guarantee being given for a valuable consideration, and in further consideration that the defendant should contract to indemnify the plaintiff against loss by reason of such guarantee, and that the defendant did so contract with the plaintiff, and thereafter became the agent of said companies, and while so engaged, defaulted, and failed to account to said companies for money received by him as their said agent, whereby the plaintiff was compelled to pay large sums of money to said companies by reason of such default. The pleas were: (1) Rever indebted as alleged; (2) never promised as alleged; (3) that plaintiff never paid said companies any money, at defendant's request, or which it was legally compellable to pay them, and (4) that he did not know in fact that the plaintiff had ever paid said companies any money on his account, and issue was joined on these pleas. Testimony was taken in Rew York City under a commission, and extracts from the bond given one of these companies is embraced in the \\u2022 return of said commission and is incorporated in the record in this case. One of the conditions of this bond was that the guarantor should make good any loss sustained by the company \\\"by reason of any act of fraud or dishonesty on the part of the agent in connection with the duties of the office or position herein referred to.\\\" The trial resulted in a judgment for the plaintiff for $5,409.62.\\nTwo writs of scire facias were issued on this judgment, one on February 2nd, 1901, returnable to the February return day, and the other on February 12th, 1901, returnable to the March return day, both of which were duly returned \\\"nihil\\\", and on March 12th, 1901, judgment of \\\"fiat executio\\\" was entered.\\nOn January 13, 1912, the defendant therein moved to strike out this judgment, assigning as a reason, that on March 23, 1909, he, being then a resident of the State of Iowa, was adjudicated a bankrupt by the United States District Court for the Southern District of Iowa and subsequently received a discharge from all debts contracted by him prior to the institution of proceedings in bankruptcy, provable under the bankrupt act, and not excepted by such statutes from the effect of such discharge; that the plaintiff's judgment against him was returned to the Bankrupt Court, in the list of defendant's debts, together with the last address of the plaintiff known to the defendant. That he had never since assumed or promised to pay said judgment.\\nThat he had no notice of the scire facias proceedings mentioned, or of the judgment of fiat thereon until September, 1911. That his said discharge in bankruptcy would have been a good and valid defence to the scire facias tinder which the judgment of fiat was obtained, but because of want of notice of the pendency of the same, and without fault or laches on his part, no opportunity was allowed him to plead such discharge, and the deposition of the defendant was taken February 28, 1912, in due form supporting the facts alleged in the motion. The plaintiff answered the motion to strike out the judgment of fiat, alleging only that the discharge mentioned \\\"was not good and complete defence to said scire facias, the debt represented by said judgment being excepted from the operation of said discharge by the provisions of section 11 of the Bankruptcy Act of the United States passed in the year 1898, and for other reasons to be shown at the hearing,\\\" and on April 20th,'1912, an order was passed striking out the judgment of fiat.\\nThe appellant first contends that the appellee was guilty of laches in not filing his motion to strike out until January, 1912, eleven years after the judgment of fiat, and for this he cites Gorsuch v. Thomas, 57 Md. 339, but it is manifest from the language of that case, that laches could not be urged except where the defence, made the ground of the' application, could have been produced and made available as against the scire facias by the use of proper care and diligence. Moreover, it does not appear from the record that this point was made or considered in the Court below, and it is therefore not open for review here.\\nIf the method of proceeding is questioned in this case, that is settled by the cases of Starr v. Heckart, 32 Md. 267, and George v. Jones, 80 Md. 298. In the former case, the original judgment in question was recovered in 1858 in Anne Arundel county, and in 1859 the judgment debtor removed to Baltimore, and was finally discharged under the insolvent law the same year. In 1866 a scire facias was issued on the judgment, and a fiat, was entered after two returns of nihil. It was held that the discharge was a good and valid defence to the scire facias by the insolvent debtor, he being without fault or laches on his part, no opportunity having been allowed him to plead the same. The proceeding in that case was by bill for injunction to restrain an execution issued and levied on his property, and the Court observed that in some cases relief might be obtained by a summary motion to strike ont the judgment, or to quash the execution, if one should be issued, but held that in that case the equitable jurisdiction of the Court was properly invoked. In the latter case, Jones v. George, supra, the Court expressly approved the proceeding by motion to strike out the judgment in order to give the defendant an opportunity to plead the statute of limitations to the original judgment, although it was seventeen years after its rendition.\\n\\\"The question before us is thus reduced to this: Was the defendant's discharge in bankruptcy on March 23rd, 1900. a valid defence to the scire facias upon the original judgment of March 26th, 1889, and this depends upon the construction to be given to sec. 17 of tbe Bankruptcy Act of 1898, which, so far as relates to the case before us, is as follows: Section' 17, Debts not Affected by a Discharge.\\\"\\n\\\"A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as (2) are judgments in actions for fraud, or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another or (4) were created by his fraud, embezzlement, misappropriation or defalcation, while acting as an officer, or in any fiduciary capacity.\\\" (U. S. Compiled Statutes, 1901, page 3428).\\nThe natural construction of this Act would seem to be (1) that whenever the debt has been reduced to judgment before the discharge is obtained, then, only such judgments are excepted from the operation of the discharge, as were obtained in actions for fraud, or for obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another; and (2) that whenever the debt has not been reduced to judgment before the discharge is obtained, then, only such debts are excepted from the operation of the discharge, as were created by the debtor's fraud, embezzlement, misappropria-' tion or defalcation, while acting as an officer or in any fiduciary capacity. The distinction that is made, is between debts that have, and those that have not, been reduced to judgment and in each of these classes, certain exceptions are made based upon differing considerations.\\nThe provable debt in this case being a judgment, the only proper inquiry is whether it comes within the class of judgments, exempted from the operation of the discharge. In determining this (and inverting the order of the exceptions) it is obvious that the judgment was not obtained in an action for wilful and malicious injuries to the person or property of another; nor in an action for obtaining property by false pretenses or false representations. The only remaining exception is where the judgment was obtained in an action for fraud, and there the test is whether the action was one for fraud, and not whether a different action one for fraud might have been brought if the creditor had so elected.\\nLooking then to the record of the original case we find the form of action was assumpsit, the form appropriate for breach of an agreement not under seal, but wholly inappropriate for recovery on a tort, or a fraud. The narr. avers that the defendant contracted and agreed \\\"with \\u00dcie plaintiff to indemnify it against all expenses it might sustain under its independent contract of guaranty with the insurance companies; that the defendant had made default under his contract with the companies, and had failed and refused to perform his independent contract with the plaintiff to repay to it, whatever it should be required to pay on his account to said companies. The account, or bill of particulars attached to the narr., is an ordinary open account such as is responsive to a demand for particulars, under the common counts, without any suggestion of fraud as an element in the case. The pleas were those appropriate to an action of contract, but would not have been permitted in an action sounding in tort. The words \\\"fraud,\\\" or \\\"fraudulent,\\\" nowhere occur in this narr. To be availed of for any purpose, fraud must be distinctly charged and proved, and cannot be inferred here from the allegation that the defendant defaulted and failed to account properly to his principal. Failure to account properly is not necessarily a fraudulent failure, and is often attributable to misfortune, unmixed with fraud, and it is to be noted here that there is no averment that the defendant had embezzled or misappropriated any moneys which the plaintiff had been required to pay to said companies. We do not think therefore that action can be held to be an action for fraud, as is essential under the section we are considering to except the judgment from the operation of the statute.\\nWe have not been referred to, nor have we found any case in conflict with the view we have expressed that section 17 of the Act 1898 broadly distinguished between debts which had, and those which had not, been reduced to judgment before discharge, but there are numerous cases, both in the State and Eederal Courts, in which are discussed the question whether a given judgment was one .\\\"for fraud\\\" and there may be some difficulty in reconciling these various cases. The principle established, however, by the best considered cases is thus stated in 0oilier on Bankruptcy (3rd Ed.), 195: \\\"Clause 2 of Section 17 does not except from the effect of the discharge claims created by fraud, or by obtaining property by false statements or by wilful or malicious injury to the person or property of another, but does except judgments rendered upon causes of action of that nature. The judgment, read in connection with the pleadings upon which it is based must establish the fact that the claim sued on. and merged in the judgment, was created through fraud, or by false pretenses or by wilful or malicious injury to the person or property of another.\\\"\\nIn In re Rhutassel, 96 Fed. Rep. 597, the judgment under consideration was obtained upon two promissory notes and the Court said the judgment was founded on the express promise to repay the money loaned by the bank,\\\" and in reply to the argument of the bank that the notes were procured by false property statements, said: \\\"If the Bankrupt Act provided that claims created by fraud, false statements or false pretences, were excepted out from the bar of a discharge, then the mere fact that the claim had been put into judgment would not preclude the holder thereof from proving its original or essential nature in-order to enable the Court to determine whether it came within the exceptions of the statute.\\\"\\nIn Hargadine-McKittrick Dry Goods Co. v. Hudson, 111 Fed. Rep. 361, the Court cited the earlier Act, and said: \\\"If the question at bar had arisen under the section just quoted, a decided conflict of authority might readily he cited but the present law reads as follows\\\" (quoting section 17 of 1898), and then said, \\\"the difference in language is striking. Under the old law no debt created by the fraud or embezzlement of the bankrupt was discharged by the proceedings in bankruptcy, but in the present Act it is 'judgments in actions for fraud' which are not released by the discharge in bankduptcy . The Legislature had some object in view in making this change. Its object therefore must have been to change the law in this respect Where a note is founded in fraud two remedies exist. The holder may waive the contract and sue for the fraud, or he may sue upon the note and waive the fraud. The plaintiff in this case chose the latter course and took its judgment on the notes. Under this statute it must be bound by that record, and cannot go back of it.\\\" This is equivalent to saying that the judgment must have been in an action ex delicto grounded on the fraud, and not in an action ex contractu where a fraud might have been incidentally shown.\\nBut even if it were competent to go behind the record of the judgment in this case it would not avail the appellant, since it is settled by the decisions that only such debts (whether reduced to judgment or not) created by the fraud of a bankrupt as were so created while he was acting as an officer or in a fiduciary capacity, are excepted from the operation of a discharge in bankruptcy. It will he sufficient for that purpose to cite Crawford v. Burke, 195 U. S. 176, where the question was carefully considered. It is not contended here that the defendant was acting as an \\\"officer,\\\" and it can not be successfully contended that he was acting in a \\\"fiduciary capacity.\\\" Collier on Bankruptcy, Vol. 2, sec. 2785, lays it down as settled law that this term refers to technical or express trusts and \\\"excludes conversions and frauds by commission men, brokers, agents, partners, etc., and other implied trustees.\\\"\\nNumerous authorities sustaining this text are collected in a foot note by the author. Among the.se is, In re Wenman, a conversion by a ticket agent of proceeds of sales of tickets, reported in 16 Am. Bankrupt Rep. 691. In Crawford v. Burke, supra, it was held that stock brokers who converted to their own use, shares of stock held by them for a customer, on an account, crediting him with amounts received as margins, and charging him commissions and interest, were not acting in a fiduciary capacity, and that the debt was not excepted from the effect of the discharge, and the Court said such had been the view of that Court ever since the case of Chapman v. Forsyth, 2 Howard, 202.\\nThis case was argued for the appellants with zeal and ability, but we have not been able to agree with the argument, and for the reasons stated the order will be affirmed.\\nOrder affvrmed, with costs to the appellee above, and below.\"}"
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+"{\"id\": \"2131953\", \"name\": \"J. W. SCOTT COCHRANE vs. HELEN BEALL COCHRANE\", \"name_abbreviation\": \"Cochrane v. Cochrane\", \"decision_date\": \"1921-12-01\", \"docket_number\": \"\", \"first_page\": \"530\", \"last_page\": \"534\", \"citations\": \"139 Md. 530\", \"volume\": \"139\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:20:56.595374+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. W. SCOTT COCHRANE vs. HELEN BEALL COCHRANE.\", \"head_matter\": \"J. W. SCOTT COCHRANE vs. HELEN BEALL COCHRANE.\\nSuit by Wife Against Husband \\u2014 Statutory Provisions.\\nUnder Code, art. 45, sees. 5, 20, a married woman may sue for the recovery, security or protection of her property as fully as if she were unmarried, in a court either of equity or law, and she may be sued separately upon her contracts, and for wrongs independent of contract committed by her, as fully as if she were a feme sole.\\nA married woman may sue her husband at law or in equity for the recovery, security, or protection of her property.\\nDecided December 1st, 1921.\\nAppeal from the Circuit Court for Dorchester County, In Equity (PIattisoh, C. J.).\\nBill by Helen Beall Cochrane against J. W. Scott Cochrane. From an order overruling a demurrer to the bill, defendant appeals.\\nAffirmed.\\nThe cause was argued before Boyd, O. J., Briscoe, Thomas, Ureter, Stockbridge, and Oeedtt, JJ.\\nJ. W. S. Cochrane, for appellant.\\nHenry Lloyd, Jr., and IE. Laird Heivry, Jr., submitting on brief, for the appellee.\", \"word_count\": \"1666\", \"char_count\": \"9165\", \"text\": \"Briscoe, J.,\\ndelivered the opinion of the Court.\\nThis is an appeal from an order of the Circuit Court for Dorchester County, overruling a demurrer to a bill in equity, with leave to the defendant to file an answer to the bill of complaint within ten days from the elate thereof.\\nThe bill is filed by a married woman against her husband, for an accounting and a discovery of certain moneys, securities and properties in bis bands and possession, belonging to her, and to pay over to her all sums of money wrongfully received by him for her and to deliver to her such securities and other property, now in his hands.\\nThe MU in substance alleges that the plaintiff is the wife of the defendant, having been married to him in the City of Cumberland, Maryland, and that they resided there for a number of years; that she has been for a short timo living apart from her husband, making her home in Baltimore City, and he residing in Dorchester County, Maryland.\\nIt is further alleged that, in the year 1906, the defendant, without the consent of the plaintiff, wrongfully acquired and took possession of property and securities of the plaintiff, consisting of certain promissory notes, and also certain mortgages on real estate situate in Allegany County, Maryland; these notes and mortgages, amounting in the aggregate to the sum of $10,390, and to the best of the knowledge and belief of the plaintiff executed by and given by certain persons, set out in tbe bill.\\nTbe bill also alleges that the defendant, since tlie wrongful acquisition of bis possession of her property in 1906, down to the present time, has controlled and managed the same, without rendering to your plaintiff a proper account of the principal and income derived from it, and without making to her any proper payment of the principal received by liim or tbe interest collected ther'eon.\\nTbe bill further charges that the defendant lias paid to the plaintiff various sums of money, at different times, during the years from 1906 to tbe present time, that the defendant rendered to the plaintiff a statement purporting to give tbe sums of money received and the moneys expended by him, between tbe dates July 18th, 1906, and April 30th, 1918, but tbe statement was manifestly inaccurate and incorrect; that be also paid to her, on the 30th of June, 1920, the sum. of $2,727.51, hut that this payment was not a settle^ ment in full, hut there is still a large sum of money rightfully clue to her, the payment of which she has demanded, hut which has been refused hy him, and he has also refused to restore and deliver to her the securities now in his possession and belonging to her.\\nThe prayer of the hill is, first, that the defendant may on oath answer the hill, and discover and set forth in detail all sums received hy him, and all disbursements made hy him, together with the moneys or securities of the plaintiff now in his possession, accounting from the first day of July, 1906, to tlie date of this hill, and account with the plaintiff for the same; second, that the defendant may he decreed to pay over unto the plaintiff all sums of money due to her on account of the property wrongfully taken charge of hy him; and third, a prayer for general relief.\\nThe defendant filed a demurrer to the hill, and assigned two grounds as cause of demurrer: first, that the plaintiff is the lawful wife of the defendant, as alleged in the bill, and cannot sue her husband; and second, that no express promise is alleged in the hill to repay or to refund the moneys alleged to have been taken possession of hy the defendant.\\nIt has long been settled, in this State, that the relation of debtor and creditor may exist between husband and wife, and as, under the Code, the wife is vested with the legal title to her separate estate, she can maintain an action for the recovery, security or protection of her property. Barton v. Barton, 32 Md. 214; Odend'hal v. Devlin, 48 Md. 439.\\nIn Wilson v. Wilson, 86 Md. 638, decided on January 5th, 1898, it was said that the weight of authority seems to be that either the husband or wife can sue the other in equity for protection of his or her property.\\nIn Masterman v. Masterman, 129 Md. 176, decided on June 23rd, 1916, it is distinctly said that there would seem to' he no doubt about the right of the wife to sue the husband in equity. Section 5 of article 45 authorizes married women to sue for the recovery, security or protection of their property, and if section 20 of that article be not applicable, it would seem that the plaintiff could sue her husband as well as any other person for the protection of her property under section 5 of the article. Hill v. Boland, 125 Md. 116; Taylor v. Welslager, 90 Md. 409; 1 Poe, Pl. & Pr., secs. 311-317; Lyell v. Walbach, 113 Md. 578.\\nIt will be seen that a complete change was made and effected in the law as to the rights of married women in this State by chapter 157 of the acts of 1898, and by chapter 633 of the acts of 1900, and now embraced as sections 5 and 20 of article 15, entitled \\\"Husband and Wife,\\\" Bagby's Code, vol. 1, page 1163.\\nBy section 5 of article 15 of the Code, it is provided:\\n\\\"Married women shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue upon their contracts, 'and also to sue for the recovery, security or protection of their property, and for torts committed against them, as fully as if they were unmarried; contracts may also be made with them, and they may also be sued separately upon their contracts, whether made before or during marriage, and for wrongs independent of contract committed by them before or during their marriage, as fully as if they were unmarried; and upon judgments recovered against them, execution may be issued as if they were unmarried; nor shall any husband be liable upon any contract made by his wife in her own name and upon her own responsibility, nor for any tort committed separately by her out of his presence, without his participation or sanction.\\\"\\nAnd by section 20 of article 15 of the Code (section 19A, chapter 633, acts 1900), it is also provided that:\\n\\\"A married woman may contract with her husband or with any other person or persons in the same manner as if she were a feme sole, and upon all such contracts, partnership or otherwise, a married woman may sue and be sued as fully as if she were a feme sole.\\\"\\nIt was clear, we think, both under the Code and upon the authorities that have been cited, that even prior to the passage of the acts of 1898 and 1900, now sections 5 and 20 of article 45 of the Code, that either the wife or the husband could sue the other and maintain an action in a court ,of equity for the protection of his or her property.\\nIt. seems also now well settled, upon a proper construction of sections 5 and 20 of article 45 of the Code, set out herein, that a married woman in this State may sue for the recovery, security, or protection of her property 'as fully as if she were unmarried, either in a court of equity or in a court of law, and she may also be sued separately upon her contracts, and for wrongs independent of contract committed by her, as fully as if she were a feme sole.\\nBy section 20 of article 45 of the Code, it is specially provided that a married woman may contract, with her husband, or with any other person, in the same manner as' if she were a feme sole, and upon all such contracts or otherwise she may sue or be sued as fully as if she were a feme sole, and this means that she may sue or be sued either in a court of law or a court of equity, as the nature of the case may require.\\nSo without stopping to. review the averments of the bill, which have been clearly stated in the previous part of this opinion, we think, the facts alleged therein are sufficient to sustain the relief sought by the bill, if they can be supported by proper proof, and the court below, therefore, committed no error in overruling the demurrer and requiring the defendant to answer the plaintiffs bill.\\nFor the reasons stated, the order of the court below will be affirmed.\\nOrder affirmed, the cause remanded, with costs to the appellee.\"}"
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+"{\"id\": \"2133866\", \"name\": \"ANNIE T. LEWIS vs. WILLIAM T. LEWIS\", \"name_abbreviation\": \"Lewis v. Lewis\", \"decision_date\": \"1922-03-02\", \"docket_number\": \"\", \"first_page\": \"524\", \"last_page\": \"528\", \"citations\": \"140 Md. 524\", \"volume\": \"140\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:10:12.951523+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ANNIE T. LEWIS vs. WILLIAM T. LEWIS.\", \"head_matter\": \"ANNIE T. LEWIS vs. WILLIAM T. LEWIS.\\nHusband and Wife \\u2014 Gift\\u25a0\\u2014Reformation of Deed.\\nA wife, by the use of her money in the purchase of property to be conveyed to her and her husband as tenants by the entirety, may make an effective gift to her husband, which will not be set aside if it is free from any fraud or undue influence. p. 527\\nIn a suit to secure the reformation of a conveyance, made to plaintiff and her husband as tenants by the entirety by a trustee acting under a decree, so as to vest the title in the plaintiff exclusively, held that the proof failed to substantiate plaintiff\\u2019s alternative charges of fraud or mistake in reference to-the deed sought to be reformed. pp. 527, 528\\nDecided March 2nd, 1922.\\nAppeal from the Circuit Court for Montgomery County, In Equity (Peter, J.).\\nBill by Annie T. Lewis against William T. Lewis to reform a deed. From a decree for defendant, plaintiff appeals.\\nAffirmed.\\nThe cause was submitted on briefs to Boyd, C. L, Briscoe, Ti-iomas, Pattisoh, Urher, Stockbridge, Adkiws, and Oeeutt, JJ.\\nR. E. Lee Smith, for the appellant.\\nDawson & Dawson, for the appellee.\", \"word_count\": \"1453\", \"char_count\": \"8220\", \"text\": \"Ubxbb, J.,\\ndelivered the opinion of the Court.\\nA deed to the appellant and appellee as tenants by the entirety is sought to he reformed, so as to vest the title in the appellant exclusively. The property conveyed by the deed consists of about five acres of improved land in Montgomery County. It is alleged by the appellant that she furnished the whole of the purchase price of $2,500, paid for the property, and that she intended to acquire it for herself individually, but that through the fraud of her husband, or the misappreheiision of the grantor, the deed was made to herself and husband as tenants by the entirety. The conveyance was by a trustee acting under a decree in proceedings for the sale of the property and division of the proceeds among the heirs of a prior owner. The only witnesses who testified as to the circumstances of the purchase and conveyance were the wife who desires, and the husband who opposes, the reformation of the deed, the trustee who- made the sale, and who prepared and executed the deed, having since died.\\nIt is an undisputed fact that the appellant, unaccompanied by her husband, attended the trustee's sale, made the successful bid for the property, and signed an acknowledgment of purchase in which herself and husband are both named as vendees. The paper thus executed was typewritten, except as to the names of the purchasers, which were inserted with a pencil in a blank space provided for the purpose. Under the appellant's signature, which she wrote with a pen, were the words \\\"Eor purchasers,\\\" of which the first was written with a pencil, and the second was in typewriting, except that a pencil had been used to add the final \\\"s.\\\" The testimony of the appellant is that she gave no directions to have her husband joined with her as a purchaser, and that she did not observe the presence of their names in the memorandum of purchase which she executed. It is argued on her behalf that the names may have been inserted, and the other pencil additions made, after the paper was signed. The evidence does not support that theory, and the character of the trustee, who was a reputable member of the- bar, is an assurance that lie conducted the transaction in accordance with what he understood to he the appellant's real intent.\\nThe sale was reported and ratified as having been made to \\\"William T. Lewis and Annie T. Lewis, his wife,\\\" the appellee and appellant, and the deed to them as tenants by the entirety was sent to Mr. Lewis by mail, and was read by Mrs. Lewis, as she admits, immediately upon its receipt. The delivery of the deed occurred in September, 1911, and the pending' suit for its reformation was not begun until September, 1920. It was testified by Mrs. Lewis that she did not learn the real effect of the conveyance until she was advised of it by counsel, whom she consulted when her husband filed a bill for divorce against her in August, 1919. But the fact that she and her husband were both named as grantees 'was apparent to her when she examined the deed at the time of its delivery. In July, 1918, she caused the bank account, previously in her name'alone, on which the checks for the purchase price of the property had been drawn, to be so entered as to be subject to either her own or her husband's order. After the purchase of the property, they occupied it together until their separation in May, 1919, as a result of marital difficulties. During that period the husband made substantial improvements to the premises at his own expense. According to his testimony, the purchase was made with money earned and owned by him, though deposited in a bank account kept in the name of his wife. He stated that the property was to be bought for him separately, and his wife was so instructed, but when he found that she had purchased it in their joint names, he made no objection.\\nThe court below concluded that the money used in the .purchase belonged to Mrs. Lewis, but that the proof failed to substantiate her alternative charges of fraud or mistake in reference to the deed sought to be reformed.\\nMuch of the testimony was directed to the inquiry as to the origin of the funds deposited in the account on which the checks for the purchase price of the property conveyed by the deed were drawn. We do not consider it necessary to discuss the evidence on that subject, since the appellant's claim to the ownership of the account was sustained. The proof tends to support that conclusion, and it also justifies the decision that the sale was reported and the deed was executed in pursuance of the appellant's voluntary action in buying the property for herself and husband, and not as the result- of mistake or fraud.\\nIt was competent for the appellant to make an effective gift to her husband by the use of her money in the purchase of property to be conveyed to them as tenants by the entirety, and such a gift will not be set aside if it was free from any fraud or undue influence. Reed v. Reed, 109 Md. 690. As reflecting upon the question as to whether the appellant intended to have the title conveyed to herself and her husband, there Is the important fact that, with full knowledge as to the form of the granting clause, she made no objection to the deed for three years after its execution and until the separation wo have mentioned had occurred. There is the further significant fact that, within the year following the acquisition of the property, the bank account from which the purchase money had been drawn was transferred to the appellant and appellee, with equal right of disposition. That account was later increased hy deposits of money which unquestionably was furnished by the appellee, to the amount of more than half of the consideration of the deed, and the appellant received the benefit, of such deposits to that extent by her withdrawal of the balance remaining at the time of her husband's application for a divorce. In thus placing his funds at his wife's disposal, in an account which was subject to her order as well as his own, the appellee was not acting as one who was inclined to practice a fraud upon his wife in regard to the use of her money. When their home in Montgomery County was purchased, their relations appear to have been harmonious. They had been married seven years, and they doubtless expected their union to continue through life. As Judge Petek said, in deciding the case below: \\\"They were pur chasing, the property for their permanent home. Considering the times, the investment was small. The relation of the parties, the amount involved, the quality of the estate, forbid the inference that the defendant was scheming to cheat his wife. If his purpose was to get her money, he would not have selected such an indirect and uncertain means.\\\" The record fails to sustain the theory of the bill that there was a misapprehension on the part of the trustee who made and reported the sale and executed the deed, or that fraud was practiced by the appellee in the transaction, but the circumstances of the case strongly support the opposite conclusion.\\nDecree affirmed, with costs.\"}"
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+"{\"id\": \"2133902\", \"name\": \"J. FRANK FOX vs. MARY FRAEBEL et al.\", \"name_abbreviation\": \"Fox v. Fraebel\", \"decision_date\": \"1922-01-11\", \"docket_number\": \"\", \"first_page\": \"54\", \"last_page\": \"59\", \"citations\": \"140 Md. 54\", \"volume\": \"140\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:10:12.951523+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. FRANK FOX vs. MARY FRAEBEL et al.\", \"head_matter\": \"J. FRANK FOX vs. MARY FRAEBEL et al.\\nSpecific Performance \\u2014 Lacle of Mutuality \\u2014 Tenancy by Entireties.\\nWhere husband and wife hold land by the entireties, a contract for the sale thereof, signed by the wife alone, is not onforcible against the husband. p. 55\\nThe courts will not specifically enforce a. contract which is lacking in mutuality of obligation, such as a contract of sale which is not binding on both plaintiff and defendants. p. 57\\nDecided January 11th, 1922.\\nAppeal from the Circuit Court Xo. 2 of Baltimore City (Stump, J.).\\nBill by J. Frank Fox against Mary Fraebel, A. Edward Fraebel, her husband, and the Bradford Loan and Savings Association. From a decree dismissing the bill, plaintiff appeals.\\nAffirmed.\\nThe cause was argued before Boyd, O. L, Briscoe, Ttrjnter, Stockbridge., and Oeeutt, JJ.\\nJ. Oalvm Garney, with whom were G. Milton Diclcerson and Diclcerson & Nice on the brief, for the appellant.\\nGeorge Arnold Fmch, with whom were William I. Norris and F. F. Dmhard on the brief, for the appellees.\", \"word_count\": \"1749\", \"char_count\": \"10081\", \"text\": \"Briscoe, J.,\\ndelivered the opinion of -the Court.\\nOn the 18th day of September, 1918, the Bradford Loan and Savings Association of \\\"Baltimore City, one of the de fendants in this case, agreed in writing to sell to one Joseph hf. Green a certain lot of ground, with the improvements thereon, situate on the southwest corner of Twelfth and Fleet Streets., Baltimore City, and known as 600 South Twelfth Street, for the sum of eighteen hundred and twenty dollars, subject to an annual ground rent of fifty dollar's..\\nThe contract of sale is set. out in the record, and it recites that the purchase price was to be paid in weekly installments, as stated therein, and it stipulated, upon payment of the balance due, it would execute to the purchaser at his costs and expense a deed for said property, subject to the ground rent mentioned therein. There were other covenants and stipulations, set out in the contract of sale, which will fully appear from the contract itself, but need not be further stated here.\\nOn the 18th day of December, 1918, Joseph M. Green assigned and transferred to two of the defendants, A. Edward Fraehel and Maria Fraehel his wife, as tenants by the entire-ties, all of his right, title and interest in the alleged lease, and to the property mentioned therein, as follows:\\n\\\"For value received, I hereby transfer, assign and set over unto Edward Fraebel and Maria Fraebel, Ms wife, as tenants by the entireties, all my right, title, and interest in and to the within agreement and the property mentioned therein. The said Edward Fraebel and wife on their part hereby accepting this agreement with all its clauses, conditions and covenants.\\n\\\"As witness the hands and seals this 12th day of December, 1918, of the parties hereto.\\n\\\"Joseph M. Green. (Seal) \\\"Edtvard Fraehel. (Seal)\\n\\\"Mary Fraebel. (Seal)\\nTest:\\n\\\"Edna Y. Schaeffer.\\\"\\nOn June 10th, 1919, Mrs. Mary Fraebel, alone, executed a two year lease of this property to William E. .Jarrell, with the option of purchasing the property for the sum of twenty-three hundred dollars. The lease in question is as follows:\\n\\\"This Agreement Witnesseth, That Mary Travel doth hereby agree to lease to William E. Jarrell property Xumber 600 S. Twelfth Street, in Baltimore City, Maryland, at a rental of thirty dollars ($30.00) per month, beginning from March 10th, 1919, for a term of two years, with the privilege of subleasing said property by William E. Jarrell, and also the option of purchasing said premises for the sum of twenty-three hundred dollars.\\n\\\"Witness our hands and seals this sixteenth day of June, 1919.\\n\\\"Mary Earebel. (Seal)\\n\\\"W. E. Jarrell. (Seal)\\n\\\"Test:\\n\\\"Emil R. Denhard.\\\"\\nWilliam E. Jarrell, one of the parties to' the lease, died on the 19th of October, 1919, and on the 24th of February, 1921, letters of administration on his estate were granted to his widow, Stella E. Jarrell, by the Orphans' Court of Baltimore City. 'Subsequently, she procured an order of the orphans' court directing the sale of the alleged lease and option, and sold the same to the plaintiff, J. Frank Fox, for the sum of two hundred dollars. This sale, it appears, was reported to and ratified by the orphans' court, and the administratrix thereafter made the following transfer and assignment on the lease and option to J. Frank Fox:\\n\\\"For value received, I hereby assign and transfer the above agreement and option to J. Frank Fox.\\n\\\"Witness my hand and seal.\\n\\\"Mrs. Stella Jarrell, (Seal) \\\"Administratrix of William E. Jarrell, deceased.\\\"\\nOn March 5th, 1921, the appellant notified the three appellees, by letter, that he had purchased the lease and option and had elected to exercise the option to purchase the property, contained therein. The letter is set out in the record and is as follows:\\n\\\"March 5th, 1921.\\n\\\"Mrs. Mary Eraebel and Mr. A. Edward Eraebel, her husband, Bradford Building and Loan Association.\\n\\\"I beg to notify you that I have purchased from Mrs. Stella C. Jarrell, Administratrix of the estate of William E. Jarrell, the lease of and option to purchase the property ISTo. 600 South Twelfth Street, Baltimore, Md. I beg to notify you that 1 do hereby exercise the option to purchase said property contained in the agreement entered into with the late William. E. Jarrell on June 16th, 1919. I am ready now to pay for said property in accordance with said agreement, and would be g-lad if you will let me know when you will be ready to execute a deed to me for the same.\\n\\\"This letter is a notice to you of my election to exercise the option contained in said agreement.\\n\\\"Kindly let me know not later than next Wednesday, March 9th, 1921, what time will be convenient to you to consummate tbe matter.\\n\\\"J. Erank Eox.\\\"\\nThe defendants declined to* convey the property to the* appellant and, upon this* refusal, the pending hill was filed to* specifically enforce* the lease* and the* option to* purchase* the property in question, and for a decree to compel the defendants to execute a proper deed for the property to the plaintiff, upon the* payment of the purchase money.\\nThe hill also asked that pending the determination of the suit, the defendants and each of them, be restrained and enjoined from selling, or in any way disposing of the property, described in the lease.\\nThe defendants answered the bill and by their answer denied the right of the plaintiff to relief under his hill, and alleged that the averment of fact was entirely insufficient to afford relief by specific performance, as sought by the hill.\\nThe case was heard upon hill, answers and proofs, and from a decree, dismissing the bill without prejudice to any rights at la,w that the plaintiff may ha.ve, this appeal has been taken. <\\nThe law of specific performance is well settled in this State and elsewhere, and it is only \\u2022 necessary in this opinion to refer to a few of-the adjudicated cases. 25 Ruling Case Law, 203; Stoddert v. Tuck, 5 Md. 18; Kraft v. Egan, 78 Md. 36 ; Henneke v. Cooke, 135 Md. 417.\\nIn Horner v. Woodland, 88 Md. 512, this Court said: \\\"The contract sought to be enforced must be certain and definite in all of its provisions, and fair and mutual in its terms, and must be so clearly proven as to satisfy the Court that it constitutes the actual agreement between the parties. If any of these ingredients are wanting the specific performance will not be decreed.\\\"\\nIn the present case, it will be seen that neither the alleged written contract, nor the contract and testimony taken together, present a proper case for relief by specific performance.\\nThe contract or agreement to lease between Mrs. Mary Fraebel and Wm. E. Jarrell, dated the 16th of June, 1919, and containing the option to purchase the property, for the sum of twenty-three hundred dollars, was only signed by Mrs. Fraebel and not by her husband, Mr. Fraebel. The property had been assigned and transferred to them by Green, as tenants by the entireties, and the wife could not alone have effectually contracted to lease and to sell the property to which they held title as tenants by the entireties. Hartman v. Thompson, 104 Md. 408; Abrams v. Eckenrode, 136 Md. 248; Milburn v. Michel, 137 Md. 415.\\nAn examination of the evidence shows that Mr. Fraebel, the husband, never agreed to sign the lease or contract of sale, and never authorized his wife, as his agent, to enter into an agreement, \\\"to agree to lease\\\" or to agree to sell the property. His testimony in this respect, and to this effect, is supported by that of his wife, Mary Fraebel. The paper, in fact, was not signed by the husband, and was not properly executed to be specifically enforced. Jordan v. Reynolds, 105 Md. 296; Vinton v. Beamer, 55 Mich. 561; Dixon v. Dixon, 92 Md. 442.\\nThe Orphans' Court of Baltimore City had no authority or power to direct the administratrix of \\u00a5n E. Jarrell, deceased, to assign and transfer the lease and option of the 16th of June, 1919, to the plaintiff, so, as to affect or defeat the right, title and interest of the defendant A. Edward Eraebel to the property in question.\\nThe proof also fails to show a contract of sale that is binding upon both plaintiff and defendants, and the authorities are clear that the courts will not specifically execute a contract which is lacking in mutuality of obligation. Duvall v. Myers, 2 Md. Ch. 402; Welty v. Jacobs, 171 Ill. 624; Millburn v. Michel, 137 Md. 415.\\nAs was said by this Court in Abrams v. Eckenrode, 136 Md. 249: \\\"In view of the conditions existing in this case, it is evident that the right of the plaintiff to a decree for specific performance is not sufficiently clear', and that the difficulties in the way of such relief are too serious to permit ns to reach any other conclusion than that the decree dismissing the bill of complaint should be affirmed.\\\"\\nEor the reasons stated, the decree of the Circuit Court Xo. 2 of Baltimore City, dated the 20th day of May, 1921, dismissing the plaintiff's bill in this case, will be affirmed, but Aviihout prejudice to any rights at law that the plaintiff may have.\\nDecree affirmed, with costs lo the appellee.\"}"
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+"{\"id\": \"2143825\", \"name\": \"CLEVELAND R. BEALMEAR vs. LOADER JAMES and ELIZABETH JAMES, his wife\", \"name_abbreviation\": \"Bealmear v. James\", \"decision_date\": \"1925-01-23\", \"docket_number\": \"\", \"first_page\": \"274\", \"last_page\": \"279\", \"citations\": \"147 Md. 274\", \"volume\": \"147\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:37:34.920409+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CLEVELAND R. BEALMEAR vs. LOADER JAMES and ELIZABETH JAMES, his wife.\", \"head_matter\": \"CLEVELAND R. BEALMEAR vs. LOADER JAMES and ELIZABETH JAMES, his wife.\\nBuilding Restrictions \\u2014 Waiver\\u2014Specific Performance \\u2014 Doubtful Title.\\nBuilding restrictions covering a large tract of land will not be presumed to have been abandoned or waived as regards property in a particular block therein, merely because the owners-of land in such block have not sought to restrain violations of the restrictions as regards property in other blocks, by which violations they were not injured or affected. p. 277\\nThe abandonment or waiver of a building restriction may be shown by parol, since it is largely a matter of intention, but will not be presumed because the owner of property for the-benefit of which the restriction was created fails to take steps to-prevent violations which do not affect his property. p. 277\\nIn a suit for the specific performance of a contract for the sale of a lot, the court cannot undertake to determine the rights of lot holders generally as regards the waiver or abandonment of building restrictions created as regards all the property in that vicinity. ' * p. 278-\\nA reasonable doubt as to the vendor\\u2019s title, by reason of the-possibility of the enforcement of building restrictions by owners of other lots in the same block, is ground for the refusal of a decree for specific performance at the suil of the vendor. p. 278-\\nIn a suit by a vendor for the specific performance of the-contract of sale, in which he covenanted that the lot in question was free from building restrictions, it was proper to refuse-him relief, when it appeared that such restrictions had been created covering an extensive tract, including the lot in question, and that they had been observed in the immediate vicinity of that lot, though there had been a few violations in other parts of the tract. pp. 278, 279\\u2019\\nDecided January 23rd, 1925.\\nAppeal from the Circuit Court Ho. 2 of [\\u00a1Baltimore City (Stein, J.).\\nBill by Loader James and Elizabeth James, his wife, .against Cleveland R. Bealmear, for specific performance. From a decree for plaintiffs, defendant appeals.\\nBeversed.\\nThe cause was argued before Bond, C. J., Pattison, Adtcins, Oeeutt, Digges, Pabkei, and Walsh, JJ.\\nC. Alex. Fairbank, Jr., for the appellant.\\nHarry M. Benzinger, with whom was Henry H. Dineen on the brief, for the appellees.\", \"word_count\": \"1835\", \"char_count\": \"10666\", \"text\": \"Offutt, J.,\\ndelivered the opinion of the Court.\\nLoader James and Elizabeth, his wife, on October 26th, 1922, entered into a written contract with Cleveland B. Bealmear for the sale of a lot of ground at the southwest corner of Boland Avenue and Merryman's Lane, in what is now known ns Hampden, in that portion of Baltimore 'City known as the Old Annex. The contract contained a provision reading -as follows: \\\"It is understood there is no title restriction or zoning restrictions as to store-front improvements on said lot.\\\"\\nThe vendee refused to comply with the terms of the contract on the ground that the lot in question was subject to certain building restrictions known as the \\\"Hampden Association restrictions\\\" established and provided for by the constitution and by-laws of the Hampden Association. The vendors contend that these restrictions have long since been abandoned and did not at the time of the contract affect the property in question. The vendors, relying upon that theory, filed in Circuit 'Court Ho. 2 of Baltimore City their bill of complaint against the vendee, setting out the facts to which we have referred and asking for a specific performance of the contract of sale. The vendee answered setting up as a -defense to the suit the restrictions referred to and tes'ti-. mony was taken in connection with these pleadings. At its-conclusion' the court decreed that the contract of, sale he specifically enforced and from that decree this appeal has been taken.-\\nIt appears from the evidence that in or about 1857, in a ease pending in the Circuit Court for- B'altimore County between John ET. MoJilton and others and Sarah A. Mankin and others, an instrument Called the constitution of theHampden Association was filed. Just what that suit was, or in what- connection the instrument referred to was filed, or what rights the persons executing it or assenting to it had. at that time to encumber the property referred 'to in it, doe-snot appear. It 'does appear, however, from the instrument itself that the purpose of the association was the purchase of about four hundred and fifty acres of ground, then known as the property of Gen. Harry Mankin, which includes a large part of what is now the town of Hampden, a part of Baltimore City, and by that constitution that property was-i o be laid off in -streets and -avenues and lot-s, and all the lot-s-were to be subject to these restrictions; that is, the buildings-to be erected on the lots were to be set back at least twenty feet from the line of Central Avenue, no-w known as Boland Avenue, and the portions of other avenues eighty feet wide- and fifteen feet from the line of narrower avenues, and no-slaughter house or anything that might be regarded by the-trustees as a nuisance was to be allowed on the premises, nor-any distillery or manufactory of lager beer or other liquor,, nor place for the sale of intoxicating liquors.\\nThese restrictions are said to'- have been embodied in the deeds to the purchasers of the several lots into -which the-whole tract was -divided, but how the covenants ran or to-whom they ran or in what form they were is not disclosed. It is not contended, however, that these covenants-were not valid, or that they did not run with the land,, or that the several lot holders were not privileged to insist upon their observance inter sese. Manifestly we could not pass upon those questions upon the facts before us and for the purpose of this opinion', but without so deciding, we will assume that these covenants' were valid -and enforceable inter stse by the purchasers of the loto into which the Manikin property was divided.\\nThe real contention of the vendors was that these restrictions had been abandoned and that the lot owners had so far and so long acquiesced in a disregard of' the restrictions that they cannot now be heard to insist upon their enforcement.\\nThe evidence in the case, including a number of photographs, shows that the restriction which required buildings on lots on Central, or Roland Avenue, as it is now known, to be at least twenty feet from the street, has been in a number of instances violated, but oil the othe'r hand it shows that in the block in which the particular lot under consideration here is located there have been no violations of the restriction, and it does not appear that persons owning lots in that block have been in any way injured or affected by the violations, and it cannot be assumed as a matter of law that they have waived or surrendered' their right to insist upon a strict compliance with the covenant, because they did not attempt to re&train violations of the restriction in all parts of that very large tract of ground, when they themselves were not directly injured thereby.\\nThe question of abandonment or waiver in such a ease may be shown by parol, since it is largely a matter of the intention of the parties, but no such abandonment, or waiver will be presumed from the mere fact that the owner of property for the benefit of which restrictions have been created has not taken steps to prevent violations of such restriction, where his property is not affected by such violations. 15 C. J. 1254; Devlin on Real 12 Estate, page 1870.\\nIt cannot be said, therefore, beyond a reasonable doubt, that this property may not be subject to the restriction, nor can it be said that other persons owning other lots affected by the restriction, wlm are not before the court in this ease, will hot be permitted to enforce it.\\nWhether' this restriction has been waived or abandoned generally is a matter of fact depending upon acts and conduct, und we would not attempt in this proceeding to determine the rights of lot holders, which might be very seriously affected by such a decision, because sueb persons are neither before the court nor represented. In Miller's Equity, par. 694, it is said, in speaking 'of a decree for specific performance : \\\"The decree being a judgment in persona/m and not in rem binds only those who are parties to1 the suit and those claiming under them; and in no way decides the question in issue as against the rest of the world. Therefore, doubts on the title of an estate are liable to be disouissed between the owner of the estate and some third person not before the court and not bound by its 'decision. If there be any reasonable chance that some third person may ra.i'se a question against the owner of the estate after the completion of the contract, the court considers this to be a circumstance Which renders the bargain a hard one fot1 the purchaser, and one which in the- exercise of its discretion it will not compel him to execute.\\\" The same authority says in paragraph 692: \\\"The general rule is that 'the purchaser will not be compelled to take a title which is not. free from reasonable doubt -and which might in reasonable probability expose him to the hazards of litigation\\\" ; and in 25 R. C. L., page 274, it is said: \\\"Specific performance of a contract for the purchase of land will not be decreed where the vendor cannot \\u2022sliow a clear title, but merely oiie concerning which there is a reasonable doubt It is immaterial 'that it is doubtful whether 'the defect will ever incommode 'the purchaser. If there is any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, 'the Court considers' this a circumstance which renders the bargain a hard one for the purchaser, and one which it will not, in the exercise of its discretion, compel him to execute.\\\"\\nWow under the circumstances of this case, manifestly it cannot be conclusively or finally .said upon the testimony before us, which relates to only a few violations of these restrictions in a tract of city property containing over four hundred acres in a period of over sixty years, when the restrictions appear to have been observed in the immediate vicinity of the lot in question, that the owners of other lots or the same block cannot insist upon the application of the restrictions to that lot.\\nIn our opinion, therefore, the complainants were not entitled to the relief sought in their bill of complaint, and it should have beeu dismissed, and it therefore becomes necessary to reverse the decree appealed from and dismiss the bilk\\nDecree reversed and hill dismissed witih costs to the appellant.\"}"
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+"{\"id\": \"2150024\", \"name\": \"THE STATE OF MARYLAND, For the Use of Daisy A. Biggs, Widow, et al. vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE CITY, A Municipal Corporation\", \"name_abbreviation\": \"State ex rel. Biggs v. Mayor of Baltimore City\", \"decision_date\": \"1917-01-10\", \"docket_number\": \"\", \"first_page\": \"686\", \"last_page\": \"692\", \"citations\": \"129 Md. 686\", \"volume\": \"129\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:51:31.277646+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE STATE OF MARYLAND, For the Use of Daisy A. Biggs, Widow, et al. vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE CITY, A Municipal Corporation.\", \"head_matter\": \"THE STATE OF MARYLAND, For the Use of Daisy A. Biggs, Widow, et al. vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE CITY, A Municipal Corporation.\\nMunicipal corporations: highways and doclcs; duty as to\\u2014; negligence; damages; questions for the jury.\\nIt is the duty of a municipality to keep its public streets and highways in a -safe and proper condition for public travel, and i\\u00a3 the municipality fails in this duty and a person is injured as a result thereof, without negligence on his part, the municipality is responsible for the same in damages.\\nWhether there was such negligence on the part of the municipality is a question of fact for the jury, under proper instructions from the Court.\\nIn cases of suits for damages for injuries sustained through the negligence of the defendant, testimony of those familiar with the locality is admissible to describe it.\\nWhere evidence is conflicting the question is one for the jury.\\nThe weight and effect of testimony is for the consideration of the jury.\\nDecided January 10th, 1917.\\nAppeal from the Baltimore City Court. (Duffy, I.)\\nThe facts are stated, in the opinion of the Court.\\nThe cause was argued before Boyd, O. I., Briscoe, Burke, Thomas, Pattison, Hrner, Stockbktdge and Constable, JJ.\\nClifton S. Brown (with whom was Augustus J. Quinn on the brief), for the appellant.\\nBenjamin H. McKindless, Assistant City Solicitor, (with whom was S. S. Field, City Solicitor, on the brief), for the appellee.\", \"word_count\": \"2376\", \"char_count\": \"13523\", \"text\": \"Briscoe, J.,\\ndelivered the opinion of the Court,\\nThis action was brought for the use of the widow and the infant children of one Albert Biggs, deceased, ag'ainst the defendant, the Mayor and City Council of Baltimore, to recover damages for his death, alleged to have been caused by the negligence of the defendant, in permitting: one of its public streets or highways, called Bush street, at the point, where it adjoins what is known, as the Bush Street Dock, to be and remain in an unsafe and dangerous condition for public travel.\\nThe amended declaration, and the one upon which the case was tried avers, in substance, .that it. was the duty of the Mayor and City Council, its, agents and servants, in the premises, so to protect this street at the point overlooking the dock, that the public should be safeguarded from accident while traveling along the street,; but the Mayor and City Council of Baltimore City, its agents and servants, carelessly and negligently failed to perform its, duty in the premises, and left the street unsafely protected, in consequence whereof Albert Biggs, on the night of the 27th day of February, 1915, while lawfully operating and driving an automobile on Bush street, ran into the dock, and was then and there thrown into the water; and that Albert Biggs, used due care. That by reason of being thrown into the water of the dock, he became sick in body and mind, and from the sickness did, on the 11th day of March, 1915, die; that the running of the automobile and the throwing of Biggs, into the water of the Bush street dock, and his. sickness and his death were due. to the unsafe and dangerous, condition of Bush street at the point where it overlooks! Bush street dock; and the unsafe and dangerous condition of Bush street, was clue to the negligence and carelessness of the defendant,, its agents and servants; and that Albert Biggs at the time of the happening of the events hereinbefore mentioned, in no wise contributed to the accident.\\nAt the conclusion of the testimony on the part of the plaintiff, the Court below granted the defendant's second and fourth prayers, withdrawing the case from the jury, first, upon the ground that there was no evidence legally sufficient to prove any negligence upon the part of the City, and secondly, that it appears from the undisputed evidence, that the deceased did not exercise reasonable care to avoid the accident, hut by his own negligence contributed directly to the injuries which resulted in his death, and that under the pleadings the verdict of the jury must be for the defendant. The action and ruling of the Court in granting these prayers, directing a verdict for the defendant constitutes the plaintiff's sixteenth exception, and as this exception presents the principal propositions of law, in the case, it will he passed upon by us, before considering the other questions raised by the exceptions to the rulings of the Court upon evidence.\\nWas the Court right, in holding as a matter of law, under the evidence set out in the record and in so instructing the jury, first, that there was no evidence legally sufficient to prove any negligence on the part of the defendant, and secondly, in ruling that under the undisputed evidence, the deceased by his own negligence contributed directly to the injuries which resulted in his death ?\\nThe solution of these questions involves and requires an examination and statement of the material facts, as disclosed by the record.\\nThe rules of law bearing upon negligence and contributory negligence have so often and recently been announced by this Court, as to admit of but little discussion. A reference to a few of the cases, should be sufficient to establish the general rule, on which similar questions must he determined. McCarthy v. Clark, 115 Md. 454; Annapolis v. Stallings, 125 Md. 343; Burke v. Baltimore City, 127 Md. 560.\\nThe- material facts- o-f the case briefly stated, will be found, to be these: The deceased at the time of the accident, on the 27th of February, 1915, was employed by Charles B. Jester, in the work of house painting and when not engaged in this work, -acted as chauffeur in running an automobile belonging to his- employer. On the afternoon of the accident he was directed to take the machine to the garage to he overhauled, and after it had been repaired, it was taken from the shop by him and the machinist, to be tested on the streets. The witness Langhart testified, that they left the garage at 5 :30 P. M. and proceeded north on Spring street- to- Hoffman street and west on Hoffman to Harford avenue, thence over certain other streets to Pratt street, and west, on Pratt street to Munroe street, that they stopped at the corner of these two streets and that Biggs left the witness at. this point about 8 P. M. and drove the car south on Monroe street.\\nThe witness Matthews testified, that on the night of the accident, between 8 and 9 o'clock a ear was stopped at Ridgely street and an inquiry made by some one as- to the direction to tire Annapolis road. He told him to go down Bush street and make a turn to the right on the Annapolis road, that Ridgely street was about one square from the Aunapolis road. \\\"I told him to go to the next square and turn to the right\\\" and that the machine went clown Bush street and when the witness looked again he saw the back part of the machine go over the wall, into the water of the dock. That, there was an electric light located at the northwest corner of Bush street and the Annapolis, road, and \\\"I told him where the light was lighting and going out to turn to his right.\\\"\\nThe evidence further shows, that Bush street at the place of the accident \\u2022 extends southeasterly to the northwest side of Russell street which is commonly called the Annapolis road. This road extends southwesterly across the lower end of Bush street. A large sewer is located beneath the bed of Bush street, and across Russell street, and empties into what is called the Bush street dock,\\nAt the foot of Bush street aud on the sewer, there was a stone wall, the coping of which was about six or seven inches above the surface of the adjoining ground and adjacent to and along side of the Annapolis road, and there was testimony that tbis coping, to one walking down Bush street at night could not be seen \\\"until you got right on top of it. While there were two arc lights attached to poles> one across the road at Bush street and the Annapolis road, and the other about 150 or 175 feet distant to the west from the first light, there is a conflict in the testimony, as to whether the arc lights, there located, furnished sufficient light and warning to enable travelers or strangers passing at night, along Bush street, to see that this .street ended, at the Annapolis road and Bush street dock. There was no light upon the stone wall, and no- guard around or near the coping on the wall, and this coping was only about six or seven inches above the surface of the ground.\\nThese facts, it will be seen, are material and as the evidence is conflicting in regard to them, they present questions proper for a jury to determine.\\nThere was no question raised as to the public character of these streets, but it was admitted that Bush street and Bus-sell street are public streets.\\nThere was other testimony, but as we think the Court below upon the whole testimony committed an error in withdrawing the case from the consideration of the jury on the prayers of the defendant it need not be set out by us.\\nThe duty of a .municipality to keep- its public streets and highways in a safe and proper condition for public travel is well settled by numerous decisions of this Court, and if the city negligently fails so to do, and persons acting, without negligence are injured, the city is liable in damages. Baltimore City v. Beck, 96 Md. 190; Baltimore City v. Walker, 98 Md. 643; Annapolis v. Stallings, 125 Md. 345; Burke v. Baltimore, 127 Md. 562.\\nIn Mayor and City Council v. O'Donnell, 53 Md. 110, this Court said: \\\" 'That it was the duty of the defendant to take proper precaution, by proper guards, signals, lights or other warnings-, to warn persons of the impassable condition of the street, so as to prevent injuries to persons passing along said street, and if the jury further find that the defendant, and those employed by it- in repairing and recurbing said street, did not use ordinary care in providing such precautions, and that the plaintiff in consequence of such neglect to provide such precautions was thrown from his: hack while driving with ordinary care along said street, then the plaintiff is entitled to recover.' \\\"\\nIn Mayor and City Council of Baltimore v. Maryland, 166 Fed. 641, the Court said: \\\"Undoubtedly, a municipality is not required ordinarily to erect barriers, railings or other construction to prevent persons traveling upon a highway from straying therefrom; but it does not follow that the obligation does not exist where the point is dangerous, either naturally or because of the work being done in and about the highway at the particular time. Whether the excavation in this case was dangerous, or the railing thereto, or the warning given was sufficient to protect persons from or warn thorn of such danger, were questions of fact, all to he determined by the jury upon consideration of the whole evidence.\\\" Burton v. Kansas City, 181 Mo. App. 427; Burke v. District of Columbia, 42 App. D. C. 438; Corcoran v. City of New York, 188 N. Y. 131; Wheat v. St. Louis, 179 Mo. 572.\\nThere was also error in the ruling of the Court upon the fourth prayer. There was no such testimony as to warrant the Court to rule, that the conduct of the deceased amounted in law, to contributory negligence. This, question, under the conflicting evidence, was one of fact for the jury. B. & O. R. R. v. State, 72 Md. 40; Baker v. Md. Coal Co., 84 Md. 27; McCarthy v. Clark, 115 Md. 464; Burditt v. Winchester, 205 Mass. 493.\\nComing now to a consideration of the fifteen bills of exception reserved in the course of the trial to the rulings of the Court upon the admission of evidence, we find no reversible error in the first, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth and fifteenth exceptions. There was error in the rulings on the second, third, fourth, fifth and sixth exceptions. \\u2022\\nThe witness Galloway who was present on the night of the accident and assisted in removing the deceased from the water, and bringing him to the shore and who had an opportunity of observing the conditions and was familiar with the place of the accident, was asked the following question: \\\"Will you state to the Court and jury how the dock appeared in relation. to Bush street on this particular night?\\\" An objection to this question was sustained as set out in the second exception.\\nThere was serious error as to the ruling on this exception. The witness had been familiar with the place and surroundings for eighteen years and was clearly competent to speak of the place of the accident.\\nIn United Railways v. Ward, 113 Md. 649, this Court said: \\\"It is the uniform practice to allow' those who witness an accident of the character of the one wo are considering, to testify to the speed of the train or car, and to permit those who are familiar with it to describe the place of the accident.\\\" Wigmore on Evidence, secs. 460, 650.\\nThere was also error \\u00e1s to the rulings on the third, fourth, fifth and sixth exceptions for the reasons stated in discussing the second exception.\\nThe medical testimony tended to show that the proximate cause of Biggs' death was due to the shock and exposure resulting from the accident, and as the judgment must be reversed for the error's indicated, and a new trial awarded, we refrain from intimating an opinion as to the weight and effect- of the testimony, set out in the record, as these were questions for the consideration of the jury upon proper instructions from the Court.\\nFor the reasons stated, the judgment will be reversed and a new' trial awarded.\\nJudgment reversed and new I\\u00f1al awarded, with costs.\"}"
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diff --git a/md/2175207.json b/md/2175207.json
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+"{\"id\": \"2175207\", \"name\": \"ALLEN W. MALLERY, Assignee of JOHN B. CONTEE et al. vs. JEMIMA C. QUINN et al.\", \"name_abbreviation\": \"Mallery v. Quinn\", \"decision_date\": \"1898-06-28\", \"docket_number\": \"\", \"first_page\": \"38\", \"last_page\": \"48\", \"citations\": \"88 Md. 38\", \"volume\": \"88\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:21:50.000344+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALLEN W. MALLERY, Assignee of JOHN B. CONTEE et al. vs. JEMIMA C. QUINN et al.\", \"head_matter\": \"ALLEN W. MALLERY, Assignee of JOHN B. CONTEE et al. vs. JEMIMA C. QUINN et al.\\nEquity Practice\\u2014 Vacating Enrolled Order upon Petition\\u2014 Unauthorized Release of Mortgage by Trustee upon Ex Parte order.\\nWhen a decretal order in an equity case was passed ex parte and without a hearing upon the merits, it may, after enrolment, be vacated upon petition, when the court is satisfied that the decree should be set aside, or was entered by surprise or mistake, and will operate as a fraud upon the rights of others.\\nA trustee of two different estates invested a sum of money, one-half of which belonged to each estate, in a mortgage from A. to the, trustee. Subsequently A. became entitled, as a dis tributee of one of the trust estates, to a sum in excess of the whole mortgage debt. Upon her application, an ex parte order was passed in the equity cause, in which both trusts were being administered, by which the trustee was authorized to release the mortgage and charge the amount thereof against the sum payable to A. out of one estate. The trustee was then insolvent and a defaulter to both estates. Held, that the Court had no authority to empower the trustee to pay A. her share of one estate with funds belonging to the other trust estate; that the release of the mortgage was a breach of trust in which A. and the trustee participated and must be cancelled, and that A. is bound to make good to the other trust estate the amount of her indebtedness to it.\\nAppeal from an order of the Circuit Court for Prince George\\u2019s County (Merrick, J.) dismissing the appellant\\u2019s petition.\\nThe cause was submitted to the Court upon briefs filed by John B. Contee and Duckett & Dent for the appellants, and Charles H. Stanley and Jos. K. Roberts for the appellees.\", \"word_count\": \"3615\", \"char_count\": \"20659\", \"text\": \"McSherry, C. J.,\\ndelivered the opinion of the Court. There are two questions presented by this record. One is a question of equity pleading, and the other involves the merits of the controversy. The order appealed from was based exclusively on the technical ground raised by the first inquiry, but the appeal brings both before us for final decision. These two questions arose.in the following manner: Under the will of John D. Bowling an annuity of five thousand dollars was bequeathed to his wife, Elizabeth Bowling. He directed John Bowling, Joseph K. Roberts and Henry W. Clagett, trustees, to set apart and to hold in trust a sufficient portion of his estate to raise this annuity. He further provided by the residuary clause that upon the death of his widow, the corpus of the trust fund yielding this annuity should be divided amongst his children, to be held by or for them subject to the limi tations prescribed with regard to other property devised and bequeathed to them respectively by antecedent clauses of his will. By one of these antecedent clauses \\u2014the sixth \\u2014 there had been given to the same trustees considerable property to be held in trust for Mrs. Contee, one of the testator's daughters, during her life, and there was superadded a power of appointment in her and a limitation over of the property to her children, upon her death, in default of the execution of that power. Both John Bowling and Joseph K. Roberts died and Henry W. Clagett became sole trustee under a decree passed by the Circuit Court for Prince George's County in equity cause No. 1031 on the Equity Docket of that Court. When ultimatefy, in September, eighteen hundred and ninety-six, Henry W. Clagett, the sole and the surviving trustee, was forced to state an account, it was discovered that he was a defaulter to the Elizabeth Bowling trust fund, out of which the annuity issued, to the extent of forty-seven thousand eight hundred and seventy dollars; and that he was likewise a defaulter to the Mrs. Contee trust fund \\u2014 the fund arising- under the sixth clause of the will \\u2014 to the amount of thirteen thousand and sixty-nine dollars. John Bowling, the son of the testator John D. Bowling, and one of the trustees under his will, died sometime in the year eighteen hundred and eighty-seven, leaving a last will and testament under which his widow, Jemima Bowling, became entitled to that portion of the estate of John D. Bowling which had been devised and bequeathed to John Bowling both directly and under the residuary clause. In November, eighteen hundred and eighty-seven, after the death of John Bowling, Jemima Bowling, his widow and legatee and devisee, borrowed from Joseph K. Roberts and Henry W. Clagett, the then surviving trustees, the sum of three thousand dollars. Of this amount the sum of fifteen hundred dollars belonged to the trust estate of Mrs. Contee, under the sixth clause of John D. Bowling's will, and the other sum of fifteen hundred dollars belonged to the Elizabeth Bowling trust fund. Two single bills, each for the sum of fifteen hundred dollars and each payable in five years, were given by Jemima Bowling to the trustees. To secure the payment o\\u00ed these two single bills she executed a mortgage upon real estate owned by her and previously acquired in the partition of her deceased father's estate. These two single bills confessedly and incontrovertibly represented investments of trust funds. Mrs. Jemima Bowling had no interest whatever in the Contee trust funds. No part of those funds was payable to her in any contingency or under any circumstances. As legatee of her deceased husband she had a one-sixth interest in the Elizabeth Bowling trust funds. In October, eighteen hundred and ninety-three Mrs. Elizabeth Bowling died. Under John D. Bowling's will the trust fund out of which the annuity issued was then distributable. In August, eighteen hundred and ninety-four, Mrs. Contee died without having executed her power of appointment, and the fund held by Clagett in trust during her life under the sixth clause of the will as well as one-sixth of the Elizabeth Bowling trust fund, ought then to have been distributed to Mrs. Contee's children. Clagett, then being the sole trustee, was dilatory in making a settlement. Mrs. Jemima Bowling had married again, her second husband being Harry E. Quinn. Mrs. Jemima Bowling, then Mrs. Quinn, being indebted to both the Contee and to the Elizabeth Bowling trusts, and at the same time being entitled to a part of the latter trust funds under the will of her former husband, and Clagett failing to make a settlement, caused a petition to be prepared, addressed to the Judges of the Circuit Court for Prince George's County. In that petition she set forth, that there was due to her as the widow and legatee of John Bowling a portion of the funds belonging to the Elizabeth Bowling trust, which portion was largely in excess of the amount due by her under the mortgage to the Contee and the Elizabeth Bowling trusts combined; and she prayed that Clagett might be empowered to release the three thousand dollar mortgage and charge the amount thereof against the funds in his hands payable to her out of the Elizabeth Bowling trust funds. In other words, she asked that the mortgage securing the fifteen hundred dollars due to the Contee trust estate be released and that Clagett reimburse that estate out of the funds in his hands payable to Mrs. Quinn out of the totally independent Elizabeth Bowling trust estate. This petition was sworn to by Mrs. Quinn. Clagett subscribed his assent to the passage of the order prayed for, and on the fifth of May, eighteen hundred and ninety-four, Judge Crane signed an order authorizing Clagett to release the entire mortgage and \\\" to charge the amount secured by said mortgage against the portion or share coming to Jemima C. Quinn from said Henry W. Clagett, surviving trustee of Elizabeth Bowling, now deceased.\\\" This petition, the affidavit thereto, the assent by Clagett and the Court's order thereon were filed on May the eighth, eighteen hundred and ninety-four, in equity cause No. 1031 in the Circuit Court for Prince George's County. This order was simply an ex parte order. The papers upon which it was founded were not filed before the order was obtained, and none of the beneficiaries of the Contee trust fund were notified or given an opportunity to be heard. The day following the date the order was filed Clagett executed a releas\\u00e9 of the three thousand dollar mortgage. The effect of this proceeding and the release, if sustained, is to destroy the fifteen hundred dollar mortgage security held by Clagett for the benefit of the Contee trust, and to substitute in its stead the personal liability of Clagett who at that time was hopelessly insolvent and besides was an actual defaulter to both trust estates. If the release stands Mrs. Quinn escapes paying back to the Contee trust fund the money she actually borrowed from it, though she has the means with which to'pay; and the Contee trust estate will be forced to seek'reimbursement from an utterly insolvent trustee; whilst Mrs. Quinn will realize in the final distribution of the Elizabeth Bowling trust funds a much larger share than any of the legatees under the residuary clause of John D. Bowling's will.\\nWhen the next of kin of Mrs. Contee discovered what had been done they filed on September the twentieth, eighteen hundred and ninety-five, in the same equity cause, No. 1031, a petition alleging that the order of May the fifth, eighteen hundred and ninety-four, directing Clagett to release the three thousand dollar mortgage had been improvidently passed and praying that it be rescinded and set aside. On February the twenty-eighth, eighteen hundred and ninety-six, an amended petition was filed seeking the same relief, but setting forth more in detail the grounds upon which the application was founded. It specifically charged that the order of May the fifth had been obtained without notice to the parties interested in the Contee trust funds, and that the petition upon which the order had been based was an imposition on the Court, and that no consideration had been paid or given for the release of the mortgage. There is no specific averment that the order of May the fifth had been procured by fraud, though it is alleged that the action of the trustee, Clagett, and of Mrs. Quinn resulted in a fraud upon the appellants. In due season an answer was filed by Mrs. Quinn and her husband, but a decree pro confesso was entered against Clagett. A general replication to the answer was put in and testimony was taken. Upon the hearing the petition was dismissed upon the sole ground \\\" that the proceedings should have been by original bill for fraud and not by petition.\\\" From the order dismissing the petition this appeal was taken.\\nThe first question with which we have to deal is whether the Court below was right in holding that the relief sought \\u2014 the annulment of the order of May the fifth, eighteen hundred and ninety-four \\u2014 :can only be granted or accorded under an original bill for fraud.\\nIt must be remembered that the relief invoked is not founded on an averment that the order of May the fifth was procured by fraud. The averment of fraud has relation, not to the oblention of the order, but to its effect after it had been obtained. Neither is redress sought because of a mere error of law apparent on the face of the proceedings, nor because of new matter discovered since the passage of the order. These observations are important in view of the fact that it is a thoroughly well settled doctrine of equity that in general a decree or decretal order, after enrolment, cannot be revised or annulled except by an original bill for fraud or by a bill of review. Being enrolled, a decree must ordinarily be allowed to stand for what it purports to be on its face, until reversed or revised in some more solemn manner than can be inaugurated by a mere petition. Miller's Eq., sec. 287, and the authorities there cited. But this general rule is not without exceptions; and consequently there are some decrees and decretal orders that may be rescinded and annulled without the formality of a proceeding by original bill. Mr. Miller in his admirable work divides the exceptions into three groups, viz.: First, cases not heard upon the merits; Second, cases in which the circumstances are such as to satisfy the Court that the decree should be set aside; and Third, cases where the decree has been entered by surprise or mistake. Miller's Eq., sec. 288. It is not deemed necessary to go into an examination of the numerous decisions that might be cited in support of these exceptions, but a few, by way of illustration, will be alluded to. Thus in First Nat. Bank v. Eccleston, 48 Md. 271, a bill was filed against husband and wife for the sale of real estate under a mortgage, and a decree pro confesso was passed after an order of publication. Subsequent to the enrolment of the decree the wife filed a petition praying that the enrolment be vacated and that she be allowed to answer the bill. It was held that \\\" where a decree has been passed by default without a hearing on the merits, a Court of Equity has power in the exercise of a sound discretion to vacate the enrolment in order to let in a meritorious defence, and this may be done upon petition without a bill of review or an original bill for fraud.\\\" And so in Straus v. Rost, 67 Md. 465, after four years from the date of the order of ratification of an audit, an infant filed a petition in the case, praying- that the audits be rescinded and that he might be allowed his share in the estate. The petition did not attack the original decree, nor impeach the title of the purchaser, nor assail the order of ratification on the ground of fraud. It was held that the remedy by petition was proper. In Thrustun v. Devecmon, 30 Md. 210, proceedings of an ex parte character had been taken and after the decree had been enrolled a petition was filed to vacate the enrolment on the ground of surprise, and asking to be let in to answer on the merits. There was no allegation of fraud. See Gechter v. Gechter, 51 Md. 190. It may be remarked in passing that in all instances falling within these exceptions the application is addressed to the sound legal discretion of the Court, though that discretion upon being exercised does not preclude an appeal from an order erroneously passed. First Nat. Bank v. Eccleston, supra.\\nThe order of May the fifth was obviously, in so far as the beneficiaries under the Contee trust were concerned, purely ex parte. Not only was no notice given but no possible opportunity to be heard was afforded. The petition was not filed until after the order appended to it had been signed. Not only was it ex parte but its passage was a palpable surprise. Without notice or hearing of any kind its effect, if efficacious at all, is to. divest a right which never would or could have been divested in such a way had the parties directly interested been given a day in Court. That it is fatally erroneous is manifest. It depletes a trust fund of an investment without cause; and in fact releases Mrs. Quinn from the obligation to restore to the Contee trust estate not merely money which she owed to it, but money which she had actually borrowed from that estate. There was not the slightest justification for the passage of the order, and it cannot be doubted that the Judge who signed it never would have sanctioned it if he had been apprised of the fact that Clagett was, at the time, insolvent and a defaulter and that the cestuis que trustent were ignorant of the application made to him. There was, confessedly, no hearing on the merits of the petition on which the order was founded. The fact that it strips a trust fund of an investment without consideration and to the certain prejudice and injury of that fund, conclusively demonstrates that it ought never to have been signed. The absence of notice in its obtention, and the manifest injustice of its effect point with unerring certainty to the mistake that was committed by its passage. It would be difficult to suggest a case combining more distinctly all three of the exceptions to the general rule; or one more strongly demanding the expunging or rescission of an improvident order.\\nThis case is widely distinguishable from The United Lines Tel. Co. v. Stevens, 67 Md. 156, relied on in the opinion of the Court below. In that case it was decided that when an enrolled decree is assailed for fraud in its obtention the only procedure to which resort can be had for its annulment is an original bill for fraud. In the case at bar fraud is not made the basis of the petition\\u2014 it is merely stated as the consequential result of the act done. In assuming the contrary view the learned Judge below fell into the error which led to the dismissal of the amended petition. The petition was not very artificially drawn, and singularly enough, as a result, the petitioner's solicitors have treated it as an original bill for fraud, whilst the respondent's solicitors claim that it is a petition alleging fraud. Looking to the substance rather than to the mere informal averments, we agree with neither contention. If it be an original bill it was' improperly filed in the old equity case No. 1031 \\u2014 it should have been the first step in an independent proceeding. But it is a petition and not an original bill. As, when rightly read, it does not seek to vacate the order of May the fifth on the ground of fraud practised in the obtention of that order, it was-properly filed in the original case and regularly brings- before us the propriety of the order which it assails. These observations dispose of the first of the two questions presented by the record.\\nBut little, in addition, need be said with respect to the second. There was no warrant or authority of law for taking from the Contee trust fund fifteen hundred dollars confessedly belonging to it, to pay Mrs. Quinn that much money due to her by Clagett out of the Elizabeth Bowling trust estate. Mrs. Quinn perfectly well knew that she owed fifteen hundred dollars to the Contee trust, and both she and Clagett were aware, or were bound to be aware, that she had no right to appropriate that money, thus due by her to others, to the payment in part of her share of a residuary legacy having no connection whatever with the Contee fund. The Circuit Court had no authority to empower the trustee, Clagett, to pay Mrs. Quinn her share of the Elizabeth Bowling trust funds with other funds belonging to a totally different trust estate. The diversion of these funds was a breach of trust committed by both Mrs. Quinn and Clagett, and the order of May the fifth, obtained as it was, whilst permitting it, does not and cannot legally sanction it. It makes no possible difference how much money was due by Clagett, trustee of the Elizabeth Bowling fund, to Airs. Quinn; he had no power to pay that debt with other and wholly different trust funds, and she had no right knowingly to receive payment through and by the release of a mortgage which secured a debt due by her to the Contee trust fund. She knew, or was bound to know, that the mortgage securing the Contee estate could not be lawfully released until she, the debtor, repaid the amount borrowed by her, and repaid it to the Contee fund. Eler complicity in the breach of trust, by means of which breach of trust the Contee fund was wrongfully depleted for her benefit, cannot be tolerated by a Court of Equity, but makes her, as well as the trustee, liable to restore to the Contee estate the amount improperly diverted from it. If she restores to that fund what she owes to it, she is not injured. She was a debtor to the Contee trust estate and she cannot be permitted to pay that debt by substituting for the mortgage which secured it, the personal liability of a defaulting and an insolvent trustee. It is wholly immaterial whether she knew or did not know that Clagett was insolvent. Her obligation was to pay the mortgage debt. That obligation has not been discharged, though she has sought to avoid discharging it by shifting the liability from herself to Clagett who was her debtor, but that scheme cannot avail. As she has not discharged the debt she owed to the Contee estate, she still owes it. The release of the mortgage was ineffectual to exonerate her. It therefore follows that the order of May the fifth must be rescinded, the release of the mortgage must be cancelled and that Mrs. Quinn must pay the fifteen hundred dollars with interest to the Contee trust fund. The order appealed from dismissing the petition will consequently be reversed and the cause will be remanded that a new order conforming to this opinion may be passed.\\n(Decided June 28th, 1898.)\\nOrder reversed with costs above and below, and cause remanded.\"}"
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+"{\"id\": \"2190032\", \"name\": \"JOHN GEORGE BACKUS v. CATHERINE A. BACKUS\", \"name_abbreviation\": \"Backus v. Backus\", \"decision_date\": \"1934-04-27\", \"docket_number\": \"No. 21\", \"first_page\": \"19\", \"last_page\": \"26\", \"citations\": \"167 Md. 19\", \"volume\": \"167\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:22:08.584815+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN GEORGE BACKUS v. CATHERINE A. BACKUS.\", \"head_matter\": \"JOHN GEORGE BACKUS v. CATHERINE A. BACKUS.\\n[No. 21,\\nApril Term, 1934.]\\nDecided April 27th, 1934\\nThe cause was argued before Bond, C. J., Pattison, Urner, Adkins, Offutt, Digges, and Sloan, JJ.\\nJ. Calvin Carney, for the appellant.\\nStuart M. Yeatman, for the appellee.\", \"word_count\": \"2573\", \"char_count\": \"13952\", \"text\": \"Offutt, J.,\\ndelivered the opinion of the Court.\\nThe parties to this appeal were married in 1929, and lived together at the home of the husband's mother in Baltimore until November, 1930, when they separated. After that he continued to live with his mother, while she found a home elsewhere.\\nIn October, 1931, she filed a bill for a limited divorce against him in the Circuit Court of Baltimore City on the grounds of desertion and failure to contribute sufficiently to her support. The husband, John George Backus, filed an answer denying those charges, and the case came on for a hearing on the issues thus made. In the course of the hearing the chancellor suggested that the parties \\\"go back to live together,\\\" and, following that humane and amiable suggestion, he dismissed the bill. The parties, however, continued to live apart, and on July 22nd, 1932, Catherine A. Backus, the wife, filed the bill in the present case against her husband praying a divorce a mensa et thoro, permanent alimony, alimony pendente lite, and suit money, on much the same grounds as those alleged in the first bill. In that bill, referring to her husband, she said: \\\"That she has earnestly requested him to provide a home for her, so that they might resume their marital relations and has gone so far as to go to his residence where he is now living with his mother, and stated to him that where his home is she was going to reside. He has refused to allow her to occupy this residence, nor does he provide another residence for her. That under date of July 19th, 1932, she was ordered from the premises occupied by him.\\\" Defendant in his answer, after denying the averments of the bill as to desertion and his failure to properly, support his wife, said in part: \\\"Your respondent, however, admits that the complainant has been to his residence, where he is now living with his mother and stated to him that where his home is she was going to reside. Your respondent admits that the complainant was not allowed to occupy said residence and he has not provided another residence for her. Your respondent also admits that the complainant was ordered from the premises occupied by your respondent, but was not ordered from the premises by him. Your respondent denies that he has deserted the said complainant and that his act is voluntary without just cause or excuse, but he admits that there is no reasonable hope or expectation of a reconciliation, as will be more fully hereinafter shown.\\\"\\nThe case was heard upon those pleadings, and at the conclusion of the evidence the chancellor signed a decree divorcing the wife a mensa et thoro from the husband and awarding her five dollars a week alimony and a ten dollar counsel fee. The appeal from that decree presents as the only issue in the case the question whether the evidence establishes the wife's charge of desertion.\\nThe evidence fails to show under what circumstances the parties first separated, but does show that after the dismissal of her first bill the appellee offered to resume cohabitation with her husband, and that he refused the offer, apparently on the ground that it was not made in good faith.\\nSince his marriage, Backus has lived with his mother, Mrs. Emma Backus, who conducts a delicatessen business in the Cross Street Market in Baltimore. In that home, at the time the appellee left it, there lived also Mrs. Grant, her husband's sister and her husband; and after the appelle left, Mrs. Webb, Mr. Grant's sister, moved in. The relations between the appellee and the Backus family were in no sense harmonious, and it is not open to question that the elder Mrs. Backus definitely decided that she did not want the younger Mrs. Backus in her home.\\nA few days after the termination of the first suit the appellee wrote her husband a letter, in which she said in part:\\n\\\"You are undoubtedly aware of the fact that our case has been dismissed in the Circuit Court by Judge Stein, and I have been advised by him that it is your duty to support me. To day I received a money order of five dollars, and I want to call your attention to the fact, first you are back in your payments under court order; secondly five dollars will not support me. I am not working unable to work and it is necessary for me to feed myself, and provide a room but it is up to you to do the right thing and provide a home in which I can live with you as a married woman should. I am asking you now to provide a home for me where I can live peacefully and without arguments. If you are willing to do this, I want to hear from you at once.\\n\\\"There should be no reason for me to go to Court to compel you to support me. You married me and it is your duty to provide a home for me as.every married man should, and support me. You have no reason for not providing this home and I am sure that if we get away to ourselves, we can get along alright.\\\"\\nReceiving no reply she went to the filling station where her husband.was employed and, to quote her testimony: \\\"I waited until he got off from work and rode up to his house with him in the machine. He told me then I was not going to go in the house. I said, T am, if you are going there, I am going back with you,' and when I got there his mother, sister and brother-in-law were at the door. His mother told me she did not want me on the grounds, it was her house and I could not put my foot on it. I stayed there until about half past eleven that night, trying to get my husband to make up with me and come to some conclusion. He went in the chicken shed and I don't know where he disappeared from there. It started to rain and I went on home. Q. On that occasion did you have your clothes with you, A. Yes, sir.\\\"\\nReferring to the same occasion Backus testified:\\n\\\"Q. And Mrs. Backus has testified that she came to the oil station on Pennington Avenue and asked that you take her back, is that correct? A. No, sir. Q. Did she come to the oil station? A. Yes, sir. Q. Didn't you, as a matter of fact, get in your machine and drive your wife home? A. She would not get out. Q. What did she tell you why she would not get out? A. She wanted to go up home. Q. When you got up to the house was your mother there at the house? A. Yes, sir. Q. Did your mother have any conversation with Mrs. Backus? A. No, sir. Q. Where were you, did you go directly in the house? A. No, sir. Q. Where did you go? A. Stayed outside. Q. You stayed outside where, did you sit in the car with her? A. No, sir. Q. Where did you go? A. Just stayed outside. The Court: Whereabouts outside? The Witness: I stayed out about an hour and it started to rain and I went in the shed. Q. Why didn't you go in the house? A. No, sir. Q. Why didn't you go in the house? A. The door was locked. Q. The door was locked? A. Yes, sir. Q. Now, Mrs. Backus wrote you that letter about going back together again? Did you answer it? A. No, sir. Q. You received a letter from me that has been read here in court. Did you answer that? A. No, sir.\\\"\\nMrs. Emma Backus, speaking of the same incident, said: Didn't she, as a matter of fact, come down to the house and you told her to get off the premises? A. She came with my son and I didn't want her, no. Q. And you told her to get off the premises? A. No, I didn't say that. I let the door closed because I was afraid to open the door.\\\"\\nThe same witness, referring to the occasion on which the appellee left her home prior to the first suit, said: \\\"I was in the hen house one day and she started an argument but I never answered her and she says, 'Well, there is nothing too low for me to stoop and whenever I pull out I will make it hot for him'. I said, 'Is that so ?' And she said, 'Yes, indeed,' and out she went. Q. Because of that threat she made, you refused to let her come into the house, is that right? A. Yes, sir, she caused too much disturbance.\\\"\\nBackus explained his wife's visit to him at the filling station as an effort to get money. He said that when she came, she told him, \\\"Here I am, I ain't going to go until I get money,\\\" and that he replied \\\"I don't see why I have to give you money, you ain't got anything on me.\\\" He also testified that on that occasion she waited for six hours at the filling station before he drove her to his mother's home.\\nThe appellee denied that she spoke of money at that time, and while it appears that Backus did contribute to her support, it also appears that his contribution was \\\"under a court order.\\\"\\nBackus was not called as a witness on his own behalf, but was called by the appellee and cross-examined by his own counsel. Neither in the course of that examination, nor from any other source, was there the slightest evidence that he was willing to resume cohabitation with his wife, while she on the other hand, after having said that she preferred to live away from her husband's family, when asked by the court \\\"Suppose his circumstances do not make it possible for him to live elsewhere and he provided a couple of rooms for you there and gave you a reasonable amount of privacy, would you live there with him?\\\" answered, \\\"Yes, your Honor.\\\"\\nSummarizing this testimony and the record admissions, it appears that Backus and his wife separated under circumstances which the court in the first case found insufficient to charge him with desertion; that following that decision, Mrs. Backus, the appellee, made repeated efforts to effect a reconciliation, but that Backus repulsed those efforts, failed to provide her with a home of any kind anywhere where she could live with him, that when she attempted to join him in his mother's home, the door, with his acquiescence, was shut in her face, and that, while he did contribute to her support, he did so under the compulsion of judicial process, that she is willing to resume cohabitation with him under any reasonable conditions, but that he is unwilling to live -with her under any conditions. Under those circumstances the decree of the chancellor that he had deserted her was not only just and sound, but inevitable.\\nIn support of that somewhat obvious conclusion it is only necessary to cite Kirkwood v. Kirkwood 165 Md. 547, 170, A. 180, 182, in which Judge Parke, speaking for this court, said: \\\"It is undoubtedly true that, if one spouse leaves the other without cause, as in the present instance, and repents and proposes to renew the cohabitation, and that other refuses, it constitutes desertion by the one refusing from the time of the refusal, provided the offer to return is made in good faith, and is free from improper qualifications and conditions, and is really intended to be carried out in accordance with the performance of the duties and obligations of the matrimonial cohabitation. McClees v. McClees, 162 Md. 70, 74, 75, 158 A. 349; Simmont v. Simmont, 160 Md. 422, 432, 153 A. 665; Wise v. Wise, 159 Md. 596, 598-600, 152 A. 230.\\\" And Lynch v. Lynch, 166 Md. 300, 170 A. 764, 765, where Judge Urner, announcing the opinion of the court, said: \\\"The charge of desertion of the wife by the husband is sustainable upon the evidence in this case because it proves the unwillingness and refusal of the husband, without justification, to continue or renew their normal marital relationship. Tarr v. Tarr, 164 Md. 206, 164 A. 543; Simmont v. Simmont, 160 Md. 422, 153 A. 665; Downs v. Downs, 154 Md. 430, 140 A. 831; Barnett v. Barnett, 144 Md. 184, 125 A. 51; Heinmuller v. Heinmuller, 133 Md. 491, 105 A. 745; Muller v. Muller, 125 Md. 72, 93 A. 404; Buckner v. Buckner, 118 Md. 101, 84 A. 156; Taylor v. Taylor, 112 Md. 669, 77 A. 133.\\\"\\nThe contention that the offer of the appellee to resume cohabitation was not made in good faith finds no support in the evidence, and is flatly contradicted by the established facts. Certainly there could be no better evidence, not only of her willingness to resume cohabitation but of her determination to live with her husband, than is afforded by the undisputed evidence that she waited for six hours at his place of work in order to return with him to his mother's home, where he lived, and that she waited from shortly after six o'clock in the evening until nearly midnight, and until driven away by rain, for the door of that home to be opened. Certainly that very real and deliberate attempt to return to the home of her mother-in-law, which was also her husband's home, notwithstanding their ill will and dislike for her, furnishes striking testimony of the good faith of her offer to resume cohabitation.\\nAt the same time the attitude of the husband towards his wife is demonstrated by his own admissions that, instead of asking that his wife be admitted to the home, he withdrew into a chicken shed to await developments, and apparently staid there until she finally left, that when she asked him for money for support, he told her that \\\"I don't see why I have to give you money, you ain't got anything on me,\\\" and that when she had told him that where \\\"his home was she was intended to reside,\\\" that he neither answered her letter offering to resume cohabitation, nor accepted her oral offer, that she was not allowed to occupy his mother's residence, and that he provided no other home for her.\\nIn fact the entire evidence permits no reasonable doubt that the husband's conduct was in pursuance of a deliberate policy of getting rid of an unwelcome wife, whose demands for consideration and support had become a burden, while she, either from choice or necessity, has been and is willing to resume cohabitation even though it be in a home where she knows she will not be welcome.\\nIt follows that there was no error in the decree from which this appeal was taken, and it will be affirmed.\\nDecree affirmed, with costs.\"}"
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+"{\"id\": \"2195002\", \"name\": \"HORN ICE CREAM COMPANY et al. v. FANNIE BELLE YOST\", \"name_abbreviation\": \"Horn Ice Cream Co. v. Yost\", \"decision_date\": \"1933-01-12\", \"docket_number\": \"No. 65\", \"first_page\": \"24\", \"last_page\": \"35\", \"citations\": \"164 Md. 24\", \"volume\": \"164\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:47:34.912358+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bond, C. J., Pattison, Urner, Adkins, Offutt, Digges, Parke, and Sloan, JJ.\", \"parties\": \"HORN ICE CREAM COMPANY et al. v. FANNIE BELLE YOST.\", \"head_matter\": \"HORN ICE CREAM COMPANY et al. v. FANNIE BELLE YOST.\\n[No. 65,\\nOctober Term, 1932.]\\nDecided January 12th, 1933.\\nThe cause was argued before Bond, C. J., Pattison, Urner, Adkins, Offutt, Digges, Parke, and Sloan, JJ.\\nDaniel 8. 8uJlivan, with whom was James J. Carmody on the brief, for the appellants.\\nCharles D. Moylan and J. Warren Burgess, for the appellee.\", \"word_count\": \"3843\", \"char_count\": \"21241\", \"text\": \"Offutt, J.,\\ndelivered the opinion of the Court.\\nThis appeal is from a judgment of the Court of Common Pleas of Baltimore City, affirming' an award of the State Industrial Accident Commission of Maryland in favor of Eannie Belle Tost, claimant, against Horn Ice Cream Company, employer, and Union Indemnity Company, insurer, allowing the claimant compensation for the death of her son, George W. Tost, on the theory that it was caused by an accidental personal injury arising out of and in the course of his employment by Horn Ice Cream Company.\\nTost, at the time of the accident, was employed as a helper on the employer's ice cream delivery truck. On June 13th, 1929, the truck was at Halethorpe, Maryland, and Tost, in the course of his employment, alighted from it as it was turning, and while he was near it an ice cream tub or freezer fell from the top of the truck and struck him. The important question presented by the appeal is whether there was in the case admissible evidence legally sufficient to show that his death was due to injuries caused by that accident.\\nOn August 9th, 1929, the employer filed, with the commission its \\\"First Report of Injury,\\\" in which it stated: \\\"Employee alighted from truck, as truck was turning, tub fell off top of truck, striking employee left shoulder and leg\\\"; that the injury occurred in the course of the employment'; that it provided medical attention on the day of the accident; and that it had been notified of the accident by the injured employee.\\nFannie Belle Yost, after giving testimony sufficient to establish the fact, which is not disputed, that she was partially dependent upon her son, the injured employee, for support, testified that on the night of the day of the accident her son was brought home from the hospital, and \\\"I seen him when he came home he was crippled and he said the tub had hit him and came down on the side of his head, down on his shoulder, down his hip and on down to his leg and knocked him down he said 'I was knocked out' \\\"; that the next morning he was \\\"suffering with his neck\\\"; but that he insisted on going to work; that on the night after the' accident he told her that the \\\"leaders of his neck were hurting him and his shoulder\\\"; that he said he had a pain in his head \\\"like a headache\\\"; that he complained of headaches every day after that and \\\"everything in his neck and shoulder\\\"; that from the date of the injury until she took him to the hospital she noticed that he was \\\"giddy, flighty like in his head\\\" and when he \\\"would go out of the door he would pull on his coat and run out fast\\\"; that before the accident he never complained of headaches, he was never afflicted with giddiness, he was a \\\"hardy strong boy\\\" in good health; that throughout she bathed and rubbed him with hot water, chloroform liniment, that she besought him not to go to work, but that he said that his \\\"boss needed him\\\" and that he continued to work until the day before he died. \\\"That when he w\\u00e1s brought home that day and the doctor gave him his medicine, she saw that he was flighty in the head. That he didn't talk as usual, seemed to be out of his mind. That he was conscious, but like something bothered him in his head, and he told her the doctor said to> give him the medicine every two hours and he went to bed, and she put an ice bag on top of his head as the doctor ordered, and she gave him water and he responded to his medicine every two hours all night and she thought he was improving, and the next morning, about ten o'clock, she thinks half past nine, she had given him his medicine and just about ten o'clock or few minutes after he whirled over in the bed and he looked at her and he went over in convulsions, that she went out of th\\u00e9 room and got some help, and Ho. 6 Engine House man. saw her and they got the municipal ambulance and took him to the hospital.\\\" On cross-examination she added that, while her son went to work every day, he \\\"complained all month,\\\" and that when he came home after the accident she saw bruises on his leg and shoulder, but none on his head, but that he had said that his head was sore.\\nW. C. Stallman, driver of the truck at the time Yost was injured, knew that Yost had alighted from the truck as it was stopping, and that he was struck by an empty five-gallon ice cream freezer or tub, which fell from the top of the truck which was \\\"right high.\\\" He saw Yost being helped up from the ground and advised him to go home, but Yost insisted on finishing out the day, and the next day Yost said he was \\\"feeling pretty good.\\\"\\nJoseph Rarer testified that he was from fifty to seventy-five feet from the truck at the time of the accident and saw it happen, and that, \\\"as the truck swayed the corner, from the comer end it was not \\u2014 you could say four or five feet from the road, it came near to a stop when the tub made a swing and came down just as they say, and he saw the man and he thought it had struck him on the head, and he, witness, says, if that struck him in the head it would kill him and they went over there, and a man came up the opposite way to catch the car and he picked him up and then he, George Yost, complained about being hurt down by his hip, it glanced him and he, witness, made sure the side of the tub must have glanced his head, he, witness, was standing right there\\\"; that it took two men to put the tub upon the truck, that when they picked George Tost up he was dizzy and trembling, and \\\"that he saw the tub glance down, he could not tell where it hit him, Mr. Tost, he, witness, thought it hit him in the head; it looked like it struck him in the head and he, Mr. Tost fell. That he could not see what part of the body was hit. That he, witness, could not tell whether it hit him square in the head or a glanced blow when it came down. That he did not see any blood or scratches.\\\"\\nClarence Hoffman testified that he had an unobstructed view of the accident from a distance of about fifty feet, and \\\"that he, Mr. Tost, stepped off and a freezer rolled off the side and came down and hit him, Mr. Tost, and knocked him on the sidewalk. That a tub fell down right off the truck and hit the man and knocked the man to the sidewalk. That it looked as if the tub hit him on the top of the head. His two eyes saw the tub fall off the truck and fall on the man and it looked like it hit him on the head, as far as he, witness, could see by his sight\\\"; that after the accident Tost was \\\"crying\\\" and it looked to witness as though he were about to faint, and on cross-examination, he said that he saw the tub strike Tost, but that he did not see it strike his head, he, witness, said it struck the side of his body. That he supposes the bottom part of the tub struck his, Mr. Tost's head.\\nClarence Grace, who said that he also had an unobstructed view of the accident, testified that it appeared to him that the tub struck Tost on the shoulder and threw him to the cement pavement; that after the accident Tost appeared dizzy, was crying, and limping.\\nUpon that testimony, which he had either heard or read, Dr. Leon Freedom, a qualified physican, stated, without objection, that in his opinion Tost had not died from encephalitis lethargia, as certified in the \\\"Proof of Death\\\" by the attending physician, but from.a brain disease induced by a head injury.\\nFor the appellants, Dr. David Tenner, resident physician at Mercy Hospital, who attended Tost when he was brought to that hospital shortly before his death, described the examination and symptoms of the patient, upon which, together with the history of the case obtained from the mother, the diagnosis of encephalitis lethargia was based. He further testified that in his opinion the cause of Tost's death was encephalitis lethargia. Dr. A. C. G-illis testified that he too had diagnosed Tost's disease as encephalitis lethargia, and that there was no causal connection between \\\"an injury\\\" and that disease.\\nDr. Leon Freedom was recalled, and, after stating that he had heard the testimony of Dr. Tenner and Dr. Gillis, testified that his opinion had not been affected by their description of the symptoms and condition of the patient at the hospital.\\nThe original transcript from the Industrial Accident Commission was filed in the Court of Common Pleas on February 17th, 1931, and on May 29th, 1931, on the motion of the appellants, the case was remanded to the commission for further testimony. On that remand appellants called Henry W. Otto, an engineer of the Horn Ice Cream Company, who testified that he saw the accident, and that the tub fell and Tost fell, but he did not see the tub, which weighed about fifty pounds and was water soaked, hit Tost, that he asked Tost whether he was hurt, and he said that his leg was hurt.\\nBernard E. Ridgely, called for the claimant, said that he too saw the accident, and that he saw the tub strike Tost on the head.\\nHpon the record the appellants, contend (1) that the testimony of the claimant as to statements made to her by her son on the day of the accident concerning his injuries was improperly admitted; (2) that the testimony taken on the remand to the commission should not, under chapter 406 of the Acts of 1931, have been considered; (3) that their first and second prayers directing a verdict for the appellants should have been granted; and (4) that the court erred in modifying their third jury prayer.\\nMrs. Yost had stated that her son had told her that the tub had come \\\"down on the side of his head,\\\" and the refusal of the court to strike out that statement is the subject of the first exception. The testimony of three witnesses, Hoffman, Rarer, and Ridgely, permitted an inference that the tub had struck Yost on the head, so that, unless their testimony is to be rejected, as without probative force, it is not apparent how the ruling could have injured appellants.\\nAppellants do, it is true, assert that Rarer said that \\\"he could not tell where\\\" the tub hit Yost, and that Hoffman said that he did not see the tub \\\"strike George Yost's head,\\\" but that assertion is not supported by the record. Rarer did say \\\"he could not tell where it hit him,\\\" but he said more than that; he said, he saw the tub fall, \\\"it glanced him,\\\" \\\"he made sure the side of the tub must have glanced his head,\\\" \\\"he thought it-hit him in the head, it looked like it struck him in the head.\\\" And while Hoffman did in fact say that he did not see the tub strike Yost's head, he too said more than that. He testified that it \\\"looked as if the tub hit him on the top of the head.\\\" \\\"His two eyes saw the tub fall off the truck and fall on the man and it looked like it hit him on the head as far as he, witness, could see by his sight,\\\" that he \\\"supposed the bottom part of the tub struck his, Yost's head.\\\" Those witnesses saw the accident from a distance of from fifty to seventy-five feet, they saw the tub fall, and they \\u00bfaw it strike Yost, they could not of course at that distance see the actual contact between the tub and Yost's head, but to say that their testimony was not sufficeint to permit the inference that the tub struck Yost on the head would be mere quibbliiig. And the testimony of Ridgely, taken before the commission on the remand, who was from fifteen to twenty feet from the truck, is positive and unequivocal that the tub hit Yost on the side of the head and knocked him down.\\nBy the express mandate of the statute, Code, art. 101, sec. \\u2022 10, the commission in its investigation of claims is not bound by the \\\"usual common law or statutory rules of evi dence,\\\" but may make tbe investigation in suck manner as in its judgment is best calculated to ascertain tbe substantial rights of the parties, and to carry out justly the spirit of the article. In view of the informal nature of the proceeding under the act, and of the fact that the commissioners are not required to be trained in the law, the freedom of action thus allowed is not only wise, but, in the interest of speedy and substantial justice, unavoidable, but the difficulty has been to define its limits. That there must be limits to the discretion which the commissioners may exercise in admitting or rejecting evidence appears inevitable, otherwise the whole administration of the article would lack the certainty which is so essential an element of our jurisprudence, and the problem has been to formulate working rules which will not violate the spirit of informality and liberality which is inherent in the article, but which will prevent the introduction of evidence which under any system of law should have little or no probative force. As pointed out by Chief Judge Bond in Standard Oil Co. v. Mealey, 147 Md. 252, 127 A. 850, 852, in dealing with that problem, courts have reached widely varying conclusions, especially in respect to the admission of evidence which at common law would be classed as hearsay. From an examination of the digests, the text-books and the decisions of courts of last resort, it cannot be said that the problem, if indeed in its nature it is susceptible of final or complete solution, has been satisfactorily solved. The most that has been done is to mark the outer limits of the discretion reposed in the commission, leaving its application within those limits to be determined by the facts of each case to which it is applied. It would be difficult to define those limits with any greater precision or clarity than was done in the case last cited, where it is stated that: \\\"We conclude that the courts are not intended to withdraw from litigants under the act all the precautions which, in the course of time, have been worked out as essentials of orderly, certain justice. And whatever foundation there may be for objections to the rule excluding hearsay in its full extent, it must be admitted that there is still a large residuum of necessary precaution embodied in it. It is to be remembered that, so far as the courts might adjudicate upon second-hand reports of a witness' direct observation, they must usually act upon statements reproduced in part only, not tested by questioning, or by an oath, and reproduced through a very fallible medium. It is by this same rule that statements reproduced at third or fourth hand are barred out. And, too, while this is one effect of relaxation of the rules to accommodate court reviews to the nature and working of the commission, it must be borne in mind that there are other effects. The rule requiring the production of a writing itself, rather than a verbal statement of its contents, for instance, is affected just as much as is the rule excluding hearsay.\\\" Applying those principles to the facts of that case, it was held that hearsay statements admitted in that case were not injurious, because the statements made to the wife and physicians of a deceased employee were reproduced by other witnesses who' heard them at first hand \\u00edrom the employee, they referred to a simple fact, and left no room for substantial misunderstanding. In Bethlehem Steel Company v. Traylor, 158 Md. 116, 148 A. 246, it was held that the admission of statements by a deceased employee to his wife as to the cause of his injury was not reversible error, because other eyewitnesses testified to the same fact. In Waddell George's Creek Coal Company v. Chisholm, 163 Md. 49, 161 A. 276, it was held that hearsay was admissible because there was little more in it than was given in the testimony of eye witnesses produced before the commission. Applying the test which controlled in those cases, that the hearsay evidence left no substantial room for misunderstanding, we find no reversible error in the ruling involved in the first exception.\\nThere is neither substance nor merit in the appellants' second point, that the evidence taken on the remand before the commission should not have heen considered. The remand was made on the appellants' own motion, no objection was made by them to the introduction of the evidence in the trial court, and it may be assumed that they themselves actually read a part of it (the testimony of Henry W. Otto) to the jury in the trial of this case in that court. Under those circumstances it is too late now for them to say that it was not properly before the court and the jury.\\nThe third point, that on the evidence the court should have directed a verdict for the appellants, requires little discussion. The prayers raising that point necessarily conceded that Yost, who was at the time twenty-one years old, was struck on the head by a water-soaked ice cream tub weighing fifty pounds falling from the top of a high truck, that it knocked him down on a cement pavement, that he was so severely injured that he was dizzy and crying, and, while he continued to work, was taken to a hospital the same day, that prior to the accident he was strong, hardy and in good health, that after the accident he complained constantly of headaches, and of pain in his neck and shoulder, was giddy, \\\"flighty like,\\\" and that when he was taken to the hospital about a month later he had a marked cyanosis, had convulsions, and on the following day he died. They also concede that in the opinion of Dr. Ereedom, an experienced and qualified physician, his death was caused by a head injury. That conclusion was contrary to the opinions of Dr. Gillis and Dr. Tenner, who said that Yost died of encephalitis lethargia. That is to say, all the physicians testified that he suffered from an encephalitis or inflammation of the brain, but Dr. Ereedom ascribed that condition to a head injury, while Drs. Gillis and Tenner ascribed it to epidemic encephalitis or encephalitis lethargia, otherwise called \\\"sleeping sickness.\\\" There is no possible ground upon which this court can reject the testimony of Dr. Ereedom, which was in without objection, and accept that of the other physicians. They all appeared before the commission, and their testimony was read to the jury, and it was within the exclusive province of that body to pass upon their credibility and the weight of their evidence. But upon the facts summarized, upon no' possible theory was the court authorized to withdraw the case from the consid eration of the jury, and we find no error in its ruling refusing the appellants' first and second prayers.\\nThe fourth point is that the court erred in modifying appellants' third prayer. As offered, the prayer read as follows: \\\"The court instructs the jury that the presumption of correctness in favor of the award and decision of the State Industrial Accident Commission is a rebuttable one, that is to say, subject to evidence tending to prove that said award is incorrect, and if the jury shall believe from the evidence that. George W. Yost died from 'sleeping sickness' and that the accident mentioned in the testimony neither caused the said 'sleeping sickness' nor contributed in the causation thereof, then the verdict shall be for the employer and insurer, appellants, and the answer to the first issue shall be 'No' and the answer to the second issue shall be 'Yes.' \\\" The court modified it by striking out the words, \\\"subject to evidence tending to prove that said award is incorrect,\\\" and granted misleading. Hnder the terms of chapter 106 of the Acts of it as modified. The words stricken out were, to say the least, 1931, as construed in Thomas v. Pennsylvania, P. Co., 162 Md. 509, 160 A. 793, the jury were limited in their consideration of the case to evidence actually taken before the commission. To have told them that the award of the commission was \\\"subject to evidence tending to prove that said award is incorrect,\\\" might have meant either that the jury were at liberty to reach a different conclusion from that announced by the commission upon the same evidence, or it may have meant that the award was subject to other and additional evidence taken before the court. And while, as a matter of law, no such additional evidence could have been offered, the jury as laymen might have been ignorant of that fact. Again, the award was not only subject to a construction of the same evidence by the jury different from that placed on it by the commission, but it was also subject to the operation of legal principles to be stated by the court and applied by the jury, which may have led to a different conclusion than that reached by the cojmmission. The words stricken out added nothing to the legal principles stated in what remained in the prayer, but rather obscured its meaning, and, in view of what remained, that omission deprived the appellants of no benefit which the prayer as originally offered would have given them. There was, therefore, no error in the rulings involved in the refusal of appellants' third prayer as offered, and its allowance as modified by the court.\\nSince we have discovered no error in the rulings involved in the appeal, the judgment appealed from will be affirmed.\\nJudgment affirmedwith costs.\"}"
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+"{\"id\": \"2199091\", \"name\": \"GEORGE L. HOPPER, Administrator, v. J. THOMAS C. HOPKINS, JR., et al.\", \"name_abbreviation\": \"Hopper v. Hopkins\", \"decision_date\": \"1932-04-28\", \"docket_number\": \"No. 60\", \"first_page\": \"448\", \"last_page\": \"453\", \"citations\": \"162 Md. 448\", \"volume\": \"162\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:32:01.685864+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE L. HOPPER, Administrator, v. J. THOMAS C. HOPKINS, JR., et al.\", \"head_matter\": \"GEORGE L. HOPPER, Administrator, v. J. THOMAS C. HOPKINS, JR., et al.\\n[No. 60,\\nJanuary Term, 1932.]\\nDecided April 28th, 1932.\\nThe cause was argued before Bond, O. J., Pattison, TIrner, Adkins, Oeetttt, Dtgges, Parke, and Sloan, JJ.\\nA. Freeborn Brown, for the appellant.\\nJ. Glasgow Archer, Jr., with whom were Tydings, Levy & Archer on the brief, for the appellees.\", \"word_count\": \"1600\", \"char_count\": \"9510\", \"text\": \"Pattison, J.,\\ndelivered the opinion of the Court.\\nGeorge L. Hopper, the appellant, and one of the administrators of Peter Leslie Hopper, on October 13th, 1931, filed his petition against the appellees, J. Thomas C. Hopkins, Jr., and the Cecil Rational Bank, charging them with concealing certain assets of the estate of Peter Leslie Hopper, deceased. Accompanying the allegation of concealment of those assets is the statement or allegation, as shown by the third administration account passed by the court, that certain stocks, bonds, and securities, specifically named therein, belonging to the estate of Peter Leslie Hopper, deceased, were in the possession of the appellees.\\nThese stocks, bonds,.and securities, etc., as alleged in the petition, \\\"had been placed in the possession of the appellees as collateral to certain loans.\\\" The petition then alleged that the petitioner had \\\"requested and made demand\\\" upon the appellees \\\"for an accounting of said assets of said estate,\\\" but they had \\\"wrongfully refused to render an accounting of the'assets,\\\" and \\\"are concealing and retaining the said property and assets thereby depriving the said estate of assets properly belonging to it.\\\" The allegation that the appellees are concealing and retaining the property and assets of the estate was made without any allegation that the loans, which it was alleged they were giving to secure, were ever paid, thereby entitling the petitioner to the return of those assets.\\nUpon the filing of the petition an order was passed on October 2'Tth, 1931, citing the appellees to appear in court on or before the day named therein in answer to the petition, making a full disclosure of all stocks, bonds, securities, etc., in their possession belonging to the estate of Peter Lesley Hopper, deceased, and to show cause on or before the day named therein why they should not deliver to the appellant all of said stocks, bonds, and securities.\\nA demurrer and answer to the petition were filed by the appellees on December 8th, 1931, the ground of the demurrer being that the court was without jurisdiction to grant the relief prayed.\\nAmong the reasons given therefor was that it is shown by the allegation of the petition that there was no concealment of the assets of the estate within the meaning of section 252 of article 93 of the Code of Public General Laws, giving to the orphans' court jurisdiction to grant the relief therein provided.\\nThe answer in effect admitted that certain stocks, bonds, and securities had been placed with them as collateral to secure loans made to Peter Lesley Hopper, deceased, and averred that some of those bonds had been returned, others had been disposed of in connection with the payment in part of said loans, and some of them were now held as collateral for the amount still owing upon the loan. The answer set forth these facts with greater particularity than we have stated them, but we do not feel it necessary to go further than to state them as we have, as it would only prolong the opinion without serving any useful purpose.\\nBefore any action was taken upon the demurrer, the appellant filed his second petition, in which he alleged the passage of the order upon the petition of October 18th, 1931, requiring the appellees to account for certain assets of the estate which the appellees were charged with concealing. It is further alleged that on the 8th day of December, 1931, the appellees filed their joint demurrer to the petition and \\\"also their answer with an account that in no sense meets the requirement or spirit of.said order of court, nor does it give the administrators the information as to the assets beilonging to said estate as set forth in said petition and affidavit, and required under said order of court.\\\" A motion was then made therein by which the court was asked \\\"to overrule said demurrer1 and to pass an additional order requiring said Cecil National Bank and J. Thomas C. Hopkins, Jr., to show cause if any they have on or before December 22nd, 1931, why they should not be required to account for and turn over to the administrators of said Hopper's estate\\\" the specific assets named therein, as well as in tile original petition. On the 22nd day of December following, the court passed its order overruling the appellant's motion and sustaining the appellees' demurrer to his petition. It is from that order of the court that the appeal in this case is taken.\\nThe petition was filed under section 252 of article 93 of the Code, which provides: \\\"If an administrator shall believe that any person conceals any part of his decedent's estate he may file a petition in the orphans.' court of the county in which he obtained administration, alleging such concealment, and the court shall compel an answer thereto on oath; and if satisfied upon an examination of the whole case that the party charged has concealed any part of the personal estate of the deceased, may order the delivery thereof to- the administrator, and may enforce obedience to' such order by attachment, imprisonment or sequestration, of property.\\\"\\nIt is the contention of the appellees that the retention by them of the alleged assets of the estate, now held as collateral, to secure what remains unpaid of the loan, is not a concealment of assets within the meaning of the statute.\\nThe jurisdiction of the court to proceed under the above-mentioned section of the- Code is founded exclusively on the allegation of concealment. Taylor v. Bruscup, 21 Md. 219. Without such allegation, the orphans' court has no jurisdiction, but the charge of concealment does not confer jurisdiction upon the cofurt where it is shown by other allegations of the petition that no concealment exists; nor has the court jurisdiction where the defendant by his answer admits possession of the assets, but sets up title in himself, for in all such cases there is no question of concealment to be passed on. Linthicum v. Polk, 93 Md. 84, 48 A. 842; Gibson v. Cook, 62 Md. 256. If there be no concealment or if the question of title is raised, the administrator can institute an action in one of the courts having jurisdiction over such controversy and have it regularly tried there. Linthicum v. Polk, supra.\\nSection. 271, article 93 of the Code, especially provides that \\\"the orphans' court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred by law. \\\" It will thus be seen that the orphans' court is a court of.limited and not general jurisdiction, and can only exercise such jurisdiction as has been expressly conferred upon it by statute. Fowler v. Brady, 110 Md. 204, 73 A. 15.\\nIt was said by our predecessors in Taylor v. Bruscup, supra:\\n\\\"The argument of the appellee, that the word 'conceal' is manifestly the synonym of withholding, is not sustained by any lexicographer we have consulted, or the popular sense of the term. Secrecy is an essential ingredient of the act of concealment. 'To hide or withhold from observation, to cover or keep from sight,' are the meanings technically and popularly conveyed by the word 'conceal'. It can scarcely be imagined that the extraordinary power of requiring an answer upon oath, with the summary process of attachment, sequestration and commitment, were to be exercised by a court of special limited jurisdiction in every case, in which the administrator or executor should allege a third person withheld property which belonged to the estate of the deceased.\\n\\\"It was only in casos where concealment rendered the act quasi criminal, and the usual remedies at law or in equity, difficult or impossible, that this peculiar jurisdiction was granted to the orphans' courts.\\\"\\nThe petition in this case, charging the appellees with concealment of the assets of the decedent's estate1, accounts for the possession of those assets in the hands of the appellees by alleging they were placed there as collateral to- a loan, with no allegation that the loan had been paid. Until paid, the assets specifically named are rightfully in the possession of the appellees, and their holding or retention of them is not a concealment within the meaning of the statute, as defined in Taylor v. Bruscup, supra. In it is not found the essential ingredient of secrecy, nor is it shown to have been the object of the appellees to hide or withhold them from observation or to cover or keep them from sight. Their holding was a lawful one which in no sense rendered such holding quasi criminal. The fact that they were not so held is disclosed by the allegations of the petition, but, independently of the allegations of the petition, the defendants' answer admits possession of the property and sets up their right to the possession of them.\\nIn our opinion, the court was right in sustaining the demurrer to the petition and in overruling the appellant's motion requiring the appellees to account for and to turn over to the appellant said assets of the decedent's estate, as the court was shown to be without jurisdiction to grant- the relief sought. The order appealed from will be affirmed.\\nOrder affirmed, with costs.\"}"
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diff --git a/md/2238548.json b/md/2238548.json
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+"{\"id\": \"2238548\", \"name\": \"AGNES M. BEACH v. WOODWARD & LOTHROP, INC.\", \"name_abbreviation\": \"Beach v. Woodward & Lothrop, Inc.\", \"decision_date\": \"1973-08-15\", \"docket_number\": \"No. 797\", \"first_page\": \"645\", \"last_page\": \"650\", \"citations\": \"18 Md. App. 645\", \"volume\": \"18\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:36:07.595020+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Thompson, Powers and Menchine, JJ.\", \"parties\": \"AGNES M. BEACH v. WOODWARD & LOTHROP, INC.\", \"head_matter\": \"AGNES M. BEACH v. WOODWARD & LOTHROP, INC.\\n[No. 797,\\nSeptember Term, 1972.]\\nDecided August 15, 1973.\\nThe cause was argued before Thompson, Powers and Menchine, JJ.\\nRex L. Sturm, with whom were Brown & Sturm on the brief, for appellant.\\nFrancis X. Quinn for appellee.\", \"word_count\": \"1445\", \"char_count\": \"8246\", \"text\": \"Powers, J.,\\ndelivered the opinion of the Court.\\nAgnes M. Beach filed suit in the Circuit Court for Montgomery County against Woodward & Lothrop, Inc., claiming damages for injuries she alleged she sustained in a fall on an escalator in the defendant's department store.\\nThe case went to trial before a jury and ended at the close of the plaintiff's evidence when the trial judge granted the defendant's motion for a directed verdict.\\nMrs. Beach appealed from the judgment thereafter entered against her. She complains that the court did not apply the proper principles of law in ruling on the motion, and that a previous interlocutory ruling on her motion for discovery of documents was erroneous.\\nAppellant testified that on 22 February 1972 she went to the Wheaton Plaza store of Woodward & Lothrop, Inc., in the company of her daughter, her small granddaughter, and another young woman. After doing some shopping on a lower level, she wanted to go to an upper level, and took an escalator. Her granddaughter was with her. The other two women were near the bottom of the escalator. Appellant's entire case stands or falls on these words in her testimony:\\n\\\"I went up half way and the thing stopped still. It gave a jerk and it threw me backwards.\\\"\\nA moment later in her testimony appellant again described what happened:\\n\\\"I had my hand on the banister going up and the thing stopped. I stood there and all of a sudden it made a jerk and threw me backwards.\\\"\\nWhen asked about the period of time the escalator was stopped, she said:\\n\\\"I would say it was for a second or two. It just stopped and stood there and all of a sudden it jerked and threw me backwards.\\\"\\nAppellant's daughter, Frances Merson, said that they were walking toward the escalator. She said, \\\"my mother and my daughter was on the escalator and fell\\\". It came to her attention when her little girl screamed. The escalator was moving. She grabbed her daughter off and went back to help her mother up. At that time a saleslady stopped the escalator. Mrs. Merson identified a description of the event handwritten by her which said:\\n\\\"Mrs. Agnes Beach had taken the hand of my four year old daughter and had stepped on the escalator and had travelled up about eight steps and as I was about to step on the escalator I heard my daughter scream and looking up I saw them falling backward.\\\"\\nKathy Ange, who lived with appellant, was near the escalator looking at a rack of blouses. She said Mrs. Merson was with her. She heard the little girl scream, and looked and saw her at the bottom of the escalator. Mrs. Beach was \\\"right up here\\\" on the escalator, falling down. It was still moving. Somebody stopped the escalator.\\nAfter the testimony of two physicians the appellant rested her case. Appellee's motion for a directed verdict was granted.\\nIn Buchanan v. Galliher and Harless, 11 Md. App. 83, we said at page 87:\\n\\\"When a trial court is called upon by a motion for a directed verdict to rule upon the legal sufficiency of the evidence to require submission of any issue to a jury, the court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made\\nIn Armstrong v. Johnson Motor Lines, 12 Md. App. 492, we said at page 499:\\n\\\"At that stage of a case when it cannot be said that everything relative to it is known, an inference of negligence, deducible from . the facts and circumstances, may be permitted under the doctrine of res ipsa loquitur, and may aid the ' plaintiff in making a sufficient prima facie showing to survive a motion for directed verdict. If the unknowns are not later supplied, that same inference may be considered by the jury in determining whether the defendant was negligent. If, on the other hand, later evidence supplies facts in place of the unknowns, the jury no longer needs the aid of an inference to weigh the credibility of those facts, and to determine whether the facts which it accepts do or do not amount to negligence.\\\"\\nA clear and excellent discussion of res ipsa loquitur is contained in Blankenship v. Wagner, 261 Md. 37, where Judge Finan said for the Court, at page 42:\\n\\\"In order to invoke the doctrine of res ipsa loquitur in Maryland certain circumstances must be shown by the evidence. First, it must appear that the accident was of such a nature that it would not ordinarily occur without the- defendant's negligence. Williams v. McCrory Stores Corp., 203 Md. 598, 601, 102 A. 2d 253 (1954); Cf. Short v. Wells, 249 Md. 491, 496, 240 A. 2d 224 (1968). Second, the plaintiff must demonstrate that the apparatus or instrument which caused the injury was in the defendant's exclusive control. Smith v. Kelly, 246 Md. 640, 644, 229 A. 2d 79 (1967). The third element is that it must appear from the evidence that no action on the part of the plaintiff or a third party or other intervening force might just as well have caused the injury. Johnson v. Jackson, 245 Md. 589, 593, 226 A. 2d 883 (1967); Joffre v. Canada Dry, 222 Md. 1, 9, 158 A. 2d 631 (1960); Hickory Transfer Co. v. Nezbed, supra, at 263. Cf. Restatement (Second) of Torts, \\u00a7 328D (1965). Our statement of the law is in accord with the prior decisions of this Court, and when applied to the case at bar supports the appellant's contention that the directed verdict should not have been granted.\\\"\\nWe think the principle applies here. It is a rational inference that escalators do not ordinarily stop, then start up with a jerk, without negligence. It is equally rational that the escalator in appellee's department store was in its exclusive control. There was no evidence that appellant's fall was caused by her own negligence or by any intervening force.\\nAs the Court of Appeals said in Potts v. Armour & Co., 183 Md. 483, at page 487:\\n\\\"Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.\\\"\\nIf we assume, as we must, the truth of appellant's testimony, and add to it the inferences which we conclude are rational ones under the circumstances, then appellant's evidence made out a prima facie case. The Court of Appeals said in Leidenfrost v. Atlantic Masonry, 235 Md. 244, at page 250:\\n\\\"While we have said the burden of proof does not shift, nevertheless if the plaintiff has made out a prima facie case the defendant has the duty of going forward with the evidence to explain or rebut, if he can, the inference- that he failed to use due care.\\\"\\nWhether a jury would accept appellant's testimony as credible, in the face of the fact that neither of her two adult companions, both standing near the bottom of the escalator, was aware that it stopped and started up again, and in the further light of whatever explanatory evidence may be offered by the appellee, is a question for the jury, not the courts, to decide.\\nIt was error to grant the directed verdict.\\nAppellant complains that appellee was not required to produce copies of statements made to appellee after the accident by two employees. One was a service manager who assembled information and the other was a saleslady who saw the accident. The names of both were supplied to appellant in answers to interrogatories, and appellant took the depositions of both. Whatever knowledge they had was fully available to appellant. No good cause was shown why the statements themselves should be produced. Hawk v. Wil-Mar, Inc., 210 Md. 364, 373-374. It was not error to deny production of the statements.\\nJudgment reversed and case remanded for a new trial.\\nAppellee to pay costs.\"}"
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+"{\"id\": \"2240946\", \"name\": \"EDWARD A. De WATERS v. F. LAMAR MERGLER\", \"name_abbreviation\": \"De Waters v. Mergler\", \"decision_date\": \"1944-11-02\", \"docket_number\": \"No. 21\", \"first_page\": \"574\", \"last_page\": \"582\", \"citations\": \"183 Md. 574\", \"volume\": \"183\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:48:03.192419+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Marbury, C. J., Delaplaine, Collins, Grason, Melvin, Bailey, Capper, and Henderson, JJ.\", \"parties\": \"EDWARD A. De WATERS v. F. LAMAR MERGLER\", \"head_matter\": \"EDWARD A. De WATERS v. F. LAMAR MERGLER\\n[No. 21,\\nOctober Term, 1944.]\\nDecided November 2, 1944.\\nThe cause was argued before Marbury, C. J., Delaplaine, Collins, Grason, Melvin, Bailey, Capper, and Henderson, JJ.\\nPhilip S. Ball, with whom was James J. Lindsay on the brief, for the appellant.\\nA. Freeborn Brown and Lester H. Crowther, with whom was Edward L. Parlett on the brief, for the appellee.\", \"word_count\": \"2546\", \"char_count\": \"14219\", \"text\": \"Capper, J.,\\ndelivered the opinion of the Court.\\nThe appellee obtained a judgment upon a suit in assumpsit in the Baltimore City Court against the appellant in the sum of ten hundred thirty-eight dollars and six cents, from which appellant appeals.\\nThe case originated in the Circuit Court for Harford County, Maryland, and was removed to the Baltimore City Court. The declaration alleged that appellee, a duly qualified electrician, on or about October 23, 1941, was employed by Harry F. Todd, the owner of a large building on the Philadelphia Dual Highway in Baltimore County, to furnish the materal and labor for electric wiring and electric fixtures in said building, which he was then converting into a restaurant and cafe, called at the time of the filing of the declaration, \\\"The English Supper Club, Inc.\\\"; that appellee completed this work on July 20, 1942, at which time there was due and owing the amount claimed; that in the early part of August, 1942, appellee met appellant in Havre de Grace, Maryland, and informed him that he was going to file a mechanics's lien for said sum; whereupon, the appellant stated that he had then completed incorporation of The English Supper Club, Inc., and was its president and if appellee would forego filing any mechanic's lien against the said property, that he, appellant, would assume the payment of said claim, in consideration of which said promise, appellee did forego filing a mechanic's lien against the property which he had a right to do at said time, but the appellant failed to pay said claim. Appellant filed the general issue pleas to this declaration.\\nThe appellee testified in his own behalf that he had done the work as set forth in the declaration on a verbal agreement and he was to make his profit on the time and on the materials. He made up a statement showing the balance due, which was filed with the declaration. Some payments were made to him during the course of the work. He did the work in a good and workmanlike condition and no question was ever raised as to that. He further testified that in the early part of August, 1942, between seven-thirty and eight o'clock, he met appellant on the corner of Washington and St. Clair Streets in Havre de Grace while talking with Albert L. Girard, who had a similar claim against Todd;, that appellant came up to them and inquired what their conversation was about and was informed that they were talking about filing a mechanic's lien against The English Supper Club, that they did not bell appellanb the amount of the claims as they assumed he already knew that. The conversation further proceeded as follows:\\n\\\"Q. What did Mr.- De Waters say about the bill? A. Mr. De Waters said, don't file a mechanic's lien, I've got a lot of money tied up in the place and we may not be able to get a liquor license, we have just been incorporated, and he said, if you don't file your mechanic's lien I'll personally take care of your and Mr. Girard's accounts.\\n\\\"Q.'What, if anything else did Mr. De Waters say? A. He said he had fifty thousand dollars tied up in the place. \\u2022\\n\\\"Q. In what place? A. In the English Supper Club.\\n\\\"(The Court) What did you tell him? A. I told him we wouldn't file a mechanic's lien, which we didn't.\\\"\\nAppellee further testified that he knew he had six months in which to file a mechanic's lien and on the occasion of his talk with appellant as above detailed, he still had approximately five months left. He admitted he had never discussed the matter with appellant again and that after appellant failed to pay the claim he put it in the hands of his attorney.\\nHe testified he knew Todd owned the English Supper Club and learned he had paid around twenty thousand dollars for it; that Todd was enlarging and altering the red brick building that stood on the premises.\\nAppellee's testimony was corroborated by that of Albert L. Girard, a plumber who had done the plumbing work in the English Supper Club. His testimony concerning the conversation as to payment was practically the same as that of appellee. He said in response to a question:\\n\\\"A. That we were discussing the \\u2014 about the payment of the money for the work that had been performed on the English Supper Club and that we were arranging, Mr. Mergler and myself, were arranging to have a mechanic's lien gotten out and that at that time Mr. De Waters said not to do anything like that, that he would personally take care of our bills, Mr. Mergler's and myself, and we agreed to go along with him for a reasonable time.\\\"\\nThere was no time stipulated when the bill was to be paid. The witness, however, testified that appellant said they were, just incorporated or incorporating The English Supper Club, and that \\\"if we filed a mechanic's lien at this time it would cause him injuries and possibly cause him to lose the chance of obtaining a liquor license; that he was very heavily indebted \\u2014 Mr. Todd was very heavily indebted to him for a large sum, and I asked Mr. De Waters how much money he had in it and he said about fifty thousand dollars.\\\"\\nMiss Elizabeth Hughes, who did general office work for Albert L. Girard from July, 1942, until May, 1943, testified over objections, that some time in the fall of 1942, Mr. De Waters met Mr. Girard in the latter's office and stated \\\"that I'll see to it that you, speaking of Mr. Girard and Mr. Mergler, will get your money.\\\"\\nThe appellant did not testify himself and produced no evidence on his behalf.\\nThe appellant contends that appellee's evidence was insufficient to make out a case which was enforceable under the Fourth Section of the Statute of Frauds because the promise to pay appellee's claim was an oral one and was not supported by a sufficient consideration. He says there was a failure of consideration for the promise to pay because it was not shown that Todd was the owner of the property or that it was improved to one-fourth of its value.\\nThere was positive evidence that when the contract for furnishing the fixtures was made, Todd was the owner of the property and that the work was all performed and completed as aforesaid.\\nAppellant cited the case of Thomas v. Delphy, 33 Md. 373, 379, to the effect that a promise to pay the debt of a third person upon consideration of forbearance to file a lien, must be in writing unless clearly shown that the promise was made for the sole benefit of the promisor and not for the third person, and for a new consideration moving from the creditor to the promisor. The evidence abundantly shows that appellant when he made the promise to pay. this debt was heavily interested in The English Supper Club. He stated that he had fifty thousand dollars invested in it and that the filing of a mechanic's lien might prevent him from getting -a liquor license. Considering the necessity of having a liquor license in order to be able to successfully operate such a club as this, it seems to us that it was a valuable consideration to appellant for appellee to forego filing the mechanic's lien and that this was an original promise to pay which does not come within the Statute of Frauds.\\n' It is said in American Jurisprudence, vol. 49, p. 426, sec. 74, that:\\n\\\"The purpose of the provision of the statute of frauds which requires a promise to answer for the debt, default, or miscarriage of another to be in writing was not to effectuate, but to prevent wrong. Cases sometimes arise in which, although a third party is the primary debtor, the promisor has a personal, immediate and pecuniary interest in the transaction, and is therefore, himself a party to be benefited by the performance of the promise. In such cases the reason which underlies and which prompted this statutory provision fails, and the courts will give effect to the promise.\\n\\\"Although a promise is in form one to pay the debt of another and the performance thereof may incidentally have the effect of extinguishing the liability of another, if the main purpose and object in making the promise is not to answer for another, but directly to subserve the interest of the promisor, the promise is not within the statute. The theory is that if the promisor is himself acquiring property or other pecuniary benefit, he is engaging to pay not the debt of another, but his own.\\\"\\nTo the same effect is the case of Small v. Schaefer, 24 Md. 143, 161, where it is said: \\\"Wherever the main purpose and object of the promisor, is not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise, to pay the debt of another.\\\" Also Little v. Edwards, 69 Md. 499, 16 A. 134; Oldenburg & Kelley v. Dorsey, 102 Md. 172, 62 A. 576; Bowen v. Tipton, 64 Md. 275, 1 A. 861; and East Baltimore Lumber Company v. Israel Congregation, 100 Md. 125, 127, 59 A. 180.\\nIt is argued further on the part of the appellant that there is no showing that the mechanic's lien is a valid one because it is not definitely shown that the property was repaired or improved to the extent of one-fourth of its value. We do not believe, in view of the peculiar circumstances of this case, that it was a necessary prerequisite of recovery for appellee to show that the lien was a valid one. The consideration relied upon by appellant was not so much the validity of the lien as it was the very fact that filing any lien would prejudice his efforts to obtain a liquor license. It may be assumed, we think, from the record, that appellant knew the amount of appellee's claim and also knew the value of the property when the contract for its improvement was made. He knew that he had $50,000 in the property and must have known at the time of his promise that appellee had the right to file a valid mechanic's lien. Certainly, the time for filing the lien had not expired when the promise to pay was made and appellee could have filed a lien even though for some reason it might in later legal proceedings be declared invalid. The consideration to appellant was the fact that the appellee in return for the agreement to pay his claim, agreed to and did in fact forego his right to file the lien. According to appellant's statement, the filing of a lien would have injuriously affected his application for a liquor license. The main purpose of the promise of appellant was not to answer for the' debt of Todd, but to remove all obstacles to the granting of a liquor license to the English Supper Club in which he was vitally interested.\\nThere is nothing in the case to show the lien was invalid and in this respect we think it is not controlled by the case of Dipaula v. Green, 116 Md. 491, 82 A. 205. In this case it was clear that Dipaula had no legal right to a mechanic's lien because his claim rested upon furnishing materials to erect a house in Baltimore City and by the very terms of Article 63, Sec. 1, Code of 1904, in force at that time, there was no right t\\u00f3 file any mechanic's lien in Baltimore City for materials so furnished, but only for work done in connection therewith. In the Dipaula case, it does not appear that the promisor derived any benefit or advantage for his promise to forego filing the lien.\\nAs to exceptions Nos. 1, 2, 3, and 4 concerning a conversation between appellant and Albert L. Girard in the latter's office some time in the fall of 1942, we think this evidence was properly admitted. It disclosed a direct admission on the part of appellant that he was personally liable for appellee's claim. Even though his admission included the claim of Girard, not involved in this appeal, that is no reason, it seems to us, why the admission is not admissible.\\nException No. 5 concerns the admission in evidence of the incorporation of The English Supper Club. This certificate is not included in the record and we, therefore, are unable to examine it or ascertain its date. It is not disputed that appellant was financially interested in The Supper Club both before and after its incorporation, and we cannot see how he suffered any injury by the admission of this certificate in evidence.\\nException No. 6 (erroneously referred to in the record as Exception No. 7) covers the rejection of appellant's A, B, C, and D prayers. The A prayer recited the undisputed facts proved by appellee in the case and asked the jury to find for appellant if they found that appellee gave no new consideration for the promise of appellant; that appellant derived no personal benefit from said promise; and that the promise was not made in writing. As we have pointed out, the record is conclusive, without any denial on the part of the appellant, that the new consideration moving to appellant was the fact that his application for a liquor license would not be jeopardized by the filing of any lien and that for this reason he did derive a personal benefit from his promise to pay appellee if he would withhold filing any lien against the English Supper Club. This prayer was properly rejected.\\nAppellant's B prayer was to the effect that if the jury found that appellee did not give up his claim against Todd but at the same time looked to Todd for payment, the verdict of the jury shall be for the appellant unless they shall find that the promise of the appellant was made to the appellee in writing.\\nAs we have already stated, where the promise to pay the debt of another is an original undertaking, such as this case, there is no necessity for it to be in writting. The appellant bound himself to pay by his own undertaking and without regard to whether or not appellee might be able to secure payment from Todd. This prayer was properly rejected.\\nWhat we have said in this opinion is sufficient to show that appellant's C and D prayers were rightly refused.\\nFinding no error in the record in this case, the jurgment of the lower Court is affirmed.\\nJudgment affirmed with costs to appellee.\"}"
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+"{\"id\": \"2247843\", \"name\": \"GEORGE S. ROBERTSON, JR. v. MABEL J. ROBERTSON\", \"name_abbreviation\": \"Robertson v. Robertson\", \"decision_date\": \"1947-02-06\", \"docket_number\": \"No. 52\", \"first_page\": \"560\", \"last_page\": \"566\", \"citations\": \"187 Md. 560\", \"volume\": \"187\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:40:22.258151+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE S. ROBERTSON, JR. v. MABEL J. ROBERTSON\", \"head_matter\": \"GEORGE S. ROBERTSON, JR. v. MABEL J. ROBERTSON\\n[No. 52,\\nOctober Term, 1946.]\\nDecided February 6, 1497.\\nThe cause was argued before Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ.\\nLeonard Weinberg and George L. Clarke, with whom were Weinberg and Green and George W. White, Jr., on the brief, for the appellant.\\nJohn A. Cochran with whom was Roland C. Ready on the brief, for the appellee.\", \"word_count\": \"1958\", \"char_count\": \"10999\", \"text\": \"Henderson, J.,\\ndelivered the opinion of the Court.\\nThis appeal is from a decree of the Circuit Court of Baltimore City granting a divorce, a mensa et thoro, to a wife, and awarding her the custody of the nine-year-old son of the parties. The decree also dismissed the husband's cross-bill and awarded alimony and counsel fees. The appellant contends that the evidence did not establish legal cruelty, and that he was entitled to a decree on the theory that the wife left him without sufficient cause.\\nThe parties were married in 1934, and their son was born in 1936. Apparently their life was free from serious discord until July, 1944, when the appellee testified that they had a quarrel over a letter he received from another woman, and he choked the appellee in order to force her to surrender the letter. The incident was not corroborated, and it is admitted that their relationship became normal thereafter.\\nOn Christmas eve, 1944, the appellant made a scene in his father's house over the presence there of a married man who, he claimed, was attentive to his sister. The appellant chased him out of the house, tore telephones out of the wall, and was only induced to leave when the police arrived. When he reached home, he produced a .45 automatic, and after threatening to go out and kill the alleged suitor of his sister, fired two shots into his own fireplace or mantel, in the presence of his son and guests. After unsuccessfully trying to locate the man by telephone, he finally subsided. This whole incident was fully corroborated by other witnesses.\\nIn April, 1945, the appelle's father died and the Robertsons went to Georgia to attend the funeral. The appellee remained with her mother until May 8th. Upon her return home, she met with a cool reception. A few days later a Mrs. S., a neighbor, came to dinner, and later they went to a tavern. There Robertson quarreled with the appellee and asked her how much she would take to return to Georgia and leave their son with him.\\nOn May 15th, Mrs. S. again dined with the Robert-sons, and later the trio went to the Belvedere. There Robertson asked his wife if she would consent to Mrs. S. becoming his mistress. She refused, and expressed her desire to go home. Robertson's behavior in the hotel was so disorderly that he was threatened with arrest or eviction by the house detective. After taking his wife home, he escorted Mrs. S. to her residence, where he remained for about 40 minutes. When he returned he again proposd that the appellee consent to Mrs. S. becoming his mistress.\\nOn May 19, 1945, the appellee threatened to talk to the husband of Mrs. S. \\\"if the things did not stop.\\\" Appellant asked her to go for a ride in his automobile, to talk things over. In the course of the ride he made threats to drive the car into a quarry-hole, or to take their son and leave her, if she spoke to Mr. S. She finally agreed to remain silent, but he kept seeing Mrs. S. and relations between the parties were very strained. Later in the year, while at their summer home, the appellee testified that Robertson confessed to her that he had committed adultery with Mrs. S., but \\\"we agreed we would try to forget it.\\\"\\nOn January 6, 1946, after a late party, the appellee testified that Robertson slapped her, demanded that she produce his automatic, which she had hidden, and when she refused, said: \\\"all right, then, I have a shotgun in here.\\\" During this period Robertson seldom came home to dinner, but would come home at all hours of the night. He also cut off her allowance of spending money. On February 4th, Robertson told her he wanted his free dom, and had selected a lawyer for her to see. She replied that she would select her own lawyer. A few days later he announced before guests that the \\\"partnership of Robertson and Robertson\\\" was going to be dissolved and that he \\\"was going to get [a divorce] on the ground of adultery, or else.\\\" He also implied that he expected to remarry. This incident was corroborated by one of the guests, who made it clear that the remarks were not made facetiously. Marital relations ceased shortly thereafter. On March 14th the parties had a conference at her lawyer's office. Robertson demanded a \\\"thirty-day divorce\\\" and custody of the child, and was \\\"very angry because I had not accepted and agreed to the terms that he had set forth.\\\" That night she testified that her husband pulled her hair, beat and kicked her, and told her she could no longer consider herself as his wife, that she was only a glorified housekeeper. The next day her brother and sister-in-law arrived from Georgia for a visit. When they left on the 22nd she accompanied them. On March 19th, at the husband's instance, the son was entered as a boarder in McDonogh School, to which she agreed, but stated she would return home for the boy's Easter vacation. While in Georgia she wrote her husband a rather sentimental letter, to which he did not reply.\\nThe appellee returned on April 18th, 1946. The appellant did not speak to her, except to say \\\"good afternoon\\\", until the next evening after he had taken the boy to choir practice. He then said: \\\"I purposely did not come home until this time because I had no desire to have any conversation with you at all, but there is one thing that I would like to say, that if you so much as by one word, by one act, even the change of expression on your face, or the flick of an eyelash, indicate to George while he is home these four days that there is anything wrong between you and I [sic], 1 will kill you.\\\" When she denied any intention of upsetting the child, he said: \\\"and furthermore, I shall expect to have a thorough accounting of you after I have taken George back to McDonogh on Monday night.\\\" When her husband left with the boy on Monday, April 22nd, she did not remain for the \\\"accounting,\\\" but took up her quarters elsewhere. She filed her bill on April 24th; the answer and cross-bill were filed on May 9th.\\nAbout three weeks after the appellee left, she joined her husband and son at the Preakness and had dinner with them. On May 12, 1946, they all went to the movies and dined together, and on June 2, 1946, they all went to Chapel at McDonogh School and the appellant drove her back to town and took her to dinner at a restaurant. She testified: \\\"he took me home because he wanted to try to persuade me to drop my charges, or see if we could not get together.\\\" He drove her to the place she was living around 12 o'clock. She testified she was not afraid that he would harm her on that occasion, in a public place or on well-lighted streets. The appellant stresses this incident as indicative that she was in no real fear of injury by the appellant.\\nThe financial situation of the parties was that prior to 1943 Robertson earned from $3,000 to $6,000 a year working for a life insurance company. In 1942 he went into a wood-working business for himself, and in 1943 .his income, before taxes was about $13,000. In 1945, his income was about $26,000, before taxes, although this was said to be an exceptional year. The appellee has no income of her own, but received about $7,000 from her father's estate in 1945.\\nIn the face of the appellee's testimony, the appellant did not take the stand to deny her charges in any particular, although there was a general denial in his answer. He produced no witnesses, except his son, and this was for the sole purpose of rebutting the wife's statement that the child had been chastised by him in a cruel manner, and showing that the child was happy at McDonogh and not ill-disposed towards his father. The appellant's whole defense is based on the contention that the evidence does not support the wife's charge of cruelty, and in any event, that there was a want of sufficient corroboration.\\nIt is well established by the decisions of this Court that acts which may not constitute legal cruelty in them selves, may nevertheless justify the injured spouse in leaving the marital domicile and entitle the injured party to a divorce a mensa on the ground of constructive desertion. Nicodemus v. Nicodemus, 186 Md. 659, 48 A. 2d 442; Miller v. Miller, 185 Md. 79, 42 A. 2d 915; Collins v. Collins, 184 Md. 655, 42 A. 2d 680; Fischer v. Fischer, 182 Md. 281, 34 A. 2d 455; Kruse v. Kruse, 179 Md. 657, 22 A. 2d 475. Unfounded accusations of infidelity may in themselves constitute cruelty. Poole v. Poole, 176 Md. 696, 6 A. 2d 243; Silverberg v. Silverberg, 148 Md. 682, 130 A. 325. Previous acts of cruelty or other misconduct, although condoned, may be revived by subsequent misconduct. Sensabaugh v. Sensabaugh, 186 Md. 348, 46 A. 2d 635; Hilbert v. Hilbert, 168 Md. 364, 177 A. 914, 98 A.L.R. 1347.\\nIn the case at bar the wife's story portrays a course of conduct by the husband designed to humiliate and degrade her, and his repeated threats were well calculated to put her in fear, in the light of his reckless and violent disposition. We think the wife's story was sufficiently corroborated. Where there is no danger of collusion, only slight corroboration is required. Kelsey v. Kelsey, 186 Md. 324, 46 A. 2d 627; Jones v. Jones, 186 Md. 312, 46 A. 2d 617; and Bowersox v. Bowersox, 157 Md. 476, 146 A. 266, 65 A.L.R. 165. While the violence displayed in the pistol incident was not directed towards the wife, it was revealing as to his disposition, and the statements of his intentions and veiled accusations of infidelity, made in the presence of guests, were indicative of his desire to terminate the marital relationship without regard to fault. Whether the rift was brought about by his attentions to another woman, which the wife condoned, by the intoxication of prosperity and night life, by rivalry for the affections of the child, or by other undisclosed causes, physiological or psychological, we think that the husband was the aggressor throughout. \\\"His previous conduct, though it may fall short of cruelty, falls still further short of conjugal kindness.\\\" Schriver v. Schriver, 185 Md. 227, 44 A. 2d 479, 487. If we had any doubt on this point, we would lean towards agreement with the Chancellor who heard and observed the parties and witnesses. Stritmater v. Stritmater, 187 Md. 699, 49 A. 2d 648, 654; Nicodemus v. Nicodemus, supra; Meyers v. Murphy, 181 Md. 98, 104, 28 A. 2d 861.\\nOn the question of custody, it is sufficient to observe that the Chancellor's decree provides that the child shall remain at McDonogh and for access by both parents, subject to further order of Court. No objection is raised to the amount of alimony or counsel fees allowed.\\nDecree affirmed, with costs.\"}"
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+"{\"id\": \"2254042\", \"name\": \"TILGHMAN v. FRAZER et al.\", \"name_abbreviation\": \"Tilghman v. Frazer\", \"decision_date\": \"1948-06-17\", \"docket_number\": \"No. 201\", \"first_page\": \"132\", \"last_page\": \"155\", \"citations\": \"191 Md. 132\", \"volume\": \"191\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:50:52.916610+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TILGHMAN v. FRAZER et al.\", \"head_matter\": \"TILGHMAN v. FRAZER et al.\\n[No. 201,\\nOctober Term, 1947.]\\nDecided June 17, 1948.\\nRehearing denied July 20, 1948.\\nPetition for Addition to Opinion granted October 6, 1948.\\nSupplemental Opinion filed October 6, 1948.\\nThe cause was argued before Marbury, C. J., Dela-PLAINE, GRASON, AND MARKELL, JJ.\\nHarrison Tilghman for the appellant.\\nAmos W. W. Woodcock for the appellee.\", \"word_count\": \"6448\", \"char_count\": \"36514\", \"text\": \"Marbury, C. J.,\\ndelivered the opinion of the Court.\\nThis case involves three estates, all unsettled, although the respective testators have long since died. The first two are those of Dr. Samuel A. Harrison, who died in 1890, and his widow, Mrs. Martha I. Harrison, who died in 1909. These estates are only incidentally involved. The main questions concern the estate of Mrs. Belle H. Tilghman, daughter of Dr. and Mrs. Harrison, and wife of Colonel Oswald Tilghman, who died on March 5, 1931. Both Dr. and Mrs. Harrison and Colonel and Mrs. Tilgh man resided in \\\"Foxley Hall\\\" in the town of Easton, and the disposition of this property is one of the questions involved in this case. Mrs. Tilghman left surviving her, her husband, Colonel Oswald Tilghman, who died in 1932, a son, Colonel Harrison Tilghman, appellant in this case, and a daughter, Mary Foxley Tilghman Frazer, who, with her husband, Dr. John Frazer and her three children, are the appellees. Colonel Harrison Tilghman and Dr. Frazer are the executors of Mrs. Belle H. Tilghman's estate, and each of them appears in this case, not only in his individual capacity, but also as an executor.\\nMany factors contributed to the delay in the settlement of all of these estates. They were handled entirely within the family, and like so many family matters, they were not handled with the care, particularity, and dispatch which is requisite to a proper settlement of the affairs of a decedent. After the death of Mrs. Belle H. Tilghman, difficulties and disagreements arose between the appellant on the one side and the appellees on the other. Each side accuses the other of being responsible for the delay. Each is in some measure correct. However, the matters in dispute have now been brought to a head and can be finally settled in'the case before us.\\nDr. Harrison bequeathed to the appellant a legacy of $1000 and to the appellee, Mrs. Frazer, a legacy of $500. The executrices, who were his widow and his two children, Mrs. Tilghman and Mrs. Noble, left the monies to pay these legacies in the hands of Mrs. Tilghman. They were never paid. The remainder of Dr. Harrison's estate was left one-third to his widow and one-third to each of his daughters. Mrs. Noble was to receive a house in Baltimore, as part of her one-third, and Mrs. Tilghman was to receive as part of her one-third, the \\\"Foxley Hall\\\" property. This property she did receive at a valuation of $8000.\\nMrs. Harrison left a legacy of $1250 to appellant and a similar legacy to Mrs. Frazer. Mrs. Harrison's executrices, were Mrs. Noble and Mrs. Tilghman. Certain notes for the face value of $2500 were allocated to the payment of these two legacies, and were left in the hands of Mrs. Tilghman. The notes were paid to Mrs. Tilghman, but she never paid the legacies. As an illustration of the loose manner in which the estate was handled, it appears that Mrs. Noble was in need of some money, and she appropriated $1325 which belonged to the estate, and Mrs. Tilghman, to offset this, also took $1325. These two were only entitled to the use of the estate for life. Since the death of Mrs. Tilghman, these amounts have been replaced in Mrs. Harrison's estate, and no question arises concerning them in this case.\\nMrs. Tilghman's will was proved in the Orphans Court of Talbot County and the two executors duly qualified. Her will was in her own handwriting, and was evidently prepared without benefit of legal advice. The chancellor numbered the paragraphs, although these numbers did not appear in the original will. For the sake of convenience we will adopt the same procedure. The will was executed on April 14, 1926, and the paragraphs, which are involved in this case are as follows:\\n\\\"(3) 1 wish my dear son Harrison Tilghman to be paid $1000. left by his grandfather & $1250. left his grandmother out of my estate.\\n(4) My dear daughter Mary Foxley Tilghman Frazer to be paid $500\\u2014left by her grandfather & $1250 left by her grandmother out of my estate.\\n(11) I wish no sentiment in regard to Foxley Hall\\u2014 If my children deem it best to keep it as a home,.do so\\u2014 If they think it best to sell it\\u2014to do so & to invest the money\\u2014adding to my estate.\\n(12) My estate I wish both real and personal to be equally divided between my two children\\u2014during their life time.\\n(13) If my son Harrison never marries\\u2014his share of my estate to go to my daughter Mary Foxley Frazer & her children\\u2014If he should marry and have heirs. His heirs not reaching the age of 21 years\\u2014without children reverts to Mary Foxley Frazer and her children.\\n(14) Should Mary Foxley Frazer and her heirs die before reaching the age of 21\\u2014without heirs, her share goes to Harrison Tilghman & his heirs.\\n(17) The furniture, pictures, portraits to be equally divided between them my children\\u2014It is my desire to be equally just to each of them, for they are most dear to me\\u2014\\n(20) To my dear husband Oswald Tilghman should he survive me\\u2014a life estate in all my property. At his death to be equally divided as I here before directed.\\n(22) I intended to direct & wish if possible my legacies to be paid out of my income\\u2014I therefore direct my executors to take two years to settle my small estate if necessary.\\\"\\nDifficulties arose between those interested in the estate, and after some discussions, the appellant filed certain claims against the estate in the Orphans Court. Claim No. 13 was for $1325, being one-half of $2650 diverted from the Martha I. Tilghman estate by Mrs. Tilghman and Mrs. Noble. This matter was afterwards settled, so that we are not further concerned with it. Claim No. 15 was for the $1000 legacy left the appellant by his grandfather, Dr. Harrison, with accrued interest at the rate of 6% from 13 months after the date of probate of Samuel Harrison's will, the total amount, $3378.34. Claim No. 16 was for the legacy of $1250 left appellant by his grandmother, Martha I. Harrison, with interest from 13 months after the date of probate of Martha I. Harrison's will, the total amount, $2753.95. Claim No. 17 was for advances made for the account of his mother during her last illness, amounting to $3495.08, and additional advances to the extent of $939.03, and outlays for the preservation and security of \\\"Foxley Hall\\\", of $1001.38. These claims were filed on October or November 4, 1932 and in February 1933. At first, Dr. Frazer requested the Orphans Court to have plenary proceedings with respect to these claims. Nothing developed from that request, and subsequently, a proceeding was filed in the Circuit Court for Talbot County by Mrs. Frazer and Dr. Frazer, individually and as co-executors, and the three children of Dr. and Mrs. Frazer, all then being infants. That proceeding was known as Chancery No. 2077, and in it was sought a construction of the will of Mrs. Tilghman. The appellant filed his answer in that proceeding on September 11, 1934, and an amended answer on September 27, 1985, and the complainants filed a replication to the amended answer on January 31, 1936, but no further action was taken in that case. Finally, on November 7, 1938, the bill of complaint in the case before us, which was known as Chancery No. 2358, was filed, by the appellees against the appellant, asking the court to assume jurisdiction over the Belle H. Tilghman estate, in consolidation with Chancery No. 2077, and for further proceedings for the completion of the administration and distribution of the estate and construction of the will. In answer to an order to show cause, passed on this bill of complaint, or as it is called, appellees' petition, the appellant filed a lengthy answer, in which he consents to the assumption of jurisdiction by the court and reaffirms his claims. This answer was filed on December 20, 1938. In the amended answer in No. 2077, which had been filed on September 27, 1935, appellant had set up a contract, which he claims he had made with his mother, by the terms of which he was to get one-half of the estate, including \\\"Foxley Hall\\\" at a valuation of $8000. His sister was to get the other half. This was presented as an alternative to receiving interest on his unpaid legacies from his grandfather and his grandmother. The proceedings in No. 2077 are not before us in this record, but the chancellor consolidated that case with No. 2358, passed an order assuming jurisdiction of the administration, and referred the proceedings to the auditor to state audits in conformity with the respective contentions of the parties. That was not done, however, and nothing happened in the case until January 13, 1947, when appellant took steps to have the case heard. Hearings were had beginning on June 11, 1947, and the chancellor filed his opinion on September 20, 1947, and a supplementary memorandum on January 2, 1948, on which last mentioned date, the decree from which the appeal herein was taken, was entered.\\nThe questions before us for decision are: (a) Did Mrs. Belle H. Tilghman agree with the appellant that in consideration of his giving her the amounts due him on the legacies left by his grandfather and grandmother, she would leave him one-half of her estate, including \\\"Foxley Hall\\\" at a valuation of $8000; and, if such an agreement was made, does it take precedence over the provisions of her will? (b) In case an enforceable contract, as outlined in (a) does not exist, is the appellant entitled to any interest on the two legacies left him by his grandfather and grandmother, respectively? (c) Is appellant entitled to interest on his claim for money advanced to his mother? (d) Is appellant entitled to interest on the advances made by appellant to the estate of his mother? (e) Is appellant entitled to the outlays which he may have made for the preservation and security of \\\"Foxley Hall\\\" after the death of his mother? (f) What is the proper construction of the will of Mrs. Belle H. Tilghman, with respect to the estate left the appellant and the appellees, Mary Foxley Tilghman and her children, two of whom are now over 21, and the third one will be 21 within a few months.\\nThe chancellor determined that there was no sufficient evidence of the contract mentioned under (a), and declined to enforce any such agreement. As to (b), he held that the appellant had given to his mother both the principal and interest of the legacies which he was left by his grandparents, and that he was entitled only to the legacies left him in paragraph three of the will of his mother, without any interest. As to (c) and (d), the claims of appellant were allowed, but he was denied interest. No appeal was taken by the appellees from the allowance of these claims. As to (e), the chancellor declined to allow these claims as proper charges against the estate. His interpretation of the will will be discussed when we reach point (f) in this opinion.\\n(a) Appellant is embarrassed in his presentation of his claim of a contract made with his mother by the Evidence Act, Article 35, Section 3, which prohibits him from testifying as to any transaction had with, or agreement made by his mother. He has to rely on certain statements made in letters and papers found among her effects. One of these is a letter written to him by his mother on March 6, 1915, when he was a lieutenant in the Army in California. This was just before his sister's wedding, and in response to a letter from him. The part of the letter which is pertinent to the appellant's claim is as follows: \\\"You thought I ought to give Mary what her Grandmother left her at this time-\\u2014 & I will spend that much on her wedding though I do not intend to speak of it in that way\\u2014l want you to have this house at an estimate of $8,000\\u2014if that is satisfactory to you. One would think I was going to die, but not so\\u2014but I want you & Mary to understand me. You must share and share alike. I love one as much as the other, but now that Mary will have such a good protector my heart goes out more & more to you dear Child\\\" (Emphasis supplied). There is also a memrandum of her father's estate found among Mrs. Tilghman's papers which shows the division of the estate into three parts, giving the details of what composed the share of each one. Her own included a house at $8000. which refers to \\\"Foxley Hall\\\". On the back is a memorandum as follows: \\\"1000 to Harrison, 500 to Mary Foxley. This was paid by sail of personal estate\\u2014 I think\\u2014& paid to me which I owe my children.\\\" A similar memorandum in the handwriting of Mrs. Tilghman and found among her papers, shows her mother's estate, but not the division of it. This contains the following statement: \\\"My sister and I spent belonging to the estate 2650 Children's legacy 2500\\\". Another paper in the handwriting of Mrs. Tilghman and found among her papers, contains some notes about what happened to various investments. This contained the following statement: \\\"The $1500 on the Hall place\\u2014 went towards the childrens legacy & the 1000 on property near Preston\\u2014making the $2500\\\". On another memorandum, similarly made and found, there are two statements; one is as follows: \\\"My sister & I\\u2014spent 2650 when there was urgent need for my sister on account of sickness & I took what she took.\\\" The other, in which she refers to her mother, is \\\"She lent me 1500 on the Hall place which 1500 I took for the Children\\u2014 $1000\\u2014which she sold the place near Preston\\u2014\\\" In addition to these items, appellant refers to certain testimony given by his co-executor, Dr. Frazer. He was asked what Mrs. Tilghman had said to Mrs. Frazer on two visits shortly before her death. His answer was \\\"That there were certain things she desired to have done.' She made that statement to Mrs. Frazer at that time. Mr. Tilghman wanted Foxley Hall. Let him have it. Don't move anything away. I want him refunded for what he has done for me. That was 91 days before the death of this Testatrix. On the occasion of another visit on January 20th, 1931, 43 days before the death of Mrs. Oswald Tilghman, Mrs. Frazer told me that she wanted to understand clearly just what her mother wanted done in behalf of Colonel Tilghman, that, irrespective of whether she personally liked it or not, she wanted to do it if it were her mother's wish. As I .have indicated, she had a talk with Mrs. Oswald Tilghman on January 20, 1931, 43 days before Mrs. Tilghman's death, and asked her in regard to the various matters which Mrs. Tilghman, of which she had spoken before. Mrs. Tilghman's reply was, T have not the slightest recollection of it. What I want is my Will carried out.' \\\"\\nIn all of this, except the last statement made by Mrs. Tilghman to Mrs. Frazer, it is clearly indicated that at various times Mrs. Tilghman wished the appellant to have \\\"Foxley Hall\\\". It is also clear that she recognized that she had not paid either of the children their legacies, but there is nothing to show any agreement by her, that in consideration of appellant's giving up his legacies, she would give him half of the estate, including \\\"Foxley Hall\\\" at a valuation of $8000. She does say, in those letters, and in her will, that she wants the children to share equally in everything, but in her will she effectually shows that she did not consider that there was any bargain about \\\"Foxley Hall\\\". By paragraph Eleven she speaks of the possible sale of this property, unless \\\"my children deem it best to keep it as a home\\\". This would certainly negative any idea that she thought she had agreed that the appellant should have it. Further, she leaves the appellant, by paragraph Three, the specific amounts which he was left by his grandfather and grandmother, (doing the same for his sister by paragraph Four) and this indicates that she did not consider that she had been given these amounts in exchange for one-half of her estate, including \\\"Foxley Hall\\\", as claimed by appellant. The will was made April 14, 1926, which is 11 years after the letter in which she suggests to the appellant that he is to have \\\"Foxley Hall\\\" at the estimate of $8000. The appellant has not, in our opinion, proved the existence of such a contract with his mother as he claims, and we agree with the conclusion of the chancellor on this point.\\n(b) The alternate claim of the appellant is for interest from one year after the respective deaths of his grandfather and grandmother on the two legacies which his mother used during her life time. The chancellor held that he had given these legacies to his mother, and, therefore, he was not entitled to them, but was entitled to the legacies which she left him in place of them by paragraph Three of her will. We are not able to agree with the reasoning of the chancellor that the appellant gave his mother the principal of these legacies. Mrs. Tilghman recognized in her memoranda and in her will, repeatedly, that she owed these unpaid legacies to her children. She does not recognize that she owed any interest on them, and it is not indicated anywhere that any claim was ever made on her in her life time for any such interest, either to be paid' then, or to be accumulated and paid at her death. The fact that for 40 years in one case, and for 32 years in another no interest was apparently suggested, or spoken of to her by her children, indicates that they were willing to let her have the use of the money, or the securities in which it was invested, and she constantly acknowledged that she would pay them the principal. Under these circumstances, we think there is a presumption that the interest was intended by the appellant to be a gift to his mother, or, at least, that he waived any claim to it. The case has some aspects which are similar to the case of Hirst v. Hooper, 186 Md. 18, 45 A. 2d 750, 752, although in that case, as the appellant pointed out, there was an agreement made between two children to \\\"start from scratch\\\" in support of their father, and no mention was then made of any unpaid interest. However, the opinion of Judge Henry, which we quoted and adopted, cited this as only one incident which led him to believe that there was a presumption of a gift, and we said, \\\"On a question of gift vel non the inferences to be drawn from words or conduct may be different in cases of persons in intimate family relationships from those in other cases.\\\" It is inconceivable that in a family relationship between a mother and son, so close and affectionate as the relationship between the appellant and his mother appears to have been, the mother would not have given the son everything she thought he was entitled to, when she was directing the payment of these legacies out of her estate. The fact that she did not include any interest shows that she did not think any was due him, and she could have only thought that from his action and his conduct during all the years she had his legacies in her possession without protest. Our conclusion is that the appellant has waived any right to interest on these legacies during his mother's-life, although we agree with him that what his mother intended to do by paragraph Three was to pay a debt. The .debt she directs to be paid to him is all the debt that her estate owes him, with respect to these legacies, and no interest should be allowed upon it. Turk v. Grossman, 179 Md. 229, 17 A. 2d 122.\\n(c) This claim amounts to $3495.08. It is for nurse hire, general household expenses, drug store bills, doctors' bills and cash advanced, and runs from November 6, 1929 to February 25, 1931. The appellees contended below, by virtue of a remark alleged to have been made by appellant to his sister, that these amounts were gifts. If such a remark was made, we agree with the court below that, under the circumstances, it should not be held as a waiver of what appears to have been a general outlay by a son for his mother in her last years. She had sufficient securities to have provided this money had they been sold, and the proceeds used. The fact that they were not, increased the net estate, and was of benefit to the appellees. It comes with rather poor grace from them, now, to suggest that all of these outlays were gifts. The mother herself recognized what her son was doing and said that she wished him repaid. He filed his claim on February 11, 1933. The items were furnished on February 27, 1934 in the account filed, and, therefore, for 14 years the appellant has been without his money. We do not think, however, he is entitled to interest under Turk v. Grossman, supra.\\n(d) The chancellor allowed the appellant advances to the estate as claimed by him amounting to $939.03. These were for such things as death notices, executors' bonds, funeral expenses, some open accounts, a small legacy and taxes on personalty. These were all proper claims against the estate, and could have waited until an order had been passed, and some securities had been sold. It is commendable in the appellant to have paid them to avoid any unpleasantness about them, but since it is not shown that his co-executor at any time refused to assist in getting an order to sell property to pay debts, if that was necessary, or, if the estate had income in hand, to direct the bills to be paid out of the estate funds, we do not think appellant is entitled to interest on these amounts. The question was passed upon as far back as 1863 in the case of Billingslea v. Henry, 20 Md. 282, where the court said \\\"An executor who voluntarily pays debts out of his own funds, cannot claim interest on amounts so paid, when he has assets in his hands at the time sufficient to pay them which he has not chosen to convert into money.\\\"\\n(e) The claim for the preservation and security of \\\"Foxley Hall\\\", as shown in the itemized account, is for carpenter's work, materials, fertilizing, tree conservation, taxes, repairs to brickwork, repairs to furniture. The appellant had the use of \\\"Foxley Hall\\\" at least part of the time since his mother's death and since his father's death, claimed that he should get it in the settlement of his mother's estate, and under any construction of his mother's will is entitled to one-half interest, at least, during his life time. The proper construction of the will will be discussed later, but the above represents his minimum interest in it, in any event. Under these circumstances, he was expending money for the preservation of property in which he had an interest. These expenditures are not proper allowances for payment out of his mother's estate, and we think the court correctly so ruled.\\n(f) It is of course elementary that in the construction of a will the object of the court is to determine the intention of the testator from the whole will, and then to apply that intention, unless some specific provision is made which contradicts it. It is also true that a will must be construed prospectively from the standpoint of the testator or testatrix at the time and under the circumstances when the will is made. It cannot be construed retrospectively in the light of conditions which may have arisen afterwards. If it could, many of the provisions in will which have been held void because they violated the rule against perpetuities, might have been held perfectly valid testamentary dispositions. The correct rule is stated in Gambrill v. Gambrill, 122 Md. 563 at page 569, 89 A. 1094, at page 1095, in the follow ing words: \\\"In determining this question of remoteness, there is an invariable principle that regard is to be had to possible, and not merely to actual events. It is not determined by looking back on events which have occurred and seeing whether the estate has extended beyond the prescribed limit, but by looking forward from the time the limitation was made and seeing whether, according to its terms, there was then a possibility that it might so extend.\\\" This principle and these words were quoted and approved in the case of Perkins v. Iglehart, 183 Md. 520, 39 A. 2d 672.\\nThe testatrix in the case before us made a will at a time when her only son, the appellant, was not married and her daughter was married and had three children living. The husband of the testatrix was also still living. She gave her husband a life estate in all her property by Section 20 and stated that at his death it was to be equally divided as she heretofore directed. By Section 12 she stated what she had frequently said before in the conversations and letters in the record, that she wished her estate, both real and personal, to be equally divided between her two children, adding, after a dash, \\\"during their life time.\\\" It was contended before the chancellor by the appellees that these words gave the son and daughter life estates, followed by contingent cross-remainders contained in the succeeding paragraphs. The appellees have apparently now abandoned this contention, but there is much to be said for the theory that the children have only life estates. The chancellor, on the authority of Devecmon v. Shaw 70 Md. 219, 16 A. 645, and Backus v. Presbyterian Ass'n, 77 Md. 50, 25 A. 856, held that the children, under item 12, took a fee simple estate in the real estate, and an absolute estate in the personalty as tenants in common, and that the estates of both children were defeasible upon the happenings of the contingencies, designated in the two succeeding paragraphs of the will. In the two cases cited by the chancellor there were no words indicating that the original gifts were for life, but in the earlier case of Dickson v. Satterfield, 53 Md. 317, certain real estate was devised to a cousin of the testatrix \\\"during her life and, in case of her death without issue\\\", there was a direction for a sale and the use of the proceeds for a purpose which was found to be void. The cousin, who was granted a life estate, died unmarried and without issue, and the question was, who then became entitled to the property. The court said that the inference was irresistible, that it was intended that if the cousin had issue, they should have and enjoy the property because it would be \\\"in the language of Mr. Jarman, 'attributing the grossest absurdity to the testator,' to suppose she intended her missionary charity to fail because of the first object of her bounty having issue, unless she intended that issue should enjoy her bounty in preference to the charitable object to which she gave the property in the event of there being no such issue. 1 Jarman on Wills, 431.\\\" In that case, which was decided under the law existing prior to the act of 1862, it was held that the cousin took a fee simple in the property because the words used were construed as meaning an indefinite failure of issue and, therefore, the devise over was void. We are not confronted with that situation in this case. See also Heald v. Heald, 56 Md. 300 at page 311, and Nowland v. Welch, 88 Md. 48, at pages 50, 51, 40 A. 875, at pages 876, 877, where similar inferences were made by the court in the disposition of property after life estates. While it may make little practical difference whether we hold, under this will, that the children each have life estates, and their children, by necessary implication, have absolute estates as to the personalty and fee simple estates as to the realty, subject to defeasance under the conditions set forth in paragraphs 13 and 14, or whether we hold, as did the chancellor, that the children themselves have absolute estates in the personalty and fee simple estates in the realty, subject to defeasance, we think the correct interpretation is that the children are given only life estates.\\nWe agree with the conclusion of the chancellor, that the general intention of the testatrix was to treat her two children equally as far as possible, and with that conclusion in view, paragraphs 13 and 14 must be interpreted as meaning approximately the same thing. Her general intention also was that she desired her entire residuary estate to remain in her issue as far as possible. She did not, fortunately, tie it up beyond the limit permitted by the rule against perpetuities. While under some conditions there might have to be two periods of gestation allowed, this is not contrary to the rule. Tiffany on Real Property, 3rd Ed., Vol. 2, paragraph 399, page 168. There is, after the life estate of Colonel Oswald Tilghman, a life estate in one-half of the estate in Harrison, and a remainder to his children, with a cross-remainder, or limitation over, however, to Mary Foxley, in case Harrison dies without leaving issue, or in case his children do not reach the age of 21 and do not leave issue. At the termination of Mary Foxley's life estate in one-half of the estate, there is a remainder to her children. If Mary Foxley dies without leaving living issue or descendants, then her share goes to Harrison. We reach this conclusion because it seems to us a necessary implication, as in the quotation from Jarman in the case of Dickson v. Satterfield, supra, that Mrs. Tilghman could not have intended Harrison's share to go to Mary Foxley on his death if he had a child who was then, for instance, only one year of age, and who might not reach maturity for 20 years. If Harrison's share, under such circumstances, went to Mary Foxley, then his child would get nothing, which we consider would be an absurd construction of Mrs. Tilghman's will. On the other hand, we think the contingency upon which Mary Foxley's share goes to Harrison can be determined only when she dies. If she then has children of age or issue of children, the children have an absolute remainder, otherwise Harrison takes. On the conclusion reached by the chancellor, she could now dispose of her one-half to strangers, and Harrison and his issue, if he should have any, would be entirely left out. This would be contrary, we think, to the intention of the testatrix.\\nThe chancellor, in his decree, appointed the appellant and Dr. Frazer receivers. That we consider unnecessary and unusual. The ordinary procedure, which we see no reason for disregarding in this case, is to have the two executors act under the authority of the equity Court, (Bass v. Smith, 189 Md. 461, 56 A. 2d 800) and we think that should be done in this case. The appointment of the auditor is a proper procedure, and will undoubtedly facilitate settlement of the estate, unless the auditor appointed does no more than his predecessor. We assume that this will not be the case, and that the court will see that the audit is stated promptly. The executors should be allowed such commissions as are provided in the statute, the chancellor determining what percentage they get within the limits prescribed. Under our conclusion we see no occasion for the executors to withhold distribution to the appellant of his share of the estate, nor is there any reason shown for their withholding distribution to Mrs. Frazer of her share. Their mother, in her will, provided for no trust, nor for any fiduciary to have charge of the property, and in the absence of any claim of imminent waste or destruction of the property, the court need not do what the will did not provide. On the other hand, if such a claim is made hereafter, the chancellor may readily appoint someone to hold and preserve the property which it is contended is about to be dissipated. ' A common procedure adopted in many of the equity courts of this State, is to have all of the securities transferred with the addition of the words \\\"subject to the provisions of the will of -\\\", or \\\"subject to the order of the Circuit Court for -\\\". This is an appropriate method of handling securities where they are held by a life tenant. As the chancellor is familiar with the property, and with the parties, we leave for him to determine, whether any such method should be adopted in this estate.\\nBy paragraph (12) the testatrix directed that her property, both real and personal, be equally divided during the lives of her children. This provision should be carried out by the executors in their distribution account. If they do not agree, the chancellor can decide any disputed questions, and direct how the distribution shall be made. As the distribution is to be made now, seventeen years after the death of the testatrix, and the values of the property in the estate have probably changed materially, there should be a new appraisement. This will include \\\"Foxley Hall\\\", unless the son and daughter agree to keep it as a home for both, under paragraph (11), which seems improbable under the present circumstances. If they do not agree what is to be done with it, the chancellor can determine whether it should be allotted to either of them who wants it as a part of his or her share, or whether it should be sold and the proceeds divided as part of the estate. Paragraph (11) gives the executors authority to make such a sale, and to convey to a purchaser the interest of the testatrix in the property or to convey such interest to either devisee in the division directed by the court under the authority of paragraph (12).\\nIn view of our conclusions, the decree will be affirmed in part and reversed in part, and the case will be remanded for the passage of an amended decree in accordance with this opinion, and for further proceedings. The costs are to be paid out of the estate.\\nDecree affirmed in part and reversed in part, and, case remanded for further proceedings. Costs to be paid out of the estate.\\nMarbury, C. J. delivered the following supplemental opinion of the Court:\\nAfter the opinion in this case had been filed, the appellant petitioned the Court to include in its decision an affirmative statement of the construction of those provisions of the will of Belle H. Tilghman by which pecuniary legacies and bequests of specific personal property were given. These provisions are contained in paragraphs 5, 6, 7, 8, 9, 10, 15, 16, 17, 18 and 19. Their construction was not discussed in the briefs or in the oral argument, and it had not been previously made known to the Court that any dispute existed as to their meaning. It appears now, however, that the appellees contend that the bequests in paragraph 17 are of the same nature as the disposition of Foxley Hall. There seems to be no dispute as to the interpretation of the other paragraphs above mentioned, and there is no necessity for quoting or discussing them. But in view of the fact that we were construing the entire will in the opinion, we have come to the conclusion that we should grant appellant's petition and state the proper construction of paragraph 17.\\nParagraph 17 is set out in full in the opinion. The first sentence is the one in dispute. It reads \\\"The pictures, portraits and furniture to be equally divided between them my children\\\". We are not advised of the value of the furniture or the pictures or the portraits, but it seems to be perfectly clear that it was the intention of the testatrix to make an equal division of them between Colonel Harrison Tilghman and Mrs. Frazer. However, it is just such a bequest as this that causes trouble in families, because, frequently, the same parties will want some particular portrait or picture or piece of furniture which may not have any intrinsic value, but which may have some special sentimental value. If there are any such pictures or portraits or articles of furniture passing under paragraph 17, and the two children are unable to agree, then the Chancellor will have to decide according to his best judgment, after taking testimony, if he thinks it necessary. The paragraph has no connection with paragraph 11 which has to do with Foxley Hall. That paragraph we have already discussed. Pictures, portraits and furniture do not pass with the house in which they are located. The house is ordinarily real estate and they are personal estate. The two kinds of property are essentially different and are disposed of under different statutes and rules of law. It is, of course, possible for a testatrix to provide that a house with all of its furniture, pictures and portraits shall go to some particular person or persons, but that was not done in this case, and we can see no force in any interpretation which holds that the articles bequeathed in paragraph 17 have any connection whatever with the provision as to Foxley Hall in paragraph 11.\"}"
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+"{\"id\": \"2254126\", \"name\": \"STATE ex rel. BYRD v. WARDEN OF MARYLAND HOUSE OF CORRECTION\", \"name_abbreviation\": \"State ex rel. Byrd v. Warden of Maryland House of Correction\", \"decision_date\": \"1948-12-10\", \"docket_number\": \"No. 39\", \"first_page\": \"670\", \"last_page\": \"674\", \"citations\": \"191 Md. 670\", \"volume\": \"191\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:50:52.916610+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE ex rel. BYRD v. WARDEN OF MARYLAND HOUSE OF CORRECTION\", \"head_matter\": \"STATE ex rel. BYRD v. WARDEN OF MARYLAND HOUSE OF CORRECTION\\n[No. 39,\\nOctober Term, 1948.]\\nDecided December 10, 1948.\\nThe cause was argued before Marbury, C. J., Delaplaine, Collins, Henderson, and Markell, JJ.\\nWalter V. Harrison for the appellant.\\nHall Hammond, Attorney General, and Harrison L. Winter, Assistant Attorney General, with whom were J. Bernard Wells, State\\u2019s Attorney for Baltimore City, and Saul A. Harris, Assistant State\\u2019s Attorney for Baltimore City, on the brief, for the appellee.\", \"word_count\": \"1034\", \"char_count\": \"6264\", \"text\": \"Markell, J.,\\ndelivered the opinion of the Court.\\nThis is an appeal, by leave granted by this court (Code, Art. 42, sec. 3C), from an order remanding petitioner for a writ of habeas corpus to custody under sentence of a Prince George's County trial magistrate to two years in the House of Correction for \\\"manslaughter by automobile\\\". The question presented is whether a trial magistrate has jurisdiction, under Art. 52, sec. 13 (as amended by the Act of 1945, ch. 845) and especially under the last paragraph of section 13, to try a case of alleged \\\"manslaughter by automobile\\\". Pending this appeal, the question, though not presented in precisely the same form, has in effect been decided by this court. In Robb v. State, 190 Md. 641, 60 A. 2d 211, it was held that under section 13 a trial magistrate had jurisdiction over such a case in the first instance and the Circuit Court had jurisdiction on appeal by the State from a judgment of not guilty. Manifestly the Circuit Court could not have had jurisdiction on appeal unless the trial magistrate had jurisdiction in the first instance.\\nThe Act of 1941, ch. 414, provides that \\\"every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, locomotive, engine, car, street car, train or other vehicle, in a grossly negligent manner, shall be guilty of a misdemeanor to be known as 'manslaughter by automobile, motor vehicle, locomotive, engine, car, street car, train or other vehicle' \\\" and \\\"shall be sentenced to jail or the House of Correction for not more than three years\\\" or be fined or be both fined and imprisoned. Art. 27, sec. 436A. The act prescribes a short form of \\\"indictment or warrant\\\" for the offense. Art. 52, sec. 13(a) (not changed since 1914 in any respect now material) provides that trial magistrates shall have jurisdiction to try \\\"all cases involving the charge of any offense, crime or misdemeanor, not punishable by confinement in the Penitentiary or involving a felonious intent.\\\" The last paragraph (added in 1943) provides that \\\"in the trial of all charges of any offense, crime, or misdemeanor, except motor vehicle cases, the proceedings and the method of trial, the right to demand a jury trial and the right to appeal\\\" shall be such as are prescribed by section 13(b) (not changed since 1914 in any now material respect), and such paragraph [13(b)] shall be deemed applicable to \\\"every such offense, , except motor vehicle cases, whether now or subsequently defined, unless the statute defining them declares, by specific reference, that this section shall not apply.\\\" Petitioner contends that \\\"manslaughter by automobile\\\" is a \\\"motor vehicle case.\\\"\\nExcept with respect to \\\"the right to demand a jury trial and the right to appeal\\\", and certain procedural details in \\\"motor vehicle cases\\\" the jurisdiction of trial magistrates under Art. 52, sec. 13, is apparently not different from their jurisdiction in \\\"motor vehicle cases\\\" under Art. 66%, secs. 260-267. Petitioner's contention that \\\"manslaughter by automobile\\\" is a \\\"motor vehicle case\\\", within the exception in Art. 52, sec. 13, would therefore be futile, even if sound. The exception is not an exception to jurisdiction under section 13(a), but only to procedure under section 13(b). If petitioner's contention were sound, then the fact that he, \\\"being informed of his right to trial by jury, freely elected to be tried by [the trial magistrate],\\\" and a jury trial was not prayed by the State, would be mere surplusage and would not defeat the jurisdiction of the trial magistrate or invalidate the sentence.\\nPetitioner's contention, however, is not sound. \\\"Motor vehicle cases\\\", if not limited to cases arising under Art. 66%, at most include only offenses pertaining to motor vehicles as such. \\\"Manslaughter by automobile\\\" is not a \\\"motor vehicle case\\\"; it is the same offense as \\\"manslaughter by locomotive, engine, car, street car, train or other vehicle\\\". Cf. Wright v. Sas, 187 Md. 507, 50 A. 2d 809. Essentially, the Act of 1941, ch. 414, amended the criminal law as to manslaughter, not the motor vehicle laws.\\nThis appeal was taken at the suggestion of the lower court, who appointed counsel for this purpose, because the court doubted the correctness of its own decision on account of Governor O'Conor's veto message in regard to Senate Bill 611 of 1945. That was a bill to amend Art. 27, sec. 436A, so as, among other things, to insert an express provision that trial magistrates in the counties should have jurisdiction, over the offense of \\\"manslaughter by automobile\\\", concurrent with the jurisdiction of the Circuit Court. The Governor's message stated weighty reasons why Justices of the Peace ought not to have jurisdiction in such cases. The Governor's reasons would have been pertinent to a veto or a repeal of the original act of 1941. His message did not, however, discuss the question whether the Act of 1941 had created an offense which already fell within the jurisdiction of trial magistrates under Art. 52, sec. 13. Soon after the veto the Attorney General, on August 11, 1945, gave an opinion that trial magistrates have such jurisdiction. SO Opinions of Attorney General 40. Committees of the Maryland State Bar Association in 1946 and 1947 recommended \\\"legislation removing the jurisdiction of the trial magistrates to hear and determine such cases\\\". This recommendation was not adopted by the Association. Transactions Maryland State Bar Association, Vol. 51, pp. 134, 228-235; Vol. 52, pp. 18, 19, 98-108. Since the Attorney General's opinion the legislature has not repealed or amended the act of 1941 to conform with the views of the Governor and the Bar Association Committees.\\nOrder affirmed, without costs.\"}"
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+"{\"id\": \"2259127\", \"name\": \"Frederick A. CHRISTIAN v. STATE of Maryland\", \"name_abbreviation\": \"Christian v. State\", \"decision_date\": \"1985-03-14\", \"docket_number\": \"No. 892\", \"first_page\": \"296\", \"last_page\": \"310\", \"citations\": \"62 Md. App. 296\", \"volume\": \"62\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:26:38.914831+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frederick A. CHRISTIAN v. STATE of Maryland.\", \"head_matter\": \"489 A.2d 64\\nFrederick A. CHRISTIAN v. STATE of Maryland.\\nNo. 892,\\nSept. Term, 1984.\\nCourt of Special Appeals of Maryland.\\nMarch 14, 1985.\\nBradford C. Peabody, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.\\nNicolette H. Prevost, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State\\u2019s Atty. for Baltimore City and Sarah Reeder, Asst. State\\u2019s Atty. for Baltimore City, Baltimore, on the brief) for appellee.\\nSubmitted before ADKINS, ALPERT and KARWACKI, JJ.\", \"word_count\": \"4015\", \"char_count\": \"24264\", \"text\": \"ADKINS, Judge.\\nThis appeal requires us to decide whether a trial judge who suspends the execution of a sentence and places the defendant on probation may impose, by subsequent extensions of the probationary period, a total probationary term in excess of five years. On the facts of the present case, we hold this to be impermissible. We reverse the judgment below.\\nOn May 24, 1978, the Criminal Court of Baltimore found appellant, Frederick A. Christian, guilty of being a rogue and a vagabond. It sentenced him to three years of incarceration, suspended in favor of three years of supervised probation. Two of the conditions of that probation were that Christian \\\"[o]bey all laws\\\" and that he \\\"not illegally possess\\\" narcotic drugs.\\nIn October 1980, well within the three-year probationary period, Christian was charged with violation of those two conditions. He had been convicted of a traffic offense and of possession of marijuana. On January 29, 1981, the court found him guilty of violation of probation. The docket entries for that date show:\\nProbation extended\\nJudgment: Three Years (3) yrs. C/O Commissioner of Correction Sentence Suspended. Three Years (3) yrs. until 4-23-84 C/O Division Parole and Probation, pay costs by 3-29-81____\\nAnother charge of violation of probation was filed in September 1982 \\u2014 beyond the expiration of the initial probation term, but within the term as extended to April 23, 1984. This time the allegations were that Christian had been arrested on charges of contempt of court, a narcotics violation, and telephone misuse. At a hearing on October 5, according to the docket, Christian was found guilty of violation of probation. His probation was \\\"continued and extended for One Years [sic] .\\\" \\u2014 presumably to April 23, 1985.\\nThe final chapter began on June 5, 1984 \\u2014 beyond the extended probation period imposed in 1981, but within the extension ordered in 1982. This time, it was alleged, Christian had been convicted of unauthorized use and arrested for grand theft and daytime breaking. There was a hearing on July 6. The court once again found Christian guilty of violation of probation. Its patience finally exhausted, it sentenced him to three years' imprisonment.\\nChristian now asserts, as he did below, that his probation period of almost seven years was illegal because it exceeded the five-year maximum period established by Maryland Code, Art. 27, \\u00a7 641A(a). If he is correct, as we think he is, the basis for the July 6 sentencing is eliminated, because he committed the offenses that triggered that sentencing after the termination of his probation by operation of law. A suspended sentence may not be reinstated for an act that occurs after the termination of probation. See State v. Miller, 289 Md. 443, 424 A.2d 1109 (1981); State v. Berry, 287 Md. 491, 413 A.2d 557 (1980); and Costello v. State, 240 Md. 164, 213 A.2d 739 (1965). In explaining why Christian was no longer on probation when he committed the offenses that produced the reinstitution of his sentence, we shall commence with an historical analysis of the pertinent statutes.\\nI. Legislative History of Art. 27, \\u00a7 64-1A (a) and 642\\nA court's authority \\\"to suspend the execution of a sentence and to place a defendant on probation derives directly from the statute which strictly delineates its power in this respect.\\\" Kupfer v. State, 287 Md. 540, 543, 414 A.2d 907 (1980). \\\"[T]he statute\\\" to which the Court of Appeals referred in Kupfer, and one of the ones before us here, is what is now Art. 27, \\u00a7 641A (a), which, when first enacted by Ch. 480, Laws of 1970, provided in pertinent part:\\nUpon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts \\\\sic ] deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years, [emphasis supplied].\\nPrior to the enactment of this statute, there was no statutory limit to the duration of probation. Oliver v. State, 59 Md.App. 383, 388 n. 3, 475 A.2d 1230, cert. granted, 301 Md. 249 (1984). The statute introduced the concept of a five-year maximum period of probation so that no term of probation longer than five years could be imposed. Laurie v. State, 29 Md.App. 609, 349 A.2d 276 (1976). Nor could the period of probation be extended beyond five years. Kupfer, 287 Md. at 544, 414 A.2d 907.\\nClosely related to \\u00a7 641A is \\u00a7 642, the statute that prescribes procedure upon a violation of conditions of probation. In 1970, \\u00a7 642 provided:\\nWhenever any person shall have been convicted of any offense in any of the courts of record, of this State, having criminal jurisdiction, and the judge presiding therein shall not have imposed sentence or shall have suspended sentence generally or for a definite time or shall have placed the offender upon probation, or shall have made such other order and imposed such other terms as he may deem proper, and said person should at any time thereafter be brought before the court to be sentenced upon the original charge of his conviction, or for a violation of the terms and conditions of the order of probation in the case, the judge who may then be presiding in that particular court may proceed to sentence the said person.\\nUnder \\u00a7 642, when a person was found in violation of probation imposed after suspension of execution of all or a part of the sentence, the original sentence had to be reinstated upon revocation of probation. Coleman v. State, 231 Md. 220, 189 A.2d 616 (1963); Smith v. State, 11 Md.App. 317, 273 A.2d 626 (1971). A lesser punishment could not be imposed; for example, credit for time spent on probation was not allowed. Magrogan v. Warden, Maryland House of Correction, 16 Md.App. 675, 299 A.2d 460 (1973).\\nThese rather inflexible rules became the subject of legislative modification. By Ch. 626, Laws of 1978, \\u00a7 642 was amended to permit the court, upon revocation of probation, \\\"to proceed to sentence the person to serve the period of imprisonment prescribed in the original sentence or any portion thereof \\\" [emphasis supplied]. By Ch. 398, Laws of 1981, \\u00a7 641A (a) was amended to permit a court to grant probation \\\"in excess of 5 years\\\" with the defendant's written consent, \\\"but only for purposes of making restitution.\\\" And by Ch. 293, Laws of 1981, \\u00a7 642 was amended by adding the present last sentence: \\\"The sentence [following revocation of probation] may be suspended in whole or in part and the offender may be placed on further probation on the terms and conditions the judge deems proper but no term of probation may exceed the maximum prescribed by \\u00a7 6'jlA of this article\\\" [emphasis supplied]. Both of the 1981 amendments took effect July 1, 1981.\\nII. Interpretation of Sections 641A (a) and 642 After the 1981 Amendments\\nSections 641A (a) and 642, as they stand presently, may be read in at least two different ways. Putting aside, for the moment, probation extensions for the purpose of restitution (as we have noted, restitution is not involved here) those two readings are:\\n1. An original term of probation may not exceed five years. Upon revocation of probation, however, the court may place the offender on further probation for an additional period which itself may not exceed five years.\\n2. An original term of probation may not exceed five years. Upon revocation of probation, however, the court may place the offender on further probation, but the total period of all probation may not exceed five years.\\nBecause the statutes are ambiguous, we must determine the legislative intent by considering \\\"the subject matter of the statute[s], the purpose underlying [their] enactment and the object sought to be accomplished.\\\" Berry, 287 Md. at 496, 413 A.2d 557. In addition, we \\\"should consider the consequences which may flow from one interpretation than another and adopt the construction which is in harmony with the general scheme of the enactment and one which will assist in effectuating the legislative purpose.\\\" Id. And because \\u00a7 641A and 642 are in pari materia, we must construe them \\\"harmoniously if that is possible, giv-\\ning effect to the provisions of each.\\\" Turner v. State, 61 Md.App. 1, 8, 484 A.2d 641 (1984).\\nAs we have observed, the last sentence of \\u00a7 642 \\u2014 \\\"The sentence may be suspended in whole or in part and the offender placed on further probation on the terms and conditions the judge deems proper but no term of probation may exceed the maximum prescribed by \\u00a7 641A of this article\\\" \\u2014 was added by Ch. 293, Laws of 1981. The measure was introduced at the request of the Maryland Judicial Conference. It was adopted in precisely the form proposed by the Conference. Neither Conference records, however, nor those of the legislative committees that handled the bill, shed any light on what was intended by the phrase \\\"but no term of probation may exceed the maximum prescribed by \\u00a7 641A____\\\" The files suggest that the primary purpose of the proposal was to moderate the inflexibility of case law prohibiting imposition of further probation after revocation of an earlier term of probation. The purpose clause of the bill's title advises only that the amendment was intended to establish \\\"that a judge . may, upon a finding of probation violation, sentence the violator to a period of incarceration plus a period of probation.\\\" In our attempt to define the precise limits of that \\\"period of probation\\\" we must turn to a more general consideration of the nature and purpose of probation.\\nProbation is designed to serve both society and the offender. Roberts v. U.S., 320 U.S. 264, 273, 64 S.Ct. 113, 118, 88 L.Ed. 41 (1943) (Frankfurter, J., dissenting). It provides a period of grace \\\"to aid in the rehabilitation of a penitent offender____\\\" Burns v. U.S., 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932). Its chief purpose is \\\"to promote the reformation and rehabilitation of the criminal____\\\" Note: \\\"Legal Aspects of Probation Revocation\\\" 59 Col.L.Rev. 311, 312 (1959). Viewed from the offender's perspective, these purposes may be achieved by any length of probation, so long as the court believes an extended period may assist in rehabilitation.\\nAuthorities suggest, however, that rehabilitation is not necessarily achieved by very lengthy terms of probation. If rehabilitation is to occur, it is thought that it will do so within a relatively short period of time. See, e.g., National Commission on Reform of Federal Criminal Laws, Final Report, \\u00a7 3105 comment at 282 (1971). See also, ABA Standards Relating to Sentencing Alternatives and Procedures \\u00a7 2.3(b)(ii). The undesirability of indeterminate probation also has been noted. See, e.g., Laurie, 29 Md.App. at 614, 349 A.2d 276. Thus, many statutes like Maryland's, fix some maximum period of probation. Typical is 18 U.S.C. \\u00a7 3651 which provide, in pertinent part, \\\"[t]he period of probation, together with any extension thereof, shall not exceed five years.\\\" Cases construing such statutes reject consecutive periods of probation or extensions of probation that go beyond the five-year maximum. Fox v. United States, 354 F.2d 752 (10th Cir.1965), Gonzales v. State, 608 P.2d 23 (Alaska 1980), State v. Baca, 90 N.M. 280, 562 P.2d 841 (App.1977), People v. Wakefield, 46 Mich.App. 97, 207 N.W.2d 461 (1973). And see People ex rel. Spiegel v. McCann, 236 A.D. 146, 258 N.Y.S. 324 (N.Y.App.1932), aff'd per curiam, 261 N.Y. 606, 185 N.E. 758 (1933). But see State v. Monaco, 166 N.J.Super. 435, 400 A.2d 74 (App.1979). In Oliver v. State, supra, we noted the similarity of Art. 27, \\u00a7 641A to 18 U.S.C. \\u00a7 3651 and held that consecutive periods of probation exceeding five years in the aggregate are not permitted.\\nWe may take it, therefore, that rehabilitation is an important aspect of probation, but that unlimited periods of probation are not necessarily desirable to achieve that purpose. The latter proposition is clearly reflected in the policy behind the five-year general maximum contained in \\u00a7 641A (a). But is that policy inconsistent with the first alternative statutory interpretation we suggest at page 303, supra \\u2014the interpretation that would permit the imposition of successive periods of probation, so long as no single period exceeded five years? We believe it is.\\nThat interpretation would permit, in effect, lifetime probation or probation of indefinite duration. It would do so because a judge, upon each revocation of probation, could impose a new probationary term of up to five years, ad infinitum. That is precisely the sort of thing we said \\u00a7 641A (a) does not permit. Oliver and Laurie, both supra. Consistent with the Maryland concept of limited probation, we hold that the 1981 amendment to \\u00a7 642 was not intended to change this policy by authorizing indefinite probation. We conclude that the phrase \\\"but no term of probation may exceed the maximum prescribed by \\u00a7 641A\\\" means that the total probation period, including the original term and any new probation imposed after revocation pursuant to \\u00a7 642, may not exceed five years in the aggregate, except where the probation is for purposes of restitution.\\nOur conclusion is reinforced by other language of the Maryland statutes. Section 641A (b), for example, instructs that \\\"[t]he court may revoke or modify any condition of probation or may reduce the period of probation\\\" [emphasis supplied]. It is silent as to any authority to increase that period. The only express authority for increase of probation beyond the five-year maximum is the last sentence of \\u00a7 641A (a) which, as we have seen, was added to the law at the same legislative session that supplied the last sentence of \\u00a7 642. The last sentence of \\u00a7 641A (a) is deliberately narrow in scope. It permits an extension beyond five years only upon the written consent of the defendant and only \\\"for purposes of making restitution.\\\" It is significant, we think, that the same legislature that permitted the limited restitution extension of \\u00a7 641A (a) did not suggest the possibility of any such extension beyond the five-year maximum when it amended \\u00a7 642.\\nThe restitution provision, moreover, is an expression of a legislative policy different from that relating to probation in general. The general probation policy is a humane one of rehabilitation, looking to the interests of both the offender and of society in general. Restitution may share these aspects of probation, but it has another very important one: redress for the victim of a crime. See Smitley, supra. In the context of that concept, extension of probation for purposes of restitution makes sense. Extension of probation beyond the five-year maximum is not consistent with the policy underlying the other aspects of probation. Thus, it is understandable that the General Assembly strictly limited extensions of probation beyond five years to the restitution situation. That reading produces a harmonious interpretation of \\u00a7 641A and 642, as well as an interpretation of the statutes that supports the underlying purposes of probation.\\nWe adopt, therefore, our second alternative reading of these provisions; see page 303, supra. In doing so, we recognize that this result may be inconsistent with dicta in Oliver v. State, supra. While that case dealt primarily with the impermissibility of consecutive periods of probation that exceeded five years in the aggregate, the case of one of the several appellants there did not involve consecutive probation. That appellant, Danny Lee Oliver, was sentenced to consecutive incarceration on several counts, for a total of thirteen years. The trial court suspended execution of the sentences in favor of five years' probation. Later, Oliver was found guilty of violation of probation. The thirteen year sentences were reinstated; three years were suspended; Oliver was placed on additional probation.\\nOn appeal, Oliver argued that the additional probation was for ten years and thus illegal. We found the record unclear as to whether ten years' or five years' new probation had been imposed. Our holding was that Oliver, by failing to object below, had failed to preserve the issue. 59 Md.App. at 391, 475 A.2d 1230. But we went on to remark that \\\"[a] reading of the probationary sentences imposed, however, does not necessarily lead to the conclusion that the judge extended the probationary period beyond the five-year maximum.\\\" Id. Thus, we suggested that a second five-year period of probation, imposed after revocation of an initial five-year probation, was not improper.\\nIn Oliver, we did not discuss the relationship between \\u00a7 641A and 642. An examination of the briefs in that case reveals that no one argued whether such an extension was permitted under the last sentence of \\u00a7 642. Oliver contended that the second period of probation was for ten years, and, therefore, clearly in violation of \\u00a7 642 because it exceeded \\\"the maximum prescribed by \\u00a7 641A____\\\" The State's response, with which we agreed, was that the point was not preserved. The Oliver panel did not consider the matters we have discussed in this opinion. To the extent the dicta at 59 Md.App. 391, 475 A.2d 1230 are inconsistent with what we now hold, they are rejected.\\nWe are aware, too, that it may be argued that our interpretation of \\u00a7 641A (a) and 642 will lead to harsh and even undesirable results. Put the case of a probationer who has completed four years and eleven months of probation without incident. In the twelfth month he commits some relatively minor violation of probation. Under these circumstances, would it not be better policy for the court to continue him on probation for an additional period, perhaps for six months or a year, rather than to revoke his probation and reinstate the suspended sentence? Would not that alternative better serve the interests of both the offender and society? Our holding in this case is that it was legislative intent to reject this alternative. The argument supporting the alternative is unsound because it fails to take into account the variety of other measures available to a judge when probation has been violated.\\nEven when conditions of probation have been violated \\\"the question whether to revoke probation is a matter within the discretion of the trial court.\\\" Humphrey v. State, 290 Md. 164, 168, 428 A.2d 440 (1981). Indeed, under some circumstances, a technical violation may be so trivial that revocation of probation is itself an abuse of discretion. Swan v. State, 200 Md. 420, 90 A.2d 690 (1952). And when non-compliance with conditions is caused by factors beyond the probationer's control, revocation is impermissible. Coles v. State, 290 Md. 296, 429 A.2d 1029 (1981). Even when revocation is both permissible and appropriate, the court is not bound to reinstitute the entire suspended sentence, or the maximum sentence authorized by law, if imposition (rather than execution) of sentence was suspended originally. He may sentence the probationer \\\"to serve the period of imprisonment prescribed in the original sentence or any portion thereof, or if no sentence was imposed, any sentence provided by law for the crime for which the person was originally convicted.\\\" [emphasis supplied]. Section 642. He may also prescribe additional probation, within the five-year maximum. These statutory provisions provide ample flexibility to tailor the disposition of revocation to the ends of justice. See Smitley, supra. But legislative policy requires that this tailoring be accomplished subject to the restriction that the aggregate period of probation may not exceed five years, except where restitution probation is involved.\\nIII. Resolution of the Present Case\\nReturning now to the facts before us, we observe that the 1981 amendment to \\u00a7 642, which first authorized imposition of new probation after revocation, was not in effect on January 29, 1981, when the trial court first increased the length of Christian's probation. Even if the trial court had power to extend Christian's probation five years to May 1983, a question we do not here decide, its purported extension of that term to either October 1983 or May 1985 was illegal because it attempted to keep Christian on probation for more than five years from the initial probation in May 1978. The violations that caused Christian's eventual imprisonment all occurred in 1984, after Christian's probation had terminated by operation of law. Thus, those violations could not be the basis for a valid revocation of probation. State v. Miller, supra. As a consequence, the court was without power to revoke probation and reinstitute the suspended sentence.\\nJUDGMENT REVERSED. MAYOR AND CITY COUNCIL OF BALTIMORE TO PAY THE COSTS.\\n. He also argues that he was improperly denied allocution at the July 6, 1984, hearing. Because we agree with his contention as to the illegality of the probation period, we do not reach the allocution contention.\\n. Of course, the punishment could not be increased. Smitley v. State, 61 Md.App. 477, 487 A.2d 315 (1985); Williams v. State, 45 Md.App. 596, 414 A.2d 254 (1980).\\n. An increase in the period of probation, following revocation, is not an impermissible increase in sentencing so long as the total period of probation does not exceed five years. Brown v. State, 62 Md.App. 74, 488 A.2d 502 (1985).\\n. We have suggested that legislative intent may sometimes be chimerical. Firestone Tire & Rubber Co. v. Cannon, 53 Md.App. 206, 118, 452 A.2d 192 (1982), aff'd per curiam, 295 Md. 428, 456 A.2d 930 (1983). It has been argued that the search for this \\\"intent\\\" should be abandoned in favor of a more forthright approach to statutory construction. Sykes, A Modest Proposal for a Change in Maryland's Status Quo, 43 Md.L.Rev. 647, 667 (1984). In that article, Mr. Sykes urges the Court of Appeals to eschew the traditional tenets of statutory construction and to \\\"tell every other court in the state to do the same.\\\" Id. at 666. The Court of Appeals has not yet done this, so we are constrained to follow and to attempt to apply the rules as they now exist. Had we applied Mr. Sykes's proposed method (\\\"[s]tatutory construction is a matter of analysis and judgment in each case\\\"), id., the result we here reach would not be different.\\n. Because the issue is not before us, we do not consider what effect an offender's conduct may have on tolling the period of probation. Tolling, if recognized, may produce a chronological period of probation in excess of the statutory maximum. United States v. Workman, 617 F.2d 48 (4th Cir.1980); State v. Washa, 185 Neb. 639, 177 N.W.2d 740 (Neb.1970).\\n. It is worth noting that Art. 27, \\u00a7 643A limits District Court probation to a general maximum period of three years. The legislature has resisted efforts to increase the maximum. For example, Ch. 432, Laws of 1984, amended \\u00a7 643A to permit a District Court judge to impose probation for more than five years for the purpose of making restitution. The same measure rejected an attempt to increase the general District Court probation period from three years to five.\\n. Kupfer, supra, could be read as prohibiting any extension of probation absent statutory authority. The actual holding, however, was that the statute permitted no extensions of the maximum five-year period; since the original term of probation imposed in Kupfer was the five-year maximum, the question of the extension of a lesser period of probation to that maximum, was not addressed. Nor was it addressed in Laurie, supra, which struck down an indeterminate period of probation.\"}"
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+"{\"id\": \"2260729\", \"name\": \"Morton FRANK and Edith C. Rollins, Substitute Trustees, v. Lawrence H. STORER, et al.\", \"name_abbreviation\": \"Frank v. Storer\", \"decision_date\": \"1986-02-18\", \"docket_number\": \"No. 778\", \"first_page\": \"459\", \"last_page\": \"470\", \"citations\": \"66 Md. App. 459\", \"volume\": \"66\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:07:00.083430+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Morton FRANK and Edith C. Rollins, Substitute Trustees, v. Lawrence H. STORER, et al.\", \"head_matter\": \"504 A.2d 1163\\nMorton FRANK and Edith C. Rollins, Substitute Trustees, v. Lawrence H. STORER, et al.\\nNo. 778,\\nSept. Term, 1985.\\nCourt of Special Appeals of Maryland.\\nFeb. 18, 1986.\\nCertiorari Granted May 23, 1986.\\nDaniel W. Coon (Timothy R. Dingilian and Jackson & Campbell, P.C., of counsel on brief), Rockville, for appellants.\\nEllia J. Koch (O\\u2019Malley, Miles, McCarthy & Harrell on brief), Upper Marlboro, for appellees.\\nArgued before BISHOP, GARRITY and ADKINS, JJ.\", \"word_count\": \"3111\", \"char_count\": \"18659\", \"text\": \"BISHOP, Judge.\\nAppellants Morton Frank and Edith Rollins, Trustees under a Deed of Trust, appeal from an order of the Circuit Court for Prince George's County granting a Motion to Dismiss a foreclosure proceeding filed by them against the property of appellee Robert G. Glenn, who had purchased the subject property from Lawrence and Dottie Storer, mortgagors in the Deed of Trust.\\nAppellants raise three issues:\\nI. Did the trial court err both procedurally and as a matter of law in holding that it lacked subject matter jurisdiction over the foreclosure proceedings?\\nII. Is a purchaser of property which is the subject of a modification agreement recorded in the land records of Prince George's County, but never indexed, charged with notice?\\nIII. Are the provisions of Section 3-104(f), Maryland Real Property Code Annotated, applicable to Modification Agreements pertaining to recorded Deeds of Trust?\\nFACTS\\nThe following facts are stipulated:\\nIn July, 1980 Hy Wayne and Marie Wayne (\\\"Waynes\\\"), the holders of a promissory note secured by the Deed of Trust at issue on appeal, sold their home in Maryland to Lawrence and Dottie Storer (\\\"Storers\\\") for $85,000. The Waynes received a cash downpayment from the Storers in the amount of $42,500. The Storers also executed a note for an additional $42,500, payable to PN Investments, which was subsequently assigned by PN Investments to the Waynes. The Note was secured by a duly recorded blanket Deed of Trust, dated July 11, 1980, covering three pieces of Storer real property. Appellants Morton Frank and Edith Rollins were trustees under the Deed of Trust.\\nOn December 30, 1980, the Storers, the Trustees, and the Waynes entered into a Modification Agreement which shifted the security interest of the recorded Deed of Trust from a lot in Montgomery County to another piece of Storer real property located in Prince George's County (hereinafter referred to as the \\\"Waterford\\\" property). Such a substitution of collateral was authorized by the express provisions of the Deed of Trust. It is the Waterford property [subsequently purchased by appellant] that was the subject of the foreclosure proceedings below.\\nThe Modification Agreement was recorded among the land records of Prince George's County on January 28, 1981 at liber 5366 and folio 172. However, it appears that prior to its recordation, the Clerk of the Court determined it to be deficient in form in that it did not contain a reference to the liber and folio number of the original Deed of Trust; consequently, the Clerk \\\"red tagged\\\" the Modification Agreement, recorded it and \\u2014 without indexing it \\u2014 allegedly returned it to the Storers' counsel for correction and re-recording.\\nThe \\\"red tag\\\" on this instrument provided as follows: This Release has not been indexed because it contains no reference to the liber and folio where the Deed of Trust or Mortgage is recorded, or because there is no Deed of Trust or Mortgage at the cited reference. Please attend to this matter immediately.\\nThe Modification Agreement was never re-recorded, nor was any reference to it placed in the index maintained by the Clerk. On August 8, 1981, the Storers sold the Waterford property to appellee Robert G. Glenn. The existence of the Modification Agreement, and the Waynes' lien of record, allegedly was not discovered at the time of this transfer.\\nOn February 4, 1985, appellants filed an order to docket foreclosure proceedings on the Storer Deed of Trust, as modified, and the action was subsequently placed on the docket by the Clerk of the Court. On April 8, 1985, appellee moved to dismiss the proceedings for lack of subject matter jurisdiction. On June 7, 1985, a hearing on appellees' motion was held before the Honorable James Magruder Rea. Following the hearing, Judge Rea issued an Opinion dismissing appellants' foreclosure proceedings.\\nI.\\nSubject Matter Jurisdiction\\nAll parties refer to lack of subject matter jurisdiction as the basis for the trial court's disposition of this case. Although appellee's Motion to Dismiss was based on that ground, the circuit court did have subject matter jurisdiction and did not hold to the contrary. The circuit court dismissed the foreclosure proceeding \\\"as to certain property,\\\" appellee Glenn's Waterford property, because it found no disputed facts and that Maryland law and the equities of the case favored appellee Glenn.\\nAppellants filed a written response to appellee's Motion to Dismiss, argued at the hearing on the Motion the issues raised in that Motion, and at no time raised objection to that procedure. The issue is not preserved for our review. Rule 1085. In addition, the decision of the circuit court was not based on a lack of subject matter jurisdiction; therefore, appellants' argument that the trial court erred as a matter of law in so holding is not relevant. Appellants expressed no surprise at the issues presented at the hearing, and neither objected to the proceedings nor asked for a postponement in order to produce other evidence. We will discuss, to the extent necessary for this opinion, how we view the procedure before the trial court in this case.\\nAppellee Glenn's argument before the trial judge was that the court docketed foreclosure proceedings on a Deed of Trust which was not secured by his property, and, therefore, foreclosure proceedings on his unmortgaged property should have been dismissed. Had appellee proceeded under the W Rules to enjoin the imminent sale of his property he would have had to meet the following conditions precedent set out in Rule W76 b 2:\\nSuch an injunction shall not be granted unless the following conditions are met:\\n(1) The petition alleges under oath whether petitioner admits any amount to be due and payable under the mortgage as of the date the petition is filed, and if so the petitioner has paid such amount into court with the filing of the petition, and\\n(2) The petition alleges under oath facts, which shall be set forth in detail, showing that\\u2014\\n(i) the mortgage debt and all interest due thereon have been fully paid, or\\n(ii) there is no default in the mortgage, or\\n(iii) some fraud was used by the mortgagee, or with his knowledge, in obtaining the mortgage.\\nClearly the conditions precedent to the granting of an injunction in Rule W 76 b 2, which is the only method in the W Rules to prevent a foreclosure sale before the sale has actually taken place, presume the existence of a valid mortgage on the subject property, something appellee claims does not exist. This rule, as do the other Chapter W Rules, assumes that the property to be sold is indeed the mortgaged property and thus does not provide for the existing situation. Appellee, given his unique factual position, informed the court of the alleged error by means of a Motion to Dismiss, a procedural device which appellants failed to challenge. Appellants did not object to proceeding on the Motion to Dismiss. We hold that Motion to be functionally equivalent to a petition for injunctive relief. We do not find any prejudice to the rights of appellants.\\nII.\\nNotice\\nIn argument before the circuit court appellants' attorney stated that\\n\\\"... This is one of those classic cases where title insurance should protect a buyer who buys \\u2014 it's my belief and to my knowledge Mr. Koch's client (appellee) is, in fact, a third-party bona fide purchaser for a consideration. That's why we buy title insurance when we buy real estate, to avoid against unrecorded or missindexed (sic) or unindexed other liens against the property.\\\"\\nAppellants now argue before us, as they also argued before the circuit court, that \\\"... appellee is not a bona fide purchaser of the property .\\\" because he had constructive notice of appellants' recorded Modification Agreement. Appellants contend that appellee is charged with this notice regardless of a missing or erroneous index entry.\\nIn support of this argument, appellants cite Standard Finance Co. v. Little, 159 Md. 621, 152 A. 264 (1930) for the proposition that indexing is separable and distinct from recording and that failure of the clerk \\\"to index does not affect the validity or enforceability of the recorded instrument.\\\" In Standard, the Court affirmed the trial court's sustaining of a demurrer to the mortgagee's declaration filed against the court clerk for damages which allegedly resulted from the failure of the clerk to index the mortgage. Judge Bond for the Court explained the case this way:\\nThe appellant contends that the indexing of conveyances is a part of the recording which is required to pass title, and that without an indexing of the particular instrument the recording was not complete, the mortgage lien was not preserved as against a subsequent vendee without actual notice of it, and there having been a conveyance to such a vendee the appellant was deprived of his security by the omission of the clerk.\\n159 Md. at 622, 152 A. 264.\\nThat in Standard the Court held \\\"[t]he lien would be secured and continue unaffected by the omission from the index, and that the declaration does not therefore show the possibility of loss assumed,\\\" Id., does not mean that the lien holder would have been successful in actual litigation of that issue. The declaration filed in the Court of Common Pleas of Baltimore City by the plaintiff-mortgagee (appellant) indicates no foreclosure proceedings were filed and no litigation was filed by the mortgagee against the bona fide purchaser for value without notice. The basic allega tion was that because the clerk failed to index the mortgage, Standard, the mortgagee, lost its security and therefore demanded damages from the clerk. Standard was decided within the very narrow question of the liability of the clerk for his failure to index. Based on the foregoing we hold that Standard is not controlling on the issue in the case sub judice.\\nStandard may be further distinguished in that there is no indication at all in Standard that the mortgagee knew that the mortgage had not been indexed. It has been held that failure to index did not affect constructive notice where the failure was not the fault of the mortgagee. Scott v. Thomas, 211 Ala. 420, 100 So. 778 (1924). Although in the case before us, the stipulated facts refer to the return of the \\\"red-tagged\\\" Modification Agreement to the \\\"Storers' \\\" attorney, we find in the transcript of the argument that appellant's counsel stated:\\n\\\"... my client may have been out if the title attorney did not resubmit it in compliance with the Clerk's request. But that information did not do it, he did not send it back to the Clerk's office, to have it re-recorded and indexed but, in fact, the Clerk's office recorded it and that becomes a significant distinction.\\\" (Emphasis added).\\nFrom this we conclude that the \\\"red tagged\\\" document was returned to the attorney who handled the settlement and that then it became his obligation to act. From the record before us and from appellants' confirmation of the foregoing at oral argument, we infer that appellants, through the settlement attorney, were on notice that the Modification Agreement had been \\\"red-tagged\\\" and from that point on they were responsible for returning the Modification Agreement containing the necessary references to the clerk. We agree with the reasoning of the trial judge:\\nIn Standard Finance Co. v. Stephen L. Little, 159 Md. 621 [152 A. 264] (1930), our Court of Appeals held that a failure to index does not affect the validity of a deed or other instrument that is otherwise properly recorded. The Court feels that the Standard Finance case, although applicable, is not controlling based upon the facts of the matter before the Court. It is undisputed that the grantee in this case was on notice that reference to the \\\"modification agreement\\\" was not being placed in the index to the Land Records. Faced with such knowledge, it was incumbent that the Grantee correct the deficiency in the instrument and return it to the Land Records Division so that it could be properly re-recorded and indexed accordingly. To hold otherwise would be to place an unreasonable burden upon the Defendants, and other would-be purchasers of real estate, to search the voluminous records of land transactions without any reference whatsoever. The object and purpose of the recording act is to put interested parties on notice. To allow a party to record an instrument with knowledge that it will not be indexed would be to flaunt the purpose of the act and render its provisions a nullity.\\nThe trial court's conclusion is supported by Plaza Corporation v. Alban Tractor Company, Inc., 219 Md. 570, 151 A.2d 170 (1959). Preliminarily we point out that on the indexing issue Plaza may be distinguished from the case sub judice because Section 26 of Title 2 of the Baltimore County Code (Everstine, 1955) made indexing an essential part of the recordation in the chattel records; however, that case also spoke in dicta to the distribution of risk based on the position and responsibility of the parties. The Plaza Court observed:\\nWho must suffer for the clerk's mistake? There is a division of opinion in this country as to the correct answer to this question. Some cases hold that the grantee controls the instrument; he can record it or not as he pleases; he, alone, has the right and the opportunity to see that it is properly recorded by the registration officer; hence, if he fails to give the notice required by law, he must bear the consequences, and third persons need not go beyond the records to ascertain the title of the property involved. Other cases, under certain statutes and construction of statutes, which make instruments operative as records from the time they are filed for record, hold to the contrary, and state that any error occurring after the instrument is filed for record is chargeable to third persons. 8 Thompson, Real Property, (Permanent Ed.), secs. 4371, 4372 and 4373; 4 American Law of Property, sec. 17.31; 5 Tiffany, Real Property, (3rd Ed.), sec.\\nTiffany, op. cit., and the American Law of Property place Maryland in the first category with the case of Brydon v. Campbell, 40 Md. 331. There, a deed conveyed a four-tenths portion of a tract of land. By mistake, the clerk transcribed it upon the register as a fourteenth part thereof. This Court held that a third party was only chargeable with constructive notice of what the record disclosed.\\n219 Md. at 584, 151 A.2d 170. We hold that where, as here, the grantee has control of the lien instrument and has knowledge that the instrument is defective for the purpose of indexing, he must act in order to correct the defect so that the instrument may be indexed properly. If he fails to do so, he cannot claim constructive notice to persons without actual notice. To permit him to do so would place an unreasonable burden on the public generally. For us to hold otherwise could lead to gross unfairness to purchasers of property and be the basis for great mischief by unscrupulous persons. All that an unscrupulous mortgagee or lien holder would have to do is submit a defective instrument for recordation, have the clerk record it but not index it because of the defect and then have the property sold to an unsuspecting buyer, and then foreclose on the unindexed mortgage leaving the innocent purchaser in the position of either losing his property or paying off the unindexed mortgage.\\nWe hasten to add that our holding here is not inconsistent with the holdings in Standard and Plaza. Where the creditor under the lien instrument does not have control of the instrument and is not on notice that it has not been properly indexed, there would be constructive notice. Our holding in this case does not change that principle of Maryland law.\\nIII.\\nMd. Real Prop.Code Ann. \\u00a7 3-104(f)\\nIn the alternative, appellee argued in the trial court that even if the Modification Agreement were validly recorded, he still could not be charged with notice of its existence because it failed to comply with the statutory prerequisites to recording set out in Md. Real Prop.Code Ann. \\u00a7 3-104(f) (1981 Repl.Vol, 1985 Cum.Supp.). Appellant responded to this argument by claiming that \\u00a7 3-104 is inapplicable to Modification Agreements and even if it does apply, it is irrelevant once the instrument has been accepted by the clerk and recorded.\\nThe prerequisites to recording are contained in Md. Real Prop.Code Ann. \\u00a7 3-104 which, in pertinent part, provides:\\n(f) Local and special requirements. \\u2014 (1) No fee-simple deed, mortgage, or deed of trust may be recorded in Montgomery County, Prince George's County, or Washington County unless it bears a certification that the instrument has been prepared by an attorney admitted to practice before the Court of Appeals, under his supervision, or by or on behalf of one of the parties named in the instrument.\\n(2) Every deed recorded in Prince George's County shall contain a reference to the election district in which the property described in the deed is located.\\nIt is conceded that appellants' Modification Agreement did not meet the above requirements.\\nIt is patently clear to us that appellants' Modification Agreement is subject to the prerequisites set out above. The effect of this instrument is to release one property from the Storers' original Deed of Trust and encumber or mortgage another; that is its dual effect. The real issue here is the intended effect of the document and what it did. \\\"Equity is concerned with substance and not with form.\\\" Peninsula Methodist Homes and Hospitals, Inc. v. Cropper, 256 Md. 728, 735, 261 A.2d 787 (1970).\\nWe decline to reach the issue of whether the foregoing prerequisites are irrelevant once an instrument has been accepted by the clerk and recorded because that issue was not decided by the trial court, Rule 1085, and it is unnecessary in light of our resolution of the notice issue.\\nJUDGMENT AFFIRMED;\\nCOSTS TO BE PAID BY APPELLANTS.\\n. The Storers were named in the action below solely because of the requirement of Rule W74 that they, as mortgagors, be given notice of the pending foreclosure proceedings. The Storers no longer have any interest in the real property at issue and they did not appear below.\"}"
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+"{\"id\": \"2265719\", \"name\": \"Roy SMITLEY v. STATE of Maryland\", \"name_abbreviation\": \"Smitley v. State\", \"decision_date\": \"1985-02-06\", \"docket_number\": \"No. 770\", \"first_page\": \"477\", \"last_page\": \"486\", \"citations\": \"61 Md. App. 477\", \"volume\": \"61\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:49:30.373427+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Roy SMITLEY v. STATE of Maryland.\", \"head_matter\": \"487 A.2d 315\\nRoy SMITLEY v. STATE of Maryland.\\nNo. 770,\\nSept. Term, 1984.\\nCourt of Special Appeals of Maryland.\\nFeb. 6, 1985.\\nGary S. Offutt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.\\nStephanie J. Lane, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen.j Kurt Schmoke, State\\u2019s Atty. for Baltimore City and Samuel Brave, Asst. State\\u2019s Atty. for Baltimore City, Baltimore, on brief), for appellee.\\nArgued before WILNER, ALPERT and GETTY, JJ.\", \"word_count\": \"2878\", \"char_count\": \"17170\", \"text\": \"WILNER, Judge.\\nThis appeal indicates the existence of some confusion regarding the manner in which a court may enter, preserve, and enforce an order of restitution following a criminal conviction. We shall try, in this Opinion, to clarify the court's options.\\nRoy Smitley is an unfortunate soul; he is an alcoholic and suffers from epilepsy. Perhaps, in part, by reason of the former of those afflictions, he is no stranger to the criminal justice system.\\nIn January, 1982, Smitley was charged with disorderly conduct (No. 48210310) and battery (No. 48210311). The case somehow reached the Circuit Court for Baltimore City, where Smitley pled guilty, was found guilty, and, on September 23, 1982, was sentenced. We do not have before us a transcript of the disposition hearing conducted by Judge Perrott. The docket entry for that day shows the following:\\n\\\"Judgment: as to 48210310 \\u2014 Sixty (60) da[y]s to Department of Correction concurrent to 48210310 [sic ] \\u2014 Pay costs thru Probation. Judgment: as to 48210311 \\u2014 Two (2) years to Department of Correction from 9-22-82 to suspended \\u2014 Three (3) years supervised probation. Make restitution and pay Costs thru Probation, Perrott, J.\\\"\\nThe Order for Probation signed by Judge Perrott that day recites that for \\\"Docket No. 48210310-11,\\\" \\\"execution of the sentence of 2 years has been suspended\\\" and that Smitley is released on probation for a period of three years \\\"subject to the following conditions.\\\" Among the nine enumerated conditions that followed were No. 4 \\u2014 \\\"Obey all laws\\\" \\u2014 and No. 9:\\n\\\"Shall pay, through the Division of Parole and Probation the sum of $1420.00 as follows:\\nCourt costs of $220.00;\\n[and]\\nRestitution of $1200.00 to Ron Bauer\\\"\\nNo appeal was taken from this judgment.\\nIn November, 1983, Smitley was charged with having violated both of those conditions. At a hearing held on the matter on December 22, 1983, before Judge Kenneth L. Johnson, the State established that, in October, 1983, Smitley had been convicted in District Court of one count of disorderly conduct, two counts of malicious destruction of property, and one count of assault. For the disorderly conduct, he was sentenced to sixty days in jail, suspended in favor of eighteen months probation. On the other three convictions, he was sentenced to eighty-nine days in jail, of which, in each case, sixty days were suspended.\\nWith respect to the restitution, although the probation order clearly directed payment of only $1,420 total (including $220 court costs), the State contended that he was ordered to pay $1,444, of which only $169.50 had been paid, leaving an unpaid balance of $1,274.50. No one questioned, or explained, the $24 discrepancy.\\nUpon this evidence, Judge Johnson concluded that \\\"probation is a waste of time for you.\\\" He revoked the probation and entered the following judgment:\\n\\\"The sentence of the Court is that you be confined to the Department of Correction for a period of two (2) years and you will get credit for time served, the time that you have served since you got picked up on this warrant. In addition, you are to pay the balance of the costs and fines, in this case, and the total amount as I understand is $1,274.50, you are to make restitution. In other words, the order given to you by Judge Perrott is reinstated, the only difference being is that he had given you three years probation and I am saying that you are going to serve now the two years____\\\" (Emphasis added.)\\nCounsel immediately objected \\\"to the imposition of restitution and the fine,\\\" and, when asked why, responded, \\\"Because the original court order if the Court would look at the payment of the fines and restitution, now the Court seeks that and place that problem on Mr. Smitley.\\\" Although the court indicated no difficulty deciphering that explanation, it clearly was not impressed. It noted and overruled the objection.\\nNot to be outdone, the prosecutor decided to muddy things up a bit more by asking that \\\"the $1,444 . be attached to the parole.\\\" The probation officer advised the court that \\\"the account will be held in abeyance and upon his release he will commence his payments,\\\" presumably meaning that no restitution payments would be expected during the period of appellant's incarceration. The court then announced: \\\"It's going to be six months after he is released that he is going to be required to pay the restitution and the fine within that six months.\\\"\\nThe effect of that, everyone agreed, was; \\\"you are extending the probation for six months and when he gets released he will pay the balance of the $1,444____\\\" No further objection was noted. The docket entry is as follows:\\n\\\"Violation of Probation Hearing, Plea of Not Guilty-Verdict-Guilty: Judgment: as to case 482130311-Two (2) years to Department of Correction from 11-22-83 as to 48213010 Sixty (60) da[y]s to Department of Correction concurrent to 48210311. Probation to continue Six (6) months probation imposed to continue after release from serving the above judgment at which time the Defendant is to pay t[he] balance [sic ] of costs, fine and restitution of $1,274.50, Johnson, J.\\\"\\nAppellant complains in this appeal:\\n\\\"I. The trial court erred when, after reimposing Appellant's entire sentence, it ordered that he be placed on probation for six months after his release with a special condition that he pay the outstanding balance of restitution and costs.\\nII. The trial court erred when it ordered Appellant to pay restitution in a lump sum upon his release.\\nIII. Appellant is entitled to an additional day's credit.\\\"\\nThe State's response is that none of these complaints has been preserved for appellate review, and that, as to the first, there was no error in that the restitution was part of the original sentence.\\nWe agree with the State as to issues II and III. No objection was made below to the manner of payment of the restitution or to the alleged denial of an additional day's credit. For reasons shortly to be expressed, appellant's second complaint is moot; as to the third complaint, if there was error in not allowing a day's credit against the sentence, appellant may pursue the matter under Md.Rule 4-345.\\nAppellant did, we think, object to the ordering of restitution. Although counsel's articulation of the objection would likely have caused his English grammar teacher justifiably to seek early retirement, it does, nonetheless, suffice to preserve the issue for our review.\\nUntil 1977, the authority of a court exercising criminal jurisdiction to order restitution seems to have been somewhat limited. At least under \\u00a7 641A of art. 27, first enacted in 1970, and probably under its inherent authority even before then, where the court was otherwise empow ered to suspend execution of a sentence in favor of probation, it could direct the defendant to make restitution as a condition of the probation. See Coles v. State, 290 Md. 296, 429 A.2d 1029 (1981). Its ability to order restitution directly, as part of its sentence, appeared to depend upon specific statutory authority, however, and that was limited to certain burglary, fraud, and credit card offenses. See current Md.Code Ann. art. 27, \\u00a7 29, 33, 33A, 145, and 230A, and former art. 27, \\u00a7 145, repealed by 1978 Md.Laws, ch. 849.\\nIn 1977, the General Assembly, in an attempt both to broaden and to confirm the power to order restitution, enacted new \\u00a7 640 to art. 27. In subsection (b), the Legislature provided:\\n\\\"Upon conviction for a crime where property of another has been stolen, converted, unlawfully obtained, or its value substantially decreased as the direct result of the crime, or where the victim suffered actual medical expenses, direct out of pocket losses, or loss of earning as a direct result of the crime [, or if as a direct result of the crime, the victim incurred medical expenses that were paid by the Department of Health and Mental Hygiene or any other governmental entity],1 the court may order the defendant to make restitution in addition to any other penalty provided for the commission of the crime.\\\"\\nSection 640(c) provides that \\\"[w]hen an order of restitution has been entered pursuant to subsection (b), compliance with the order may be made as a sentence or condition of probation or parole.\\\" (Emphasis added.) Subsection (e) states: \\\"When a defendant fails to make restitution as ordered, the Division [of Parole and Probation] shall notify the court. The court may hold a hearing to determine if the defendant is in contempt of court or has violated the terms of the probation or parole.\\\" (Emphasis added.)\\nIt seems clear to us from these provisions that, while an order of restitution is, in all cases, a part of the court's judgment in the case, \\u00a7 640 continues to recognize two quite different methods for effecting its enforcement by \\\"non-conventional\\\" means. If the order is made \\\"as a sentence,\\\" it may, if the State shows an ability on the part of the defendant to comply with the order, be enforced through contempt proceedings. If, on the other hand, the order is not stated \\\"as a sentence\\\" but rather as a condition of probation or parole, it may be enforced through the power to revoke the probation or parole.\\nAlthough it may be possible for a court to do both when entering its judgment, i.e., to order restitution as part of a sentence and, if another part of the sentence is suspended in favor of probation, to order payment of the restitution as a condition of that probation, there is, nevertheless, a significant distinction between the two methods. The nub of the distinction is the inability of the court to increase or enhance a sentence that has once and validly been imposed.\\nSee Mitchell v. State, 58 Md.App. 113, 472 A.2d 494 (1984); Williams v. State, 45 Md.App. 596, 414 A.2d 254 (1980).\\nWhen restitution is ordered \\\"as a sentence,\\\" enforcement through contempt proceedings serves merely to implement the sentence, not to enhance it. It is an additional remedy to that provided in \\u00a7 637. Similarly, when restitution is attached as a condition to probation and, upon noncompliance, the court revokes the probation and directs execution of all or any part of the suspended sentence, the initial sentence has merely been implemented, not enhanced. It may even be possible, pursuant to \\u00a7 642 of art. 27, for the court to direct execution of the suspended sentence, suspend anew a part of that sentence, place the defendant on further probation, and continue an order of restitution as a condition of the new probation. What the court may not do, however, when the restitution is not \\\"as a sentence\\\" but only a condition of probation, is to direct execution of the full term of the suspended sentence and continue the restitution order, either \\\"as a sentence\\\" or as a condition to some further probation. That is equivalent to increasing, not merely implementing, the suspended sentence.\\nThe record before us shows that Judge Perrott did not order the restitution at issue here \\\"as a sentence,\\\" but rather as a condition of probation. Although the docket entry may be a bit ambiguous as to the nature of the restitution order, the Order for Probation is not. It clearly reflects the sentences to be confinement for sixty days and two years, respectively, and that payment of the restitution (and court costs) was merely one of the nine conditions of probation. Accordingly, when Judge Johnson revoked the probation, he necessarily revoked the conditions attached to it, including the conditions relating to payment of restitu tion and court costs. As we have indicated, he could, under \\u00a7 642, have attached those conditions (or others) as part of a new probation, but only if he directed execution of less than the full term of the suspended two-year sentence. By directing execution of the full two-year term of confinement, however, Judge Johnson effectively precluded a continuation of the restitution order.\\nIt is clear, then, that the judgment actually rendered cannot stand. The question is what to do about it.\\nMd. Rule 1071 b provides that \\\"[i]f in an appeal in a criminal action this Court shall reverse the judgment for error in the judgment or in the sentence, this Court will remand the case to the lower court in order that such court may pronounce the proper judgment or sentence.\\\" What is \\\"the proper judgment or sentence\\\"?\\nBy a number of recent enactments, the General Assembly has made clear, as a matter of State public policy, that the individual victims of crime are entitled to consideration during the sentencing phase of criminal proceedings. See, for example, 1982 Md.Laws, ch. 494, amending Md.Code Ann. art. 41, \\u00a7 124, to provide for victim impact statements, and the 1975 amendment to art. 27, \\u00a7 637, permitting the court to direct that a restitution order be paid out of \\\"work release\\\" earnings. 1975 Md.Laws, ch. 740. Section 640 of art. 27 is also part of that expression of concern for the rights of victims. Although a fine or imprisonment may suffice to redress the State's corporate and collective grievance against the transgressor of its criminal laws, those penalties do nothing to redress the economic harm that the defendant inflicted upon his chosen victim. That is the function of restitution. Where appropriate and capable of implementation, an order of restitution can make the court's judgment a complete one, providing satisfaction to both the State and to the person most particularly harmed.\\nThat is what Judge Perrott intended to accomplish. It is also what Judge Johnson desired to accomplish. Unfortunately, he could not give both the State and the individual victim the full measure of satisfaction because of the way-in which the initial judgment was framed. Whether, when put to the choice, he would have sacrificed the restitution in favor of directing execution of the full prison sentence, or, conversely, to save the restitution, would have ordered the execution of less than the full sentence, we cannot tell. Either, under the law, would be proper.\\nRather than simply strike the restitution order then, as Smitley urges us to do, we shall vacate the entire sentence and remand the case in order that the circuit court \\\"may pronounce the proper judgment or sentence.\\\"\\nFINDING OF VIOLATION AFFIRMED; SENTENCE VACATED; CASE REMANDED TO CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDING; MAYOR AND CITY COUNCIL OF BALTIMORE TO PAY THE COSTS.\\n. The original sentence did not include a fine.\\n. The original restitution order, as noted, was for $1,420. If $169.50 had been paid, the balance due would be $1,250.50. The court found the balance due to be $1,274.50.\\n3. The bracketed language was not in the 1977 enactment, but was added by 1981 Md.Laws, ch. 160.\\n. We call everyone's attention to \\u00a7 637 of art. 27, first enacted in 1809, providing more conventional methods of enforcing restitution orders. Section 637 states:\\n\\\"In all cases where restitution or reparation is adjudged to be made to the party injured and immediate restitution or reparation is not fully made, the court before whom the offender is convicted shall either issue execution against the property of the convicted person in the name of the person injured for the value of the property taken, or so much thereof as is not restored, the value to be estimated by the court, or order restitution in an amount not to exceed 20 percent of any earnings less other deductions required by law to be paid out of any funds earned by the defendant under a 'work release' plan. The provisions of this section may not deprive the party injured from having and maintaining a civil action against the offender, either before or after conviction, or against any other person, for the recovery of the money received or property taken, or the value thereof.\\\"\\n. We do not consider here whether the court may order restitution as a condition of parole or seek to revoke a parole for noncompliance with such a condition, or whether that authority is vested exclusively in the Governor and the Division of Parole and Probation.\\n. A court cannot, of course, do indirectly under \\u00a7 642 what it cannot do directly. It must keep in suspension a sufficient amount of the sentence so as not to make its new sentence the real equivalent of an increased sentence. We doubt that hard and fast rules can be drawn in this regard; it would seem to be a matter of basic fairness, common sense, and sound judicial discretion.\\n. Counsel for appellant advised us at oral argument of the possibility that appellant may be paroled before the mandate in this case will issue. If that proves to be the case, the court will obviously have to take account of that circumstance in reconsidering its sentence.\"}"
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+"{\"id\": \"2267898\", \"name\": \"HOWARD CHESTER KELLY, JR. v. STATE OF MARYLAND\", \"name_abbreviation\": \"Kelly v. State\", \"decision_date\": \"1980-04-10\", \"docket_number\": \"No. 655\", \"first_page\": \"212\", \"last_page\": \"217\", \"citations\": \"45 Md. App. 212\", \"volume\": \"45\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:24:17.248454+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HOWARD CHESTER KELLY, JR. v. STATE OF MARYLAND\", \"head_matter\": \"HOWARD CHESTER KELLY, JR. v. STATE OF MARYLAND\\n[No. 655,\\nSeptember Term, 1979.]\\nDecided April 10, 1980.\\nThe cause was argued before Thompson, Couch and MacDaniel, JJ.\\nTimothy E. Meredith and Barbara Mello, with whom were Robert W. Warfield and Corbin, Heller & WarGeld, Chartered on the brief, for appellant.\\nWilliam H. Kenety, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren Duckett, State\\u2019s Attorney for Anne Arundel County, and Ronald Naditch, Assistant State\\u2019s Attorney for Anne Arundel County, on the brief, for appellee.\", \"word_count\": \"2055\", \"char_count\": \"12038\", \"text\": \"Thompson, J.,\\ndelivered the opinion of the Court.\\nAppellant's major contention on appeal is that his conviction under Md. Code, Art. 27, \\u00a7 554 for unnatural or perverted sexual practices is an unconstitutional infringement of his right to privacy. He also argues he was denied equal protection, and subjected to cruel and unusual punishment.\\nThe prosecutrix testified at the time of the trial that she was abducted at knifepoint on the parking lot of Harundale Mall in Anne Arundel County, Maryland on the afternoon of May 5, 1978, by two young men, appellant Howard Chester Kelly, Jr., and his friend, Ronald Holden. It was her testimony that she was driven, against her will, to a secluded area, an abandoned missile site in Anne Arundel County, where she was assaulted, raped and forced to engage in fellatio. According to the prosecutrix, at the conclusion of the sexual encounter the defendant abandoned her at the missile site. She wandered to a nearby house saying she was \\\"dumped\\\"; the lady of the house called the police. Later the same afternoon the appellant was arrested.\\nAt the time of trial, the appellant and his friend each took the stand and testified, admitting that Holden had had sexual intercourse with the prosecutrix and that she had performed fellatio on each of them a number of times. They testified that the entire episode was at the prosecutrix's urging and initiative. According to the defendants, they and the prosecutrix had spent time together that afternoon in a pool hall at Jumpers Mall. It was at the suggestion of the prosecutrix, who claimed that she used to live in the area, that they drove to the abandoned missile site. They testified that after arriving at the missile site, the prosecutrix was an eager and willing participant in all sexual activities that took place, and that all that had occurred was with her consent.\\nThe jury found appellant not guilty on all counts of the indictment in which force or threat of force was an element, but found him guilty under count six, \\\"Perverted Sexual Practices.\\\" The constitutional questions raised here were properly preserved in appropriate objections to the instructions, as well as otherwise. Judge Raymond G. Thieme, Jr., sitting in the Circuit Court for Anne Arundel County, imposed a sentence of one year which was suspended. A three year period of probation was imposed.\\nThe Supreme Court has recognized that the right of privacy may be constitutionally protected in e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977). The issue in the present case is whether the right of privacy applies to the type of conduct prohibited by \\u00a7 554. In Carey v. Population Services, supra, the Supreme Court, in its most recent case interpreting the right to privacy, stated that the Court had not answered the question to what extent the Constitution prohibits the state from regulating private consensual sexual behavior among adults. 431 U.S. at 688, n. 5, 97 S. Ct. at 2018. Thus far, the right to privacy has been held by the Court to apply to the marital relationship; Griswold, supra, the right of individuals to decide whether to bear children; Eisenstadt v. Baird, supra, and the decision whether to terminate pregnancy; Roe v. Wade, supra. For a summary of other cases where the Court said that privacy applies, see, Carey, supra, 431 U.S. at 685, 97 S. Ct. at 2016.\\nIn Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd. mem., 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751 (1976), petitioners challenged the constitutionality of a Virginia sodomy statute as applied to adult male consensual conduct. In analyzing whether the Constitution prohibited such a statute, the District Court concluded that since sodomy \\\"is obviously no portion of marriage, home or family life,\\\" the state could appropriately punish sodomy in the promotion of morality and decency. 408 F. Supp. at 1202. The Supreme Court affirmed this decision in a Memorandum Opinion. Insofar as a Memorandum Opinion is authority, it appears from our brief analysis of recent Supreme Court decisions that the right of privacy does not protect the perverted sex practice of which appellant was convicted in the present case. The rule that the right to privacy does not invalidate statutes prohibiting consensual sexual practices is supported by most other courts that have considered the question.\\nThe majority rule has received the support of this Court in dicta. In Hughes v. State, 14 Md. App. 497, 287 A.2d 299, cert. denied, 409 U.S. 1025, 93 S. Ct. 469, 34 L. Ed. 2d 317 (1972), this Court found that the accused had no standing to challenge the constitutionality of the perverted sex practices statute as a consenting adult when he had indulged in the practice with a minor. The Court stated:\\n\\\"Nothing we have said in determining that Hughes had no standing to contest the constitutionality of the statute is to be construed as implying that we believe that the statute is unconstitutional as to adults, married or unmarried, consenting to the acts proscribed. We shall decide that question when it is properly presented to us. We observe, however, that although it is conceivable that a husband and wife could be convicted under \\u00a7 554 even though the evidence established that the act was committed with the consent of both parties, we think it unlikely. We are not aware of a case in this jurisdiction where a husband or wife was convicted of the offense. If the acts were in private there would be no witnesses, and if consensual the parties would be equally guilty. Their testimony as witnesses would then require corroboration. Early v. State, 13 Md. App. 182. And of course, neither the husband nor the wife would be a compellable witness against the other. Code, Art. 35, \\u00a7 4. Mr. Justice Douglas, speaking for the Court in Griswold v. State of Connecticut, 381 U.S. 479, said, at 486:\\n'We deal with a right of privacy older than the Bill of Rights \\u2014 older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.'\\nWe share the sentiments of the court in Pruett v. State, 463 S.W.2d 191, 195 (Texas 1970) that to extend the protection of this right of privacy of the marital union to strike down a statute proscribing cunnilingus, fellatio, and the whole field of other unnatural or perverted sexual practice, when successful prosecution of private consensual sexual acts between married couples are at most only 'conceivable', is not consistent with the description of the marriage relationship and right of privacy described by Mr. Justice Douglas.\\\" 14 Md. App. at 503-05. (footnotes omitted).\\nWe are not persuaded to change the rule and invalidate a legislative prohibition against sodomy, in the absence of a clear lead from the Supreme Court of the United States or from the Court of Appeals of Maryland. We are especially reluctant to invalidate a crime of such ancient vintage. Sodomy was prohibited by Acts of 1793, Chapter 57, Sec. 10. See also Exodus 22:19, Leviticus 18:22-23, and Deuteronomy 23:17.\\nAppellant argues that inasmuch as fornication is not prohibited by Maryland law, persons indulging in private, consensual acts of sodomy are denied equal protection of the law. The argument is that there is no essential difference between vaginal intercourse and other sex acts. He also argues that any punishment for sodomy is cruel and unusual. Once again we repeat, we will not invalidate laws of such ancient vintage without clear authority from higher courts.\\nJudgment affirmed.\\nAppellant to pay the costs.\\n. Art. 27, \\u00a7 554 in pertinent part reads as follows:\\n\\\"\\u00a7 554. Unnatural or perverted sexual practices.\\n\\\"Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.\\n. Appellant claims both the Constitution of the United States and the Constitution of Maryland were violated; his arguments, however, are based on alleged violations of the federal constitution. We will so limit our opinion.\\n. See, Doe v. Commonwealth, supra, State v. Bateman, 113 Ariz. 107, 547 P.2d 6, cert. denied, 429 U.S. 864 (1976); Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973), cert. denied. 416 U.S. 905 (1974); Dixon v. State, 256 Ind. 266, 268 N.E.2d 84 (1971); Hughes v. State, 14 Md. App. 497, 287 A.2d 299, cert. denied, 409 U.S. 1025, 93 S. Ct. 469, 34 L. Ed. 2d 317 (1972); State v. Elliott, 89 N.M. 305, 551 P.2d 1352 (1976); Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (1971); People v. Mehr, 87 Misc. 2d 257, 383 N.Y.S.2d 798 (1976); and People v. Rice, 87 Misc. 2d 257, 383 N.Y.S.2d 799 (1976). aff'd. 41 N.Y.2d 1018. 363 N.E.2d 1371, 395 N.Y.S.2d 626 (1977); State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843 (1979); Canfield v. State, 506 P.2d 987 (Okla. Crim. App. 1973), appeal dismissed, 414 U.S. 991, 94 S. Ct. 342 (1973), reh. denied, 414 U.S. 1138, 94 S. Ct. 884 (1974); Pruett v. State, 463 S.W.2d 191 (Tex. Crim. App. 1970), appeal dismissed, 402 U.S. 902, 91 S. Ct. 1379, reh. denied, 403 U.S. 912, 91 S. Ct. 2203 (1971); State v. Rhinehart, 70 Wash. 2d 649, 424 P.2d 906, cert. denied, 389 U.S. 832 (1967).\\nBut see, Cotner v. Henry, 394 F.2d 873 (7th Cir.), cert. denied, 393 U.S. 847 (1968); Buchanan v. Batchelor, 308 F. Supp. 729 (N.D. Tex. 1970), vacated on other grounds 401 U.S. 989, 91 S. Ct. 1221. 28 L. Ed. 2d 526 (1971); State v. Pilcher, Io., 242 N.W.2d 348 (1976); Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974); People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976); State v. Ciuffini, 164 N.J. Super. 145, 395 A.2d 904 (1978); New York v. Onofre, 48 U.S.L.W. 2520 (Feb. 12, 1980) (N.Y. Sup. Ct., App. Div. 4th Dept.).\\nSee also, Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977 (1976); State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977); People v. Jose L., 99 Misc. 2d 922, 417 N.Y. Supp. 2d 655 (1979); Tribe, American Constitutional Law, \\u00a7 15-13 (1978); Craven, Personhood: The Right to Be Let Alone, 1976 Duke Law J. 699 (1976); Richards, Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory, 45 Fordham L. Rev. 1281 (1977) ; Wilkinson and White, Constitutional Protection for Personal Lifestyles, 62 Cornell L. Rev. 563 (1977); Note on Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L. Rev. 670 (1973); Annot. 58 A.L.R.3d 636 (1974).\"}"
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+"{\"id\": \"2288805\", \"name\": \"HENRY MAY GITTINGS et al. v. GEORGE R. MORRIS et al.\", \"name_abbreviation\": \"Gittings v. Morris\", \"decision_date\": \"1929-02-15\", \"docket_number\": \"No. 44\", \"first_page\": \"565\", \"last_page\": \"581\", \"citations\": \"156 Md. 565\", \"volume\": \"156\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:50:01.936158+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HENRY MAY GITTINGS et al. v. GEORGE R. MORRIS et al.\", \"head_matter\": \"HENRY MAY GITTINGS et al. v. GEORGE R. MORRIS et al.\\n[No. 44,\\nOctober Term, 1928.]\\nDecided February 15th, 1929.\\nThe cause was argued before Bond, C. J., Pattison, I\\u00edrner, Adkins, Oeftttt, Digges, Parke, and Sloan, JJ.\\nWilliaon Cabell Bruce and Joseph 8. Goldsmith, for the .appellants.\\nWalter C. Mylander, with whom was Nathan Patz on the brief, for the appellees.\", \"word_count\": \"5399\", \"char_count\": \"31320\", \"text\": \"Pattison, J.,\\ndelivered the opinion of the Court.\\nA tract of land in Baltimore City, known as the \\\"Ashburton\\\" farm, containing 191.508 acres, was devised by John S. Gittings to his grandson John S. Gittings for the term uf his natural life, and after his death to his children who survived him.\\nOn or about the 17 th day of November, 1904, John S. Gittings, the grandson, filed in the Circuit Court of Baltimore City his bill of complaint against his children, Henry May Gittings, Gladys H. Gittings, Dorothy R. Gittings, John Sterrett Gittings, Frederick May Gittings, appellants in this case, asking for the sale of said land under section 243 of article 16 of the Public General Laws of Maryland. On the 24th day of January, 1905, a decree was passed as prayed, by which decree the proceeds arising from the sale of said land were to be reinvested in accordance with the provisions of the above mentioned statute.\\nThereafter a sale was made of a part of said land to the Ashburton Land & Improvement Company. The purchase money was never paid therefor, nor was the property ever conveyed to the purchaser, and on the 10th day of March, 1920, John S. Gittings, as trustee, with the consent of the Ashburton Land & Improvement Company, of which he was president, sold at private sale said lands, consisting of 167.271 acres, more or less, to George R. Morris, at and for the sum of $459,995.25, subject to the approval of the court. This sale the trustee reported on the 23rd day of March, 1820, and was finally ratified by the court on the 24th day of April, 1920.\\nThe contract and report of sale both show that 24.237 acres of the land for the sale of which the decree was obtained were not sold, but reserved by the trustee. Its location is shown on the plat filed with the report of sale, and is designated thereon as \\\"Reservation.\\\"\\nIt is also shown by said contract, as well as by the report of sale, that the said lands were sold upon certain restrictions and conditions, among which are found the following: \\\"It is understood and agreed that all houses built on that part of land hereby sold and designated 'C' on said plat, shall, if built on roads, or streets bounding the part marked 'Reservation' on said plat, face the property marked 'Reservation' and all such houses shall be single dwellings built on lots of not less than fifty feet front, or groups of not more than six houses to a group, the minimum cost of each house to be five thousand 'dollars ($5,000) and the houses facing said Reservation' if in groups to be of the same general type of exterior architecture as those built by party of second part and known as University Homes, a photograph of some of which is hereto attached as part hereof for the purpose of defining the general type of architecture above mentioned.\\\"\\nAnd in the sale of the property mentioned, the following-conditions or restrictions were imposed upon the property reserved: \\\"All houses facing the roads bounding said restricted parts shall be of the same general type of architecture as the University Homes hereinbefore mentioned and shall be built either singly or in groups of not more than six (6) houses to a group; in the case of single houses, they shall be built on lots having a frontage of not less than fifty (50) feet, and other houses shall likewise be built if singly \\u2022on lots of not less than fifty (50) feet front or in groups \\u2022of not more than six (6) houses to a group, and no house built on said Reservation' shall cost less than five thousand \\u2022dollars ($5,000) each. Said property may, however, be sold to the City of Baltimore for park or recreation or other public purposes without restrictions.\\\"\\nOn th\\u00e9 8th day of July, 1920, John S. Gittings, trustee, filed a petition in said case in which he asked that the lot of land known as 'Reservation,\\\" be relocated, for the reasons stated therein, with the approval of the purchaser Morris, by removing it seventy feet eastward, without diminishing or increasing the amount of the land so reserved. In addition thereto, the petitioner asked that he be allowed to correct a mistake upon the plat filed, made in designating the lands marked \\\"A\\\"; and with his petition he filed a corrected plat. Attached to the petition was the consent of Morris that the report of sale should be amended as asked for by the petitioner; and upon the petition and consent thereto, an order was passed by the court amending the report of sale, as prayed, and allowing the corrected plat to be substituted for the one previously filed with the report of sale.\\nThereafter, on the 26th day of October, in the year 1920, John S. Gittings, trustee, executed and delivered to George R. Morris a deed whereby he conveyed to Morris the tract of land sold to him as aforesaid. In this deed is the following provision, which is not found in said contract, the report of sale, or the amended report of sale: \\\"And whereas said sale was made subject to the following covenants, conditions, agreements, restrictions, all of which are intended to form a part of the consideration of this deed, and which are to run with and bind the land herein described, and the parties hereto, their heirs, personal representatives and assigns, and those entitled in remainder, their heirs, personal representatives and assigns, and all owners and occupants thereof.\\\"\\nOn the same day, and after the delivery of the deed from John S. Gittings, trustee, to George R. Morris, the latter executed and delivered to the Eorthwest Real Estate Company, a body corporate, a deed, dated October 26th, 1920, conveying to said corporation the tract of land which had been conveyed to him by John S. Gittings, trustee.\\nThereafter, on the 3rd day of August, 1922, John S. Git-tings, trustee, filed a petition in which, after referring to the restrictions imposed upon the property sold under said contract, and to the stipulations therein relating to the unsold property known as \\\"Reservation,\\\" he alleged:\\nFirst, that the petitioner, with George R. Morris and the Northwest Real Estate Company, had agreed, subject to the sanction and approval of the court, that in lieu of the two paragraphs of the contract of sale, containing the restrictions, hereinbefore fully set out, the following paragraphs should he substituted, and the same considered as having been originally inserted in said contract:\\n\\\"It is further understood and agreed that all houses built on that part of land hereby sold and designated 'O' on said plat, shall, if built on roads, or streets bounding the part marked 'Reservation' on said plat, face the property marked 'Reservation' and all such houses shall be single dwellings built on lots of not less than fifty feet front.\\n'It is further agreed that the property marked 'Reservation' on said plat shall be restricted in the same manner as the property facing said 'Reservation', said 'Reservation' or any part thereof, however, if acquired by the City of Baltimore for park, or recreation or other public purposes may be used without restrictions.\\\"\\nSecond: That the petitioner, with George R. Morris and the Northwest Realty Company, had also agreed, subject to the ratification and approval of the court, upon the following, to have the same effect as though originally inserted in said contract of sale:\\n'No building, fence, wall or other structure shall be commenced, erected or maintained, nor shall any addition to or change or alteration therein be made; until the plans and .specifications, showing the nature, kind, shape, height, materials, location and approximate cost of such structure and the grading plan of the plot to be built upon shall have been submitted to and approved in writing by a committee of three, one representing John S. Gittings, Trustee, and the other representing The Northwest Real Estate Company, and a third to be Edward L. Palmer, or such other architect as said two parties may from time to time agree upon, the fees and expenses of the architect so employed to be borne by said The Northwest Real Estate Company as to its property and by John S. Gittings, Trustee, as to the 'Reservation.' The said committee shall have the right to refuse to approve any such plans or specifications or grading plan, which are not suitable or desirable, in its opinion, for aesthetic or other reasons and in so passing upon such plans, specifications and grading plan it shall have the right to take into consideration the use and suitability of the proposed \\\"building or other structure and of the materials of which it is to be built, to the site upon which it is proposed to erect the same, the harmony thereof with the surroundings and the effect of the building or other structure, as planned, on the outlook from adjacent or neighboring property.\\\"\\nOil the same day the court ordered and decreed \\\"that the action of the said trustee in making the several agreements with George R. Morris and the Northwest Real Estate Company particularly set forth in said petition, making changes, in, additions to and modification to the contract of sale between the said trustee and the said George R. Morris, be and the same are hereby ratified and confirmed, to have the same effect as though the same had been originally inserted in said contract of sale.\\\"\\nThereafter, on September 28th, 1922, John S. Gittings, trustee, filed a petition in which he alleged that he, with the said George R. Morris and the Northwest Real Estate Company, had agreed, subject to the ratification and approval of the court, that the petition filed on August 3rd, 1922, be-amended by adding to the clause last above quoted, to have-the effect as though originally inserted in the said contract,, the following: \\\"This clause shall apply only to that part of the land designated 'C' on said plat, which faces the property marked 'Reservation' thereon, and that part of the property marked 'Reservation' thereon which faces that part designated 'C' thereon.\\\" Upon said petition it was on the 28th day of September, 1928, ordered that it be amended as-prayed.\\nThe appellants, Erederick May Gittings, Dorothy R. Git-tings, and Henry May Gittings, conveyed all their right, title and interest in the aforesaid lands to Hugh L. Pope, one of the appellants, in trust and confidence for the uses and purposes therein set forth by their respective deeds, dated January 22nd, May 23rd, and June 8th in the year 1923.\\nAfter the purchase and conveyance of the lands named,, the Northwest Real Estate Company sold and conveyed lots-to numerous purchasers, among whom are the appelleesCharles M. Harkins, Annie B. Harkins, Bernard H. Hanlon, Harriett R. Hanlon, Eugene W. H. Lamotte and Helen V. Lamotte.\\nThereafter on the 23rd day of January, 1926, John S. Gittings trustee, departed this life, without having sold the-land reserved known as \\\"Reservation.\\\"\\nOn October 29th, 1927, the appellants, Henry May Git-tings, et al., filed their bill against George R. Morris and the other appellees, already named, in which they alleged the facts we have stated, together with the further facts that they were in possession of the property reserved, which is the subject of this suit, and the bill then charged that John S. Gittings, trustee, \\\"was not vested with authority in the performance of his duties as trustee to subject that part of the property involved in the said proceedings, which was not sold by him and which has been designated as the \\\"Reservation\\\" as hereinbefore stated, to any restrictions, whatsoever, and especially to such restrictions as are set forth in the report of sale which was filed in the above mentioned case on the 23rd day of March in the year 1920, and the petitions for amendment thereof, which were filed on the 3rd day of August in the year 1922, and the 28th day of September, in the year 1922, and that the Circuit Court of Baltimore City was without jurisdiction in the said case, to authorize or approve any contract or proceeding in any form, for imposition of such restrictions; that if such restrictions could at any time, or under any conditions, have been valid, the stipulations have now become impossible of performance, in 'consequence of the death of said John S. Gittings; that the said restrictions have been constantly ignored by the defendants, and with the approval of said George R. Morris and the Northwest Real Estate Company, by grantees from the last mentioned company, who have erected and maintained buildings on land to which the restrictions were in terms applicable, without having previously complied with the requirement that 'the plans .and specifications, showing the nature, kind, shape, height, materials, location and approximate cost of such structure, and the grading plan of the plot to be built upon shall have been submitted to and approved in writing by a committee of three, one representing John S. Gittings, trustee, and the other representing the Northwest Real Estate Company, and a third to be Edward L. Palmer, or such other architect as said two parties may from time to time agree upon'; that the said restrictions, if they were valid, would be burdensome and unreasonable, and would very much depreciate the property which is hereinbefore referred to as the 'Reservation' and in which your orators are interested in the manner hereinbefore set forth, and therefore, even though they are invalid, as contended by your orators, they constitute a serious cloud on the title of your orators.\\\"\\nThe bill then prayed that the court, by its decree, declare that the parcel of land described and designated as the \\\"Reservation\\\" in the case of John S. Gittings v. Henry May Gittings, et al. is free from any and all restrictions to which it may appear to have been the purpose of any person or persons or of the court to subject it. And second, for general relief.\\nTo this, the second amended bill, a demurrer was filed, which was sustained, and the bill dismissed. It was from the order sustaining the demurrer and dismissing the bill that the appeal in this case was taken.\\nThe grounds of the demurrer are:\\nFirst: That the plaintiffs failed to file with the bill, as exhibits, copies of written documents to which references were made in the bill.\\nSecond: That those persons named in the bill as purchasers of lots from the Northwest Real Estate Company, and who were made defendants thereto, did not adequately represent all of those who in like manner had purchased lots from said company. That more of such persons should have been made defendants.\\nThird: That the amended bill was insufficient in equity and law to entitle the plaintiffs to the relief sought.\\nFourth: That it is shown by such amended bill and the exhibits filed therewith, that the plaintiffs in this suit, Henry May Gittings and his brothers and sisters, were defendants in said suit instituted against them by their father in 1904, for the sale of the lands herein mentioned. That with their knowledge and participation therein, they must have known of the restrictions and conditions under which the land, was sold and of which they now complain. That by such restric tions and conditions they were benefited, in the enhanced value of their reserved or unsold land, and with that knowledge, they, the recipients of such benefit, cannot now in equity and good conscience assail the power and authority of the trustee to make the restrictions imposed upon the unsold land in the sale of the land made by him.\\nIn disposing of these objections, we will consider them in the order stated.\\nThe exhibits which the appellees claim under their first objection to the bill should have been filed with it are not-specifically stated by them. It would seem from an examination of the bill that a copy of every written document forming a part of the record in the former case and referred to in the bill under consideration was filed as an exhibit with it, except the bill of complaint and the will of the grandfather of the life tenant, John S. Grittings, which was more or less incidentally mentioned as the source from which the-property therein sought to be sold was derived. Though no-copy of the bill was filed as an exhibit at the time of the-court's action on the demurrer, as it should have been (Anderson v. Cecil, 86 Md. 490), it has since been, filed in the-lower court and is now in the printed record in this court, and as the case will on other grounds be remanded for further-proceedings we will not further discuss this omission.\\nThe demurrer should not in our opinion be sustained on the second objection thereto, where it is claimed that there-was a want of representation of defendants among those who-became purchasers of lots from the Northwest Real Estate Company. It was said in the argument, and not contradicted,, that a great number of persons had bought lots of that company, but none of these have asked to be made parties defendant to the bill. The Northwest Real Estate Company, it is. said, still owns much of the property and is vigorously defending its alleged rights and the rights of those to whom it. has sold lots, and we are unable to say, in passing upon this-demurrer, that it was necessary, in making a proper defense to the allegation of the bill, for more of such purchasers to. have been made parties defendant.\\nIt is claimed under the third objection to the bill of complaint that, in the sale of the land to Morris, the restrictions upon the unsold land were rightfully imposed, and, in consequence thereof, the plaintiffs are not entitled to the relief sought.\\nThe jurisdiction of a court of equity to decree a sale of land under Code, art. 16, sec. 213, the statute under which the lands mentioned herein were decreed to be sold, \\\"rests upon the concurrence of two conditions precedent, and they are that all parties in interest and in being, who would be entitled if the contingency had happened at the date of the decree, must be parties to the proceedings and the sale must be made to appear to be advantageous to the parties con\\u2022cemed.\\\" Ball v. Safe Deposit Co., 92 Md. 507.\\nThe concurrence of these conditions was shown to exist in the case of Gittings v. Gittings, in which the decree for the sale of the aforesaid lands Avas passed, and there Avas no question raised as to the jurisdiction of the court in the passage of that decree, and its validity is conceded by the appellants. In the sale of land under a decree, the court is the vendor and the trustee its agent under a special delegated authority to make the sale, and though the trustee .may depart from the special direction given him by the court, and thus exonerate it from its obligations to confirm his act, yet, if the court thinks it proper to do so, his act as agent of the court is as binding as if he had pursued in all respects the direction of the court. The subsequent ratification of his act having the .same effect as a previous authority. Harrison v. Harrison, 1 Md. Ch. 331; Andrews v. Scotten, 2 Bland, 629.\\nIn the light of these well established principles, we will inquire into the validity of the restrictions upon the unsold land of the plaintiffs.\\nThere are a number of these restrictions, but we will only consider those which are claimed by the plaintiffs, in their bill, to have been wrongfully imposed upon the lands reserved by the trustee, and which have the effect, as claimed by them, of casting a cloud upon their title to such land, of which they .are now the sole owners.\\nThe first of these restrictions is:\\n\\\"It is further agreed that the property marked 'Reservation' on said plat shall not be sold without its being restricted as. follows: All houses facing the roads bounding said restricted part, shall be of the same general type of architecture, as the-University Homes hereinbefore mentioned, and shall be built either singly or in groups of not more than six houses to a group; in the case of single houses, they shall be built on lots, having a frontage of not less than fifty (50) feet, and other houses shall likewise be built if singly on lots of not less than fifty feet front, or in groups of not more than six houses to. a group, and no house built on said 'Reservation' shall cost less than five thousand dollars each. Said property may, however, be sold to the City of Baltimore, for park or recreation,, or other public purposes, without restrictions.\\\"\\nThis restriction is found both in the contract and in the-report of sale. When the latter was filed, a conditional order was passed thereon, giving all parties interested an opportunity to show cause why it should not be ratified, and no-objections being filed thereto, and no cause to the contrary having been shown, it was finally ratified and confirmed.\\nThereafter the reserved land, before it was conveyed to the-purchaser, was relocated by an order of the court, passed upon a petition filed by the trustee, and assented to by the-purchaser, and the report of sale was so amended as to conform to the change made in the relocation of the lands. To. this action of the court, we do not understand the plaintiffs-urge any objection, as it in no way injuriously affected them.\\nThereafter the land was conveyed by the trustee to the-purchaser. In that deed the property reserved is described as relocated, and in it are found the restrictions above set out, that were imposed upon the unsold lands of the plaintiffs,, and also like restrictions upon the land sold to Morris. In addition thereto is found the provision that the covenants- and restrictions were to run with and bind the land therein described, and the parties thereto, their heirs, personal representatives, and assigns, and those entitled in remainder, tkeir heirs, personal representatives and assigns, etc. This last- provision gives the meaning and effect of the agreement of sale as intended and understood by the parties thereto.\\nThe deed, executed on the 26th day of October, 1920, was duly recorded among the land records of Baltimore City, and all persons, including appellants, were given constructive notice, at least, of its existence, and of what it contained.\\nTwo of the plaintiffs, Henry May Gittings and Gladys Gittings, are shown to have been adults at the time of the filing of the bill by their father in 1904, and the other three, as shown by the deeds executed by them to Pope, were adults in 1923. In fact, it was stated by the counsel for the defendant in the argument before us, and in their written brief, that the plaintiffs were all adults at the time of the sale and conveyance of the land, which statement was not contradicted.\\nThese restrictions, from which benefits accrued to the appellants, made with the approval of the court, and to which no timely objections have been made, are, we think, binding upon the appellants as the owners of reserved land.\\nThe land in this case was situated in the City of Baltimore, and its location naturally suggested that a better price could be obtained therefor if it were sold to be divided into lots for the erection of dwellings thereon. It was the duty of the trustees to offer the property in such manner as to bring its fair market value and to exercise the same judgment and prudence that a careful owner would exercise in the sale of his own property. Hopper v. Hopper, 79 Md. 402.\\nThe trustee, in the exercise of his judgment, thought that by a sale of the land, or a part of it, to be divided and sold in lots, the best price could be obtained therefor, and it was also thought by him, if it were ff> be so sold, restrictions should be placed thereon relating to the character of the buildings to be erected, the manner of their construction, and other restrictions conducive to the enjoyment and comfort of those who should occupy the dwellings to be erected thereon.\\nTo carry out this plan or scheme successfully it was neces sary to impose restrictions upon the unsold part lying near or adjacent to the sold land. The restrictions imposed upon the land sold would mean little or nothing to its owners, if the adjacent unsold land was not to be subjected to> like restrictions.\\nOn the 3rd day of August, 1922, two years after the execution of the deed, the court passed an order approving and ratifying an agreement made by the trustee with the Uorthwest Real Estate Company, by which it was agreed that, in lieu of the existing restrictions, the following restrictions should be imposed upon the reserved land: \\\"That the property marked 'Reservation' shall be restricted in the same manner as the property facing said 'Reservation.' \\\" The restrictions upon the land facing the \\\"Reservation\\\" was, by such agreement, made to read: \\\"All houses built on that part of the land hereby sold and designated \\u00a3C' shall, if built on roads, or streets bounding the part marked 'Reservation' face the property marked 'Reservation' and all such houses shall be single dwellings built on lots of not less than fifty feet front.\\\"\\nThe effect of this change in the restrictions was to do away with the requirements that the- houses built were to be of the same type of architecture as the \\\"University Homes,\\\" and the houses thereafter were to be single houses and built on lots of not less than fifty feet front. The agreement of the parties, which was ratified by said order of court, contained the further restriction, that no structure of any sort should be erected upon the property until the plans and specifications therefor were first submitted to and approved by a committee of three, one representing the trustee, one the Uorthwest Real Estate Company, \\\"and a third to be Edward L. Palmer, or such other architect as said two parties may from time to time agree upon.\\\" This committee was given unusually broad powers in determining what should and what should not be built upon the property.\\nThis order of the court, ratifying the agreement, changing the restriction and adding thereto' the provision as to the appointment of said committee, was passed two years after the property was sold, the sale ratified, and the deed therefor to- the purchaser executed and recorded, and after all dealings between the trustee and Morris in reference to the sale of the property had long since ended. The authority of the trustee under the decree was limited to the sale of the property, and when the sale to Morris was made, the trustee's authority as such in respect to that property was at an end, and any and all agreements thereafter made, either changing or adding to the restrictions then existing upon the unsold land, were not made upon the authority conferred upon him by the decree, and were not, we think, in any sense binding upon the appellees.\\nIt may be that the appellants have been for years silent recipients of the benefits accruing to them from such restrictions, but in our opinion this fact does not, as claimed by the appellees in their fourth objection, estop the appellants from assailing the validity of those restrictions. The appellants are only bound, we think, by those restrictions that are found in the deed to the purchaser and embraced in the contract of sale.\\nCase remanded for further proceedings in accordance ivith this opinion, without affmir ing or reversing the decree, each party to pay one-half of the costs in this court.\"}"
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+"{\"id\": \"2296005\", \"name\": \"WILLIAM BAKER alias Orlando Little v. STATE OF MARYLAND\", \"name_abbreviation\": \"Baker v. State\", \"decision_date\": \"1978-03-13\", \"docket_number\": \"No. 788\", \"first_page\": \"133\", \"last_page\": \"146\", \"citations\": \"39 Md. App. 133\", \"volume\": \"39\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:49:48.251427+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAM BAKER alias Orlando Little v. STATE OF MARYLAND\", \"head_matter\": \"WILLIAM BAKER alias Orlando Little v. STATE OF MARYLAND\\n[No. 788,\\nSeptember Term, 1977.]\\nDecided March 13, 1978.\\nThe cause was argued before Gilbert, C. J., and Thompson and Moore, JJ.\\nGeraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.\\nStephen Rosenbaum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State\\u2019s Attorney for Baltimore City, and Harvey Greenberg, Assistant State\\u2019s Attorney for Baltimore City, on the brief, for appellee.\", \"word_count\": \"4198\", \"char_count\": \"24501\", \"text\": \"Gilbert, C. J.,\\ndelivered the opinion of the Court.\\nRepresentative James Madison introduced at the first congress, on June 8, 1789, sixteen (16) amendments to the Constitution of the United States. Four (4) of the amendments did not survive congressional debate, and two (2) failed because the States did not ratify them. The remaining ten (10), in substantially the same form as proposed by Madison, became known as \\\"The Bill of Rights.\\\" Interestingly, one (1) of the suggested amendments that was defeated in the Congress would have prohibited \\\"the states from infringing on freedom of conscience, press, and jury trial.\\\" The Bill of Rights was, in the beginning, a protection against the federal government but not the States. Violations of the rights of the individual by the State were protected only to the extent provided in the State constitution or Declaration of Rights.\\nThe Fourth Amendment, part of Madison's original package, provides:\\n\\\"The right of the people to be secure in' their persons, houses, papers, and effects, against unreasonable searches and seizures, shall[ ] not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\\\"\\nThe Declaration of Rights adopted in Maryland afforded the people, through Article 26, protection against general warrants and required an oath or affirmation as a condition precedent to the issuance of a search and seizure warrant.\\nBoth the Fourth Amendment and Article 26, arose from the same historical background, Givner v. State, 210 Md. 484, 124 A. 2d 764 (1956); Salmon v. State, 2 Md. App. 513, 235 A. 2d 758 (1967), and are to be read as being in pari materia. Givner v. State, supra; England v. State, 21 Md. App. 412, 320 A. 2d 66 (1974), aff'd, 274 Md. 264, 334 A. 2d 98 (1975).\\nNotwithstanding, the Supreme Court's use of the Due Process Clause of the Fourteenth Amendment in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961), as the vehicle through which to apply the strictures of the Fourth Amendment to the States, and with it the \\\" 'fruit of the poisonous tree' \\\" doctrine, Wong Sun v. United States, 371 U. S. 471, 488, 83 S. Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963), Maryland did not initially follow that doctrine. Mefford v. State, 235 Md. 497, 201 A. 2d 824 (1964); Prescoe v. State, 231 Md. 486, 191 A. 2d 226 (1963). In those cases, the majority of the Court reasoned that the \\\"poisonous tree\\\" doctrine or exclusionary rule discussed in Wong Sun v. United States, supra, and Mapp v. Ohio, supra, did not apply to the States but was limited in its scope to federal proceedings.\\nAs a result of Mefford soA Prescoe, the courts of this State ignored the federal exclusionary rule until 1974. At that time, the Court of Appeals, in Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975), rev'g, 20 Md. App. 71, 315 A. 2d 80 (1974), made it unmistakable that Michigan v. Tucker, 417 U. S. 433, 445, 94 S. Ct. 2357, 2364, 41 L.Ed.2d 182, 193-94 (1974) and Alderman v. United States, 394 U. S. 165, 89 S. Ct. 961, 22 L.Ed.2d 176 (1969), erased the doubt that had existed, and the \\\" 'fruit of the poisonous tree' \\\" doctrine, Wong Sun v. United States, 371 U. S. at 488, 83 S. Ct. at 417, 9 L.Ed.2d at 455, became the law of Maryland.\\nThe primal thrust of this appeal is the application vel non of the exclusionary rule \\u2014 the \\\"fruit of the poisonous tree\\\" doctrine \\u2014 to the judicial identification of the appellant.\\nAfter a hearing on a motion to suppress, Judge Shirley B. Jones, in the Criminal Court of Baltimore, ruled that the arrest of the appellant, William Baker, alias Orlando Little, was not founded on probable cause. She, therefore, excluded from the case any identification of appellant, based upon a photograph made of him subsequent to that arrest. While helpful to appellant, the exclusion of the photographic identification was more of a panache than a victory because the judge found that there was ample evidence that the judicial identifications made by the witnesses were bottomed on evidence that was independent of the baneful photograph. Appellant, however, contends that his illegal arrest precludes any identification of him, so that he should in no way be connected with the offense and must be freed. The argument advanced by appellant may be styled as the \\\"but for\\\" approach. \\\"But for\\\" the illegal arrest he would not have been caught and, ergo, could not have been identified as the culprit.\\nBefore explaining why we reject that absonant argument with its iniquitous result, we set out the fabric from which the appeal has been tailored.\\nAt about 2:45 p.m., on July 23, 1975, Howard Katz an insurance agent, was robbed by two (2) men in the 200 block of East Chase Street in Baltimore City. One of the felons was armed with a sawed-off shotgun. When the police arrived, the victim and two witnesses, gave descriptions of the armed robber. Phillip Hawkes, a witness did not actually see the robbery, but he \\\"got a real good look\\\" at the person who carried the weapon as that person left the area at a \\\"dog's trot.\\\" Katz was within a few feet of the robber for one (1) to five (5) minutes and looked directly at the robber's face. Scott, a witness and a former Baltimore County police officer, who was with Katz at the time stared directly at the robber for a period of \\\"no less than one and no more than five\\\" minutes.\\nPursuant to a tip from an unidentified informant, the appellant was arrested on July 29, 1975, at the home of his girl friend. The arrest was made without the benefit of a warrant. In holding, as we have already noted, the arrest to be illegal, the trial judge believed there was a lack of probable cause because the information passed on to the arresting officer by the informant failed to pass muster under Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964). Moreover, the judge was not satisfied that there was knowing consent to the search of the girl friend's apartment, where appellant was found, nor that there were exigent circumstances which excused the obtaining of a search warrant.\\nPrior to the arrest and booking of the appellant, his name was not known to the police. The next day, appellant's photograph was shown to Katz and Scott, who identified it as that of the perpetrator of the robbery. Thereafter, Katz and Scott saw the appellant several times in various court proceedings. Hawkes saw the appellant in the City Jail where he was confined while awaiting trial. The two (2) victims and Hawkes testified, during the hearing on the motion to exclude any in-court identification, that their identifications would be based solely on their recollection of the incident and not on any subsequent viewing of appellant or his photograph. During the trial, Katz, Scott, and Hawkes made in-court identifications of the appellant.\\nPast Maryland cases have held that in-court identifications resulting directly from illegal arrests are not excluded from evidence. Those decisions, however, must be re-evaluated in light of both the subsequent adoption by the Court of Appeals in Everhart v. State, supra, of the \\\"fruit of the poisonous tree\\\" exclusionary rule and of the recent Supreme Court decisions related to that rule. Our reappraisal leads us to conclude that when an illegal arrest is made in good faith and is neither an investigatory nor sham arrest, judicial identification is not to be barred on the basis of its being the \\\"fruit of the poisonous tree.\\\"\\nTwo (2) 1968 decisions of this Court held that in-court identifications were not precluded by the illegal arrests of the individuals concerned. Boucher v. Warden, 5 Md. App. 51, 245 A. 2d 420 (1968); Hartley v. State, 4 Md. App. 450, 243 A. 2d 665 (1968), cert. denied, 251 Md. 749 (1969), cert. denied, 395 U. S. 979, 89 S. Ct. 2136, 23 L.Ed.2d 768 (1969). In Boucher, supra, we said that, notwithstanding the in-court identification, \\\"no fruits of the arrest were received in evidence against the applicant. .\\\" Boucher v. Warden, 5 Md. App. at 55, 245 A. 2d at 423.\\nThose cases obviously were decided prior to Maryland's belated recognition in Everhart, supra, of Wong Sun, supra, and its siblings.\\nWe applied Wong Sun, supra, through Everhart, supra, in Ryon v. State, 29 Md. App. 62, 349 A. 2d 393 (1975), aff'd, 278 Md. 302, 363 A. 2d 243 (1976). The exclusionary rule of Wong Sun, supra, was explicated in In re Appeal No. 245, 29 Md. App. 131, 349 A. 2d 434 (1975) as follows:\\n\\\"On 14 January 1963 the Supreme Court of the United States decided Wong Sun v. United States, 371 U. S. 471 [83 S. Ct. 407, 9 L.Ed.2d 441 (1963)]. Nearly half a century before, the Court held that evidence seized during a search unlawful under the Fourth Amendment could not constitute proof against the victim of the search. Weeks v. United States, 232 U. S. 383 [34 S. Ct. 341, 58 L. Ed. 652] (1914). The exclusionary prohibition extended as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U. S. 385 [40 S. Ct. 182, 64 L. Ed. 319] (1920). The exclusionary rule had traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It followed from the Court's holding in Silverman v. United States, 365 U. S. 505 [81 S. Ct. 679, 5 L.Ed.2d 734] (1961), that the Fourth Amendment may protect against the overhearing of verbal statements as well as the more traditional seizure of tangible evidence.\\\" 29 Md. at 140, 349 A. 2d at 439.\\nLong before the Fourth Amendment was held, in Mapp v. Ohio, supra, to apply to the States, Mr. Justice Holmes, in Silverthome, supra, wrote that the exclusionary rule mandates not only that evidence obtained in violation of the tenets of the Fourth Amendment may \\\"not be used before the Court but that it shall not be used at all.\\\" 251 U. S. at 392, 40 S. Ct. at 183, 64 L. Ed. at 321. \\\"The Magnificent Yankee,\\\" however, penned a caveat that declared, \\\"[o]f course this does not mean that the facts thus obtained become sacred and inaccessible.\\\" Id.\\nThe Wong Sun Court went further and stated:\\n\\\"We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire Evidence of Guilt, 221 (1959).\\\" 371 U. S. at 487-88, 83 S. Ct. at 417, 9 L.Ed.2d at 455.\\nThe three (3) generally recognized exceptions to the application of the fruit of the upas tree are: 1) where the evidence sought to be introduced has an independent source, or 2) the evidence would have inevitably been discovered, or 3) where \\\"the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.\\\" In re Appeal No. 245, 29 Md. App. at 140, 349 A. 2d at 440. See Bartram v. State, 33 Md. App. 115, 364 A. 2d 1119 (1976), aff'd, 280 Md. 616, 374 A. 2d 1144 (1977). See also Washburn v. State, 19 Md. App. 187, 310 A. 2d 176 (1973).\\nFor the purpose of determining whether the rule excluding evidentiary \\\"fruit of the poisonous tree\\\" should be applied to a particular situation, the Supreme Court has adopted a balancing test. The Court, in Stone v. Powell, 428 U. S. 465, 96 S. Ct. 3037, 49 L.Ed.2d 1067 (1976), said that \\\"[t]he primary justification for the exclusionary rule . is the deterrence of police conduct that violates Fourth Amendment rights.\\\" 428 U. S. at 486, 96 S. Ct. at 3048, 49 L.Ed.2d at 1083. The deterrent effect of the exclusionary rule must be weighed against the harm which society suffers when the particular evidence cannot be used in a judicial proceeding. Thus, \\\"[t]he application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.\\\" United States v. Calandra, 414 U. S. 338, 348, 94 S. Ct. 613, 620, 38 L.Ed.2d 561, 571 (1974). Areas to which the exclusionary rule clearly has not been extended include: grand jury proceedings, United States v. Calandra, supra; the use of the evidence to impeach, Walder v. United States, 347 U. S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954); and the raising of illegal search and seizure claims in federal habeas corpus reviews of state court convictions, Stone v. Powell, supra. The reason for the nonapplication of the rule is that the deterrent effect in those situations would be minimal.\\nThe exclusionary rule is a potent judicial weapon fashioned to restrain police trespass on constitutionally protected rights, which is selectively used and discriminately applied. It was not created as a \\\"bonus,\\\" for the criminal, taking the form of the keys to the jail, which might well happen if courts were to employ its severe sanctions indiscriminately. Stone, supra, makes clear that:\\n\\\"Application of the rule . deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.\\\" 428 U. S. at 490-91, 96 S. Ct. at 3050, 49 L.Ed.2d at 1085-86. (Footnotes omitted.)\\nChief Justice Burger, concurring in Stone, supra, said that the burden should be on those who propose the application of the exclusionary rule to show that there is a real deterrent effect and that the purpose outweighs the \\\"costs\\\" of the rule. Id. at 499-500, 96 S. Ct. at 3054, 49 L.Ed.2d at 1091.\\nThe Stone Court reaffirmed its traditional approach to the related problem of the illegal forcible obtention of personal jurisdiction. They did not \\\"retreat from the proposition that judicial proceedings need not abate when the defendant's person is unconstitutionally seized, Gerstein v. Pugh, 420 U. S. 103, 119, [95 S. Ct. 854, 865-66, 43 L.Ed.2d 54, 68] (1975), Frisbie v. Collins, 342 U. S. 519, [72 S. Ct. 509, 96 L. Ed. 541] (1952).\\\" Id. at 485, 96 S. Ct. at 3047, 49 L.Ed.2d at 1082.\\nApplying the Wong Sun, supra, doctrine to the case now before us, we hold that the in-court identification of the appellant was correctly admitted into evidence by Judge Jones. Perspicuously, Wong Sun, supra, does not apply a \\\"but for\\\" test to evidence. Rather, the question is whether the evidence has been obtained by exploiting the illegality. Exploitation must have a different meaning than \\\"but for.\\\" Learning the identity of a person otherwise lost in a sea of faces, as a result of an illegal arrest not solely for that purpose, is not \\\"exploitative,\\\" but, rather, is the natural result of any arrest. As stated in United States v. Dionisio, 410 U. S. 1, 14, 93 S. Ct. 764, 771, 35 L.Ed.2d 67, 79 (1973),\\n\\\"No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.\\\"\\nSee also, Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967).\\nClassification of learning the appellant's identity and, hence, the judicial identification, as \\\"exploitative\\\" would be inconsistent with the Supreme Court's reaffirmation of the principle that illegal gaining of personal jurisdiction of a defendant does not prohibit the State from placing that individual on trial. Stone v. Powell, supra.\\nOther courts have applied the same reasoning. In Commonwealth v. Garvin, 448 Pa. 258, 293 A. 2d 33 (1972), which involved a fact situation like the one before us, the court said: Similarly, in Crews v. United States, 369 A. 2d 1063, 1068 (D.C. Ct. of App. 1977), involving another situation like that before this Court, it was said, quoting in part from Bond v. United States, 310 A. 2d 221 (D.C. Ct. of App. 1973):\\n\\\"No law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusors. Thus, we conclude that the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome.\\\" Id. at 264, 293 A. 2d at 37.\\n\\\"[ ' ]Even assuming the illegality of the prior arrest, we regard [appellant's] position as untenable. In the first place, he points to no particular \\\"fruit\\\" of this alleged \\\"poisonous tree\\\" which was introduced into evidence against him. This doctrine does not operate so broadly as to bar all subsequent prosecutions. Rather it operates on particular evidence, either tangible or testimonial, and, if properly invoked, causes the exclusion only of such evidence. See Wong Sun v. United States [supra]. Here, it would seem that appellant would have us hold that he himself is the \\\"fruit\\\" and accordingly he should have been excluded but \\\"[w]e have ruled on more than one occasion that a court will not inquire into the manner in which an accused is brought before it, and that the legality or illegality of an arrest is material only on the question of suppressing evidence obtained by the arrest.\\\" [Quoting District of Columbia v. Jordan, D.C.App., 232 A.2d 298, 299 (1967).] ' [Bond v. United States, 310, A.2d at 224-25.] See District of Columbia v. Perry, D.C.App., 215 A.2d 845, 847 (1966); Boucher v. Warden, 5 Md.App. 51, 245 A.2d 420, 423-24 (1968). Cf. M. A. P. v. Ryan, D.C.App., 285 A.2d 310, 315 (1971). Our conclusion rested upon the well-established principle that, given a fair trial, the fact of an illegal arrest will not vitiate a conviction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). While it is true, as appellant notes, that the Ker-Frisbie doctrine has been the subject of some criticism [see, e.g., United States v. Toscanino, 500 F.2d 267, rehearing en banc denied, 504 F.2d 1380 (2d Cir. 1974); United States v. Edmons, 432 F.2d 577, 583 (2d Cir. 1970)], we have no doubt as to its continued validity. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 3047, 49 L.Ed.2d 1067 (1976); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Stevenson v. Mathews, 529 F.2d 61, 63 (7th Cir.), cert. denied, 426 U.S. 954, 96 S.Ct. 3181, 49 L.Ed.2d 1193 (1976).\\\"\\nEven if we were to assume, arguendo, that the in-court identification was in some way fruit picked from the upas tree, that identification testimony would not be excluded. This is so because the deterrent effect of the exclusion of the identification on police conduct would be grossly outweighed by the public detriment. Stone v. Powell, supra.\\nThe Supreme Court said, in Michigan v. Tucker, 417 U. S. at 446, 94 S. Ct. at 2365, 41 L. Ed. at 194 (1974), the law,\\n\\\"cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether sanction serves a valid and useful purpose.\\\"\\nThe exclusion of evidence in a situation where the police have attempted, in good faith, to follow the law may have little deterrent effect on future police conduct except, perhaps the reverse of that desired. Michigan v. Tucker, 417 U. S. at 447, 94 S. Ct. at 2365, 41 L. Ed. at 194-95. Crews v. United States, supra. There is no evidence in the record before us of any lack of good faith on the part of the officers involved in the apprehension of the appellant. The detriment to the public of excluding all in-court identification of the appellant would be a blanket prohibition of prosecution for the crime. Where, as here, the identity of an individual is characterized as the \\\"illegal fruit,\\\" \\\"in the final analysis,\\\" what is sought \\\"is no less than an immunity from any prosecution.\\\" Crews v. United States, 369 A. 2d at 1072. If this Court were to adopt the rationale urged by appellant, the societal harm would be far greater than in the ordinary exclusionary rule situation where the prosecution must use other untainted evidence. Usually in such cases there is the possibility of prosecution based on other sources of evidence.\\nWe hold that the trial judge properly admitted into evidence the in-court identification made of appellant by the victim and the two (2) witnesses. It is clear that the identifications were based upon their independent observations of the appellant at the time of the robbery and not upon the tainted photograph. Foster & Foster v. State, 272 Md. 273, 323 A. 2d 419 (1974); Johnson v. State, 36 Md. App. 162, 373 A. 2d 300 (1977), certiorari granted September 7, 1977; Dobson v. State, 24 Md. App. 644, 335 A. 2d 124 (1975), cert. denied, 275 Md. 747 (1975).\\nAppellant next contends that the trial court improperly denied his motion for a mistrial. The motion was based on allegedly prejudicial remarks by the prosecutor during cross-examination of the appellant. Judge Jones sustained the objections and instructed the jury to disregard the questions. Her instructions to the jury appear sufficiently curative. Judge Jones reinforced her instruction to ignore the prosecutor's remarks when she stated that\\n\\\"when something is stricken from the record it means literally that, that it is stricken from the record and you must completely ignore anything which has been stricken from the record----[Y]ou [the jury] are to ignore that portion of the testimony or the question, whatever it might have been.\\\"\\nAppellant avers, however, that the cumulative effect of the prosecutor's remarks, despite Judge Jones's curative actions, was sufficiently prejudicial to deny him a fair trial. Judge Jones was, in presiding over the trial, better able than this Court to judge the effect of the improper remarks upon the jurors. She stated,\\n\\\"I am not satisfied at this point that there has been irreparable damage to the defendant. I'm satisfied the questions were improper, and that's why I sustained the objections, but I'm going to instruct the jury. I think, as I say, it is not irreparable and prejudicial that I can see at this point.\\\"\\nInasmuch as the granting or denial of a motion for a mistrial is within the sound discretion of the trial court, this Court will not overturn the trial judge's decision unless there was a manifest abuse of discretion. Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974); James v. State, 31 Md. App. 666, 358 A. 2d 595 (1976). We can find no such abuse of di\\u00e1cretion in the instant case.\\nJudgment affirmed.\\nCosts to be paid by appellant.\\n. Bernard Schwartz, The American Heritage History of The Law in America, ch. II (1974).\\n. Id.\\n. Id\\n. According to Schwartz, Madison \\\"wrote a mandatory imperative into the amendments, substituting the word 'shall' for the 'oughts' and 'ought nots' that had characterized earlier documents guaranteeing similar rights.\\\" See, e.g., Maryland Declaration of Rights Articles 6-12, 14-19, 21-23, 25, 26, 30,32,36,37,39-43, wherein the softer \\\"ought\\\" or \\\"ought not\\\" has been used.\\n. This is so even though Article 26 is not couched in the mandatory imperative as is the Fourth Amendment. See n. 4, supra.\\n. It was disclosed at the hearing on the motion to suppress and the trial that appellant was wanted for a parole violation, failing to report.\\n. According to Hawkes, the charges against him unrelated to this case were stetted.\\n. Emmet Lowery (written 1945).\"}"
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+"{\"id\": \"2303795\", \"name\": \"ALFRED DONNELL HUGHES v. STATE OF MARYLAND\", \"name_abbreviation\": \"Hughes v. State\", \"decision_date\": \"1979-10-18\", \"docket_number\": \"No. 133\", \"first_page\": \"698\", \"last_page\": \"712\", \"citations\": \"43 Md. App. 698\", \"volume\": \"43\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:12:10.421639+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Lowe, Mason and Couch, JJ.\", \"parties\": \"ALFRED DONNELL HUGHES v. STATE OF MARYLAND\", \"head_matter\": \"ALFRED DONNELL HUGHES v. STATE OF MARYLAND\\n[No. 133,\\nSeptember Term, 1979.]\\nDecided October 18, 1979.\\nThe cause was argued before Lowe, Mason and Couch, JJ.\\nNancy Louise Cook, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.\\nRay E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State\\u2019s Attorney for Baltimore City, and Peter Semel, Assistant State\\u2019s Attorney for Baltimore City, on the brief, for appellee.\", \"word_count\": \"4254\", \"char_count\": \"25774\", \"text\": \"Lowe, J.,\\ndelivered the opinion of the Court.\\nThe primary question raised by appellant is whether the denial of an oral motion for a trial date change offered on day of trial denied appellant his right to counsel of his own choosing. The question is couched designedly to emphasize what is urged as a denial of a constitutional right, and as well, to permit peripheral arguments to be interwoven as support for his position. One such peripheral contention which might well have given pause independently is that he was improperly denied the right to be present when his attorney addressed the motion for continuance to the administrative judge.\\nThe record indicates that appellant, whose charges included kidnapping and assault with intent to murder, was provided a public defender (Earl Carey) whose appearance was entered on May 22,1978, according to the docket of the Criminal Court of Baltimore. Perhaps because Carey also represented a codefendant, the docket entries show that a panel attorney, Michael S. Libowitz, assigned by the Public Defender, entered his appearance on appellant's behalf on July 7, 1978. On September 13, 1978, the cases of appellant and his codefendant were called for trial.\\nWhile the court was disposing of preliminary motions (which included a demand for speedy trial) prior to commencing the case, the codefendant personally and vociferously expressed dissatisfaction with his attorney and asked to defer trial in order to obtain new counsel. Appellant's attorney then arose and advised the court that on that very morning he had been advised that appellant's family had contacted private counsel, Mr. Howard Cardin, who had (also that morning) contacted Mr. Libowitz. Mr. Libowitz verified this retention through appellant's mother and appellant, who indicated a preference \\\"to be represented by Mr. Cardin who is the choice of his family.\\\" Mr. Libowitz then joined the codefendant's request for postponement, to permit Mr. Cardin to be formally retained and to prepare his case.\\nBecause Md. Rule 746 b restricts that decision to administrative judges (or their designees) only, the trial judge proposed to recess the proceedings and permit counsel to journey through the Baltimore City courthouse to Administrative Judge Robert L. Karwacki's chambers where they could obtain a postponement only if they should convince him that the cause for delay was \\\"extraordinary\\\". Md. Rule 746 b states:\\n\\\"Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.\\\"\\nBefore leaving, appellant's appointed counsel proposed that appellant be permitted to join him. He did not suggest that appellant could contribute to the deliberation of Judge Karwacki. Instead he rested his demand on the premise that the right to be present at that stage of the trial was an absolute, presumably because the underlying purpose for which the change of trial date was being sought made it a \\\"critical\\\" stage.\\n\\\"MR. LIBOWITZ: Your Honor, on the record, since \\u2014 before my client is taken away, I think, as far as my client is concerned, postponement request is certainly a critical stage in the proceedings against him. It has been indicated, the family has indicated that at this time they are financially able to secure private counsel of their own choice and desirous of same. I would ask that my client be in a position to be present during any postponement request before the administrative judge.\\\"\\nThe trial judge declined to decide the presence question and left it to the administrative judge who would decide the ultimate postponement question. The record indicates some concern by the trial judge as to whether the defendant, charged with brutally violent crimes, could safely be transported from area to area in a crowded courthouse. He initially deferred to the security officers, but finally left the decision to the administrative judge.\\n\\\"THE COURT: I'm going to leave that up to the jail guard.\\nMR. CAREY: I would make the same motion for similar reasons on behalf of my client.\\nTHE COURT: I'm going to leave that up to the jail authorities and you may make that request to Judge Karwacki when you appear before him; see what he says.\\\"\\nWe are thereafter deprived of any record of proceedings of what transpired before the administrative judge, although his conclusions were reported to the trial judge by the Assistant State's Attorney.\\n\\\"MR. SEMEL: Your Honor, Judge Karwacki denied the postponement. Mr. Libowitz and Mr. Carey and myself met with him about fifteen, twenty minutes ago. The situation was made known to him. He denied both postponements requests by both Defendants and ordered that the case proceed to trial today. He also denied a motion made by Mr. Carey, Mr. Libowitz to have the Defendants present at the hearing of the request and on the postponement issue.\\\"\\nWe can assume the State protested vigorously to Judge Karwacki, opposing this last minute delay just as it had before the trial judge when the issue was first raised,\\n\\\"MR. SEMEL: Your Honor, it's obvious to the State that both Defendants are employing what I would call dilatory tactics in these particular cases. Both Mr. Carey and Mr. Libowitz have been in these cases for at least three, four, five months to my knowledge. They have been in communication with me, provided discovery matters, they have been to my office, they're both fully prepared for trial, everything has been given to them that they asked.\\nThe Defendants come in here today and they're trying to get a delay for whatever reasons they have in their own particular cases. The State has gone to great expense to get this case ready for trial today. There is an out of state witness flying in from Texas who will be here today. There is [sic] numerous detectives involved in this case, uniformed patrolmen who are all working various shifts, crime lab technicians, at least twenty-twenty-five witnesses, Your Honor. The State would object strenuously to any ridiculous tactic by Defense at this time. Both Mr. Libowitz and Mr. Carey are capable, experienced criminal attorneys and State is prepared to go to trial today and it wants to go to trial today.\\\"\\nbut we are faced with a practical dilemma in the absence of a record of what transpired in Judge Karwacki's chambers. We do not know whether Judge Karwacki declined to have the defendant present for security reasons, or whether his decision was arbitrary. We do not know what considerations were left before his honor in determining whether extraordinary cause existed under the \\\"facts and circumstances of [this] case.\\\"\\n\\\"Determining what constitutes 'extraordinary cause' under Rule 746 is, of course, dependent upon the facts and circumstances of each case.\\\" State v. Hicks, 285 Md. 310, 319 (1979).\\n\\u2014 extraordinary cause \\u2014\\nIn the abstract one could hardly argue that a propitious exercise of one's right to counsel may have been cause for delay sufficiently extraordinary to warrant a change in trial date, and sufficiently critical to require the accused's presence when that determination was made. That an attorney being discharged would be adequate counsel to advocate his own dismissal out of client's presence and to ask for a postponement to allow his successor to prepare, is reasonably incongruous. But there are other considerations inferably available against which the abstract right-to-counsel argument may fall. One such consideration involves appellant's demand for speedy trial that was still pending, as pointed out by the trial judge. This was itself a constitutional right standing in the way of further delay:\\n\\\"I might say to both of these young men, there has been a Motion for Speedy Trial on behalf of both of them. If their cases are postponed, you might have critically affected your rights to a speedy trial, both of you, and you might have some difficulty asserting that you were denied a speedy trial if the case is postponed at your request.\\\"\\nAnother consideration inferably available is appellant's timing in his request to change to another lawyer. Appellant had been provided counsel by the State, as noted, obviously pursuant to Md. Rule 723 b 5. This had to be done at his request and, indeed to qualify, his impecunious status had to be attested by him before a public defender was appointed. At this stage he had asserted his right to counsel and had elected to accept one designated, and paid for, by the State. In such instance a defendant is not entitled to appointment of counsel of his own choice, but only to such counsel as may be assigned. But such appointment, once made at the behest of appellant, fulfilled the constitutional guarantee so long as the counsel assigned afforded appellant a genuine and effective legal representation under all the circumstances of the case. English v. State, 8 Md. App. 330, 334-335 (1969).\\nAt no time did appellant express any dissatisfaction directly or through counsel. He was personally silent throughout, depending on his assigned counsel who was the conveyor of appellant's preference to defer to his family's last hour obtainment of private counsel. When a defendant requests and receives appointed counsel and acquiesces in his representation up to the very point of jeopardy attaching, and even then does not object to such representation, his conduct approaches a waiver of the exercise of a preference for another lawyer subsequently selected and paid for by his family. Cf. Baker v. State, 35 Md. App. 641, 642-643 (1977).\\nHad appellant hired counsel at the inception and continued with him to the trial date, his circumstance would have been the same had he then come in to request postponement to change to another lawyer recommended by his family. This issue then is not whether appellant was denied a right to counsel, or even to counsel of his choice. Rather the question remains procedural \\u2014 whether the circumstances are so extraordinary that the trial should be rescheduled to convenience appellant's belated hindsight. A justifiable substitution of counsel may be accommodated. An initial exercise of one's right to counsel must be; but here, appellant had already exercised his initial right to counsel; even of his choice, when he chose to accept the public defender. To permit a change was, at best, within the statutorily limited discretion of the court.\\nIt is obvious that the merits in the exercise of the discretionary right to deny a continuance to change lawyers are inexorably interwoven with the merits of an accused's right to be present when the decision is made. Just as the timing of the request may inferentially cause suspicion of the real purpose {i.e., that appellant is using it as an \\\"artifice or stratagem\\\" to delay trial, see Brown v. State, 27 Md. App. 233, 238 (1975)), such timing may for security, or other reasons, foreclose appellant's right to be present in the absence of a proffer that his presence could contribute to the merits of the motion. Under the limited circumstances available to us in this case, appellant's requested postponement was a procedural issue involving convenience to appellant. He has not shown that he was threatened with a loss of the right to representation, nor has he shown justification for belatedly changing his selection from a public defender to private counsel at the expense of interrupting the judicial process. But all of this is speculation upon what Judge Karwacki may have considered. Appellate courts should not so speculate.\\n\\u2014 burden on appeal \\u2014\\nIn an unofficial memorandum to prosecutors on \\\"THE EFFECT OF STATE V. HICKS ON THE SCHEDULING AND POSTPONING OF TRIAL, PURSUANT TO MARYLAND RULE 746\\\", the Attorney General, through his assistant, F. Ford Loker, Esquire, admonished prosecutors to see that, upon requesting delays, a proper record be made for use on appeal. His advice on what constitutes an adequate record is as applicable to defense counsel as to the prosecutors to whom it is addressed:\\n\\\"Establishing an adequate record means producing competent evidence, such as live witnesses and court records, as opposed to mere unstipulated proffers or argument. Attorneys cannot afford to articulate arguments for or against a continuance in the judge's chambers, and forget to repeat their performance on the record.\\\"\\nAs we have indicated there is no record here of what transpired before the administrative judge but for the statement of the Assistant State's Attorney indicating that neither postponement nor right to be present was granted. There is not even a docket entry to show either the request for continuance or to be present, or the disposition of either. As Mr. Loker also points out, this Court has expressly declined in another context to consider the merits of a factual assertion upon\\n\\\"unsworn testimony of the Assistant State's Attorney, in argument on [a] motion.\\\" See Davis v. State, 24 Md. App. 567, 572 (1975).\\nWhat's sauce for the goose is sauce also for the gander. If the State must make a record on motions' hearings, does not the same apply to an accused when the appellate burden is his? Here, we do not have even appellant's counsel's \\\"unsworn statement\\\" of facts existent as was in Davis, supra. There is nothing to review, not a record of a motion, not a ruling by the administrative judge, not even a docket entry. Appellate courts have always required some record of proceedings of an administrative nature before they will reverse an exercise of judicial discretion, and of late more and more clarity and detail is prescribed. The full burden of providing such record is placed upon \\\"the aggrieved party, the party claiming abuse, to preserve his objection for review.\\\" Langrall, Muir & Nopp'r v. Gladding, 282 Md. 397, 401 (1978).\\n\\\"The Court of Special Appeals noted with particularity that the trial judge made no stenographic record nor did he outline his reasons for his action. Without question, the better practice for any trial judge when exercising his discretion under Rule 530 is to set forth the basis for his ruling on the record, with unmistakable clarity, orally or by memorandum opinion. However, it is the responsibility of the aggrieved party, the party claiming abuse, to preserve his objection for review.\\nTo reach any other conclusion would reduce the exercise of a court's discretion to a meaningless gesture. This we cannot allow to happen. Discretion is the warp and woof of judicial fiber.\\\"\\nSince what constitutes extraordinary cause is a question within the limited discretion of an administrative judge to be decided on a case by case basis, Hicks, supra, and see Bethea v. State, 26 Md. App. 398, 401 (1975), it is appellant's burden to provide us with a satisfactorily endowed record indicative of an abuse of that discretion, Langrall, Muir & Nopp'r v. Gladding, supra, and he has failed to do so. There is nothing to review. See Lang v. Catterton, 267 Md. 268, 274 (1972) and Casson v. Joyce, 28 Md. App. 634, 638 (1975).\\nThis result is predicated upon the premise that the discretionary rulings of judges carry a \\\"presumption of validity\\\". Mathias v. State, 284 Md. 22, 28 (1978) (as does Langrall, Muir & Nopp'r v. Gladding, supra), cites a civil case which describes that principle.\\n\\\"There is, of course, a presumption that the discretion vested in the trial court 'was not abused but was exercised with just regard to the rights and interest of both the plaintiff and the defendants,'____\\\" I. W. Berman Prop. v. Porter Bros., 276 Md. 1, 19 (1975).\\n\\u2014 the right to be present \\u2014\\nBecause appellant did not carry his appellate burden of providing evidence of record of greater persuasion than the presumption of judicial propriety, we will affirm. For the same reason, we will not reverse simply because appellant may not have been present in Judge Karwacki's chambers. Except for the \\\"unsworn statement of the Assistant State's Attorney\\\", upon which a foundation for appeal will not rest, see Davis v. State, supra, his presence or absence is not ascertained aforesaid, but even if the record had so indicated, there was no right for appellant to be present at a conference on a preliminary procedural question of rescheduling. In light of our holding that appellant had been provided his right to counsel by the State, the issue of whether the rescheduling conference with the administrative judge was a critical stage of appellant's trial can be viewed in its procedural garb, stripped of its constitutional regalia.\\nWhether a defendant has extraordinary cause to delay a case may require some factual basis but it is primarily a conference on a question of law. If factual determinations required an evidentiary basis to reach a legal conclusion, appellant should have proffered this for the record and requested an evidentiary hearing in open court. Absent such proffer, the conference with the administrative judge relating to a change of trial date falls within the \\\"question of law\\\" exception to the rule.\\nThis is in accord with our holding in Redman v. State, 26 Md. App. 241, 243 (1975), which indicated that a defendant's presence is not required\\n\\\"at a pretrial chambers conference between the judge and counsel concerning scheduling and other procedural matters,____\\\"\\nJudge Moylan pointed out in Redman that the theme running through the cases holding that presence is required is that\\n\\\"the trial is actually in progress and is moving forward through one of its necessary stages or that testimony which will ultimately become a part of the trial (as in Collins [v. State, 12 Md. App. 239 (1971), aff'd 265 Md. 70 (1972)] is being perpetuated.\\\" Id. at 244.\\nThat was written in the spirit of the language of old Md. Rule 775, from which its more succinct successor emanated in the form of the present Rule 724.\\n\\\"Rule 775. Presence of Accused.\\nThe accused shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided in this Rule. The accused shall have the right to be present at the taking of a deposition taken at the instance of the prosecution. In a prosecution for an offense not punishable by death the defendant's voluntary absence after the trial has commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. The defendant's presence is not required at a reduction of sentence under Rule 764 (Revisory Power of Court), fixing of the date of execution in a capital case, or at a proceeding in an appellate court.\\\"\\nAs parenthetically pointed out by Judge Eldridge in n. 1 of Bunch v. State, 281 Md. 680, 684 (1978), the requirements of the two rules for our purposes are identical. We can thus glean some meaning for the succinct successor from the verbosity of its progenitor.\\nMore pertinently, however, the Court of Appeals had previously pointed out in Veney v. Warden, 259 Md. 437, 453-454 (1970), that such pretrial conferences on matters of a preliminary nature did not compel a defendant's presence:\\n\\\"Petitioner's eleventh point, raised solely at the hearing on this petition, is that he was denied his right to be present at a pre-trial meeting at which the court and counsel reached agreement regarding certain procedures to be followed at trial. This allegation affords no basis for relief because no law, federal or state, provides that the right to be present at trial extends to conferences between the judge and counsel in chambers. Martin v. State, 228 Md. 311, 179 A.2d 865 (1962) (arguments of law); see Brown v. Pepersack, 217 F. Supp. 547 (D. Md. 1963), aff'd., 334 F.2d 9 (4th Cir.), cert. denied, 379 U. S. 917 (1964); Brown v. State, 225 Md. 349, 170 A.2d 300 (1961), cert. denied, 372 U. S. 960 (both dealing with consideration of jury instructions). Nor does such right apply to matters which are purely preliminary in nature. People v. Isby, 30 Cal. 2d 879, 186 P.2d 405, 414 (1947). In the instant case, petitioner does not claim prejudice from any matter considered in the pre-trial meeting except the agreement to allow the jury to separate during trial. As already noted above, this matter is discretionary with the Court and under the facts in this case did not go the fairness of the petitioner's trial. Consequently, petitioner's absence from the session at which the agreement regarding separation was reached is not of constitutional dimensions. See Snyder v. Massachusetts, 291 U. S. 97 (1934).\\\"\\nBut all of this was pre-State v. Hicks, supra, 285 Md. 318. The holding in that case raised Md. Rule 746 to a height approaching constitutional proportions albeit acknowledging it to be a \\\"nonconstitutional procedural rule.\\\"\\n\\\"We deemed it essential, as is evident from the language of Rule 746, to place mandatory controls over the scheduling of criminal cases for trial, and over their postponement, to assure that criminal charges would be promptly heard and resolved. Rule 746 retains the 'extraordinary cause' standard of \\u00a7 591 and former Rule 740 as the sole basis justifying a trial continuance, but it alters the triggering mechanism, and substantially reduces the time period, by and within which trials are to be scheduled. Additionally, the rule vests power in the county administrative judge to authorize other judges to grant continuances. The provisions of Rule 746 are of mandatory application, binding upon the prosecution and defense alike; they are not mere guides or bench marks to be observed, if convenient.\\\" Id. at 318.\\n\\u2014 dicta\\nConsequently, it would seem that an extraordinary cause hearing may be considered of such importance \\u2014 especially with regard to the underlying purpose \\u2014 that it would at the very least be sufficiently critical to require appellant's presence under Md. Rule 724 a.\\n\\\"The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by these Rules.\\\"\\nWe are apprised that the Supreme Bench of Baltimore City has adopted the post-Hicks administrative policy of requiring all defendants to be present at all requests for scheduling change under Md. Rule 746. While this cumbersome procedure, which obviously causes security and other problems, is questionable, that court has taken Hicks as a warning flag, and chosen not to jeopardize future proceedings with technical oversights. Trial judges elsewhere, as surrounded as they all are with procedural pitfalls, are at liberty to follow that course, especially in postponement requests undergirded by assertions of constitutional rights, and err, if at all, on the side of caution. In light of the manipulative uses of rescheduling for tactical advantage, the consequence of misjudgment is numerically too grievous a burden to thrust upon judicial machinery by gambling that presence might not be required despite the implicit admonition gleaned from Hicks. Hicks is a warning indicative of the esteem in which the Court of Appeals regards its rules and the Legislature's enactments. Because of our Young v. State, 15 Md. App. 707, aff'd, 266 Md. 438 (1972), Hicks was a surprise. Once burned is to be twice wary.\\n\\u2014 the trial \\u2014\\nTwo additional questions submitted without argument are without merit. The first seeks to suppress a confession and other evidence by tainting it with the fruit of an illegal arrest, i.e., one without probable cause. The foundation fails in that the record indicates probable cause to have existed sufficient to justify the arrest.\\nFinally, appellant's complaint of the admission of a photograph of an automobile purporting to have been shot is equally without merit as a result of an unjustified foundation. He contends that the photograph depicts a bullet hole which the witness admitted having probed and enlarged and, as a consequence, did not reflect accurately the purpose for which it was admitted, i.e., to prove \\\"the damage\\\" caused by the firing of a gun. It was not the purpose to reflect the extent of damage, only that there was damage to the depicted area of the vehicle. The trial judge explained to counsel that it was not admitted to show the before probe condition. In fact, he agreed to keep the written legend on the photograph from the jury to avoid confusion, and permitted counsel to establish on cross-examination whatever he chose in regard to the picture. The judge did not abuse his discretion. Sisk v. State, 232 Md. 155, 157-158 (1963).\\nJudgments affirmed.\\nCosts to be paid by appellant.\\n. For example, in Guarnera v. State, 20 Md. App. 562 (1974), a defendant's last minute request to change attorneys was not \\\"extraordinary\\\"; whereas, in Copeland and Covington v. State, 27 Md. App. 397 (1975), a different factual basis, where new counsel was promised, warranted a delay to obtain such new counsel and thus was cause extraordinaire.\\n. We assume that we are not compelled to feign lack of knowledge upon that which is administratively done within the judiciary. Such reasonable recognitions have been reported without comment by the Court of Appeals. Barry Properties v. Pick Bros., 277 Md. 15, n. 3 (1976).\"}"
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+"{\"id\": \"2305602\", \"name\": \"WILLIAM STERLING COLE, JR. v. NANCY B. COLE\", \"name_abbreviation\": \"Cole v. Cole\", \"decision_date\": \"1979-12-20\", \"docket_number\": \"Nos. 159 and 519\", \"first_page\": \"435\", \"last_page\": \"450\", \"citations\": \"44 Md. App. 435\", \"volume\": \"44\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:49:53.081898+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAM STERLING COLE, JR. v. NANCY B. COLE\", \"head_matter\": \"WILLIAM STERLING COLE, JR. v. NANCY B. COLE\\n[Nos. 159 and 519,\\nSeptember Term, 1979.]\\nDecided December 20, 1979.\\nThe cause was argued before Moore, Melvin and Mason, JJ.\\nTheodore G. Bloom, with whom were Goodman, Bloom & Cohen, P.A. on the brief, for appellant.\\nRonald A. Baradel, with whom were Hartman & Crain on the brief, for appellee.\", \"word_count\": \"5141\", \"char_count\": \"30641\", \"text\": \"Melvin, J.,\\ndelivered the opinion of the Court.\\nIn this appeal, the appellant William Sterling Cole, Jr., challenges an order of the Circuit Court for Anne Arundel County that increased the amount of alimony and child support he was required to pay under a prior divorce decree. The order was filed October 28,1978, and, in addition to the ordered increases in alimony and child support, dismissed appellant's cross-petition for termination of alimony. After the appellant had filed his appeal from the October 28th order (Appeal No. 159), the appellee, Nancy B. Cole, petitioned the trial court to hold the appellant in contempt of court for failing to pay the increased award. The court did so and by order dated March 30,1979, directed the entry of \\\"a monetary decree in favor of Nancy B. Cole against William Sterling Cole, Jr. for $10,125 (the arrearage to 23 March 1979) and costs.\\\" The appellant then filed a timely appeal from that order (Appeal No. 519). The two appeals were consolidated and arguments thereon were heard on the same day.\\nAPPEAL NO. 159\\nI\\nThe parties were married on June 16, 1954, and had four children. On November 18, 1969, they separated due to \\\"irreconcilable marital difficulties\\\" and on November 24, 1971 entered into a property settlement agreement because they were, in the words of the Agreement, \\\"sincerely and genuinely interested in reaching accord concerning alimony for WIFE, support for the aforesaid children of the parties and the equitable disposition of their jointly and severally owned properties.\\\" The Agreement provided, among other things, for monthly payments to the appellee of $275.00 in alimony and $600.00 for the support of the four children, \\\"being One Hundred Fifty Dollars ($150.00) per month per child.\\\" The Agreement provided that the appellee agreed \\\"to accept the alimony, child support sums and property settlement . of this Agreement as adequate under the present financial circumstances of the parties.\\\" The Agreement also provided, however, that \\\"the entire matter of alimony and child support shall be subject to the further Order of any Court of competent jurisdiction.\\\"\\nTwo months after the date of the Agreement, the appellee, on January 11, 1972, filed her bill of complaint for divorce in the Circuit Court for Anne Arundel County on the ground of voluntary separation. The appellant, who was at that time a Commander in the U.S. Navy and a non-resident of Maryland, did not contest the proceedings. In her testimony before the Master on May 17, 1972, the appellee stated that she wished to have the Agreement \\\"to the extent that the Court sees fit incorporated in these proceedings\\\" and that \\\"on a minimum basis\\\" \\\"the sums of money provided [in the Agreement] for alimony and child support\\\" were \\\"adequate under the present circumstances.\\\"\\nThe divorce was granted by decree dated July 19,1972. It awarded custody of the four children (William, age 15; John, age 11; Charles, age 7; and Katherine, age 5) to the appellee and, in accordance with the Agreement, provided for alimony of $275.00 per month and child support of $600.00 per month.\\nOn February 23,1977, the appellee petitioned the court for an increase in alimony and child support on the grounds that \\\"since the passage of the [Divorce] Decree . [she] has been unable to provide support and maintenance for the minor children of the parties and support and maintenance as alimony because of the great increase of prices and costs\\\" and that she and three of the minor children \\\"are in need and suffer from want of support and care.\\\" On April 19,1977, the appellant filed an answer to the modification petition and a cross-petition in which he denied that an increase was needed and further averred that since the divorce the appellee's income had increased to the point that it was \\\"sufficient to provide adequately for her own needs\\\" and \\\"to enable her to contribute to the support of the three minor children in her custody.\\\" The cross-petition further alleged that appellant \\\"has now remarried and acquired additional obligations which have reduced his financial ability to contribute to the support of the children.\\\" In his cross-petition, the. appellant offered to accept custody of the children if the appellee, \\\"by reason of her extravagance cannot manage on\\\" the amount of child support she was receiving from appellant \\u2014 which amount he alleged was \\\"more than adequate to provide for their needs.\\\" The cross-petition prayed that appellant's \\\"obligation for alimony be terminated.\\\"\\nTestimony of the parties was taken in open court on September 18, 1978. On October 28, 1978, the court filed its order awarding the appellee an increase of monthly alimony from $275.00 to $400.00 and an increase in monthly child support from $150.00 per child to $250.00 \\\"for the three children now living with her.\\\" Both increases were to account from February 28,1977, the date on which appellee filed her petition for modification. As we have stated, the order also dismissed the appellant's cross-petition.\\nBoth parties seem to agree that substantial changes in their respective circumstances have occurred since the date of their divorce on July 19, 1972. The appellant contends on appeal, as he did below, that the changed circumstances evidenced in the record do not support the chancellor's order of October 28,1978, either with respect to sujinerease in alimony or with respect to the amount of increased child support. Further, with respect to alimony only, the appellant contends that the chancellor erred in not either terminating, abating, or, at least, suspending it.\\nIt is, of course, well settled in this State that a court of equity may upon a proper petition to do so modify a decree for alimony or child support at any time if there has been shown a material change in circumstances that justify the action. Jackson v. Jackson, 272 Md. 107, 111, 321 A.2d 162 (1974); Stansbury v. Stansbury, 223 Md. 475, 477, 164 A.2d 877 (1960); Winkel v. Winkel, 178 Md. 489, 498-499, 15 A.2d 914 (1940); Slacum v. Slacum, 158 Md. 107, 111, 148 A. 226 (1930); Lott v. Lott, 17 Md. App. 440, 302 A.2d 666 (1973). It is equally well settled that, as with an original award, the decision on the question of modification of the original award is left to the sound discretion of the chancellor and will not be disturbed unless that discretion was arbitrarily used or the judgment clearly wrong. Lott v. Lott, supra.\\nThe changes that have occurred in the circumstances of the parties since the 1972 divorce are essentially not in dispute. Appellant's gross annual income at the time of the divorce was $19,430.00. In July, 1973, he retired from the Navy and obtained civilian employment. At the time of the modification hearing he had remarried and Ms gross annual income from all sources (Navy retirement pay, salary and investments) had risen to $57,980.00. With Ms increased income has come an admittedly higher standard of living than he enjoyed at the time of the divorce. His listed weekly expenses, including alimony and child support, just about equals his net income. In addition to his income, he listed assets and liabilities reflecting a net worth of $95,594.00, most of which was developed after the divorce.\\nThe appellee's circumstances also changed. At the time of the divorce, she was unemployed and her only income was $277 per year from interest and dividends. After the divorce, she obtained employment as a travel agent and at the time of the modification hearing was earning a gross annual salary of $9,360.00 (about $7000.00 net after payroll deductions), plus unearned income of $1,764.00 per year from interest and dividends. The principal which yields this income is largely derived from her share of jointly held stock purchased during the marriage and her share of the proceeds from the post-divorce sale of the family home in California. At the time of the hearing, as well as at the time of the divorce, she was living with her children in a four bedroom townhouse in Crofton, Maryland, that she rented from her father for $350.00 per month.\\nThere is no indication in the record that her standard of living had changed since the divorce. In her testimony, appellee showed that to maintain that standard her expenses for herself and the three children averaged $1343.62 per month, or approximately $16,128.00 per year. She allocated these expenses between herself and the three children as approximately $4740.00 for herself and $11,378.00 for the children. To meet those combined needs she was receiving the following yearly amounts:\\nAlimony - $3,300\\nChild Support - 5,400 ($150 per month for 3 children)\\nSalary (net), interest and dividends - 8,764\\nTotal $17,464\\nWe now consider separately appellee's claim for increased alimony and child support.\\nAlimony\\nThe inquiry here is whether there has occurred such a material change in circumstances as to justify the chancellor in increasing the alimony set by the original decree in 1972. Stansbury v. Stansbury 223 Md. 475, 164 A.2d 877 (1960). It is clear that the change in the appellee's financial situation was such that no increase was warranted. Her income has risen from practically zero ($277 per year) to the point where at the time of the modification hearing it amounted to a net income of approximately $8700.00. In addition, she was receiving $3300.00 per year in alimony, or a total annual income of approximately $12,000.00. In view of the lack of any evidence that her actual needs exceeded that figure, the question arises as to whether the increase in the appellant's income, standing alone, is sufficient to justify the ordered increase. In the circumstances of this case, we hold that it is not.\\nThe appellee relies heavily on the case of Lott v. Lott, 17 Md. App. 440, 302 A.2d 666 (1973). In that case, it was argued that a substantial change in the circumstances of both parties since the original award is a prerequisite to increasing an origina,! award of alimony and child support. We rejected that argument and affirmed an increased award even though the former wife's needs had not substantially changed since the date of the original award. Speaking for the Court in that case, Judge Carter said:\\n\\\"It seems clear from the principles enunciated in the above cited cases and text that a substantial increase in the husband's income alone can, under appropriate circumstances, be legally sufficient to justify an increase in the amount of alimony even though the wife's needs continue as they existed at the time of the initial award. Whether or not an increase is justified in such a situation, however, is to be determined by an application to the changed conditions of all the relevant principles that are applied in fixing the amount of the original award of alimony.\\\" (Emphasis added). (Footnotes omitted).\\nThe important phrase in the above quotation is \\\"under appropriate circumstances.\\\" In Lott, the husband was a doctor who deserted his wife and child and disappeared with his paramour for approximately nine months. At the time of the desertion the parties enjoyed a rather high standard of living from his then \\\"lucrative practice.\\\" When the husband returned nine months later, his wife obtained a divorce from him on the ground of adultery. At the time of the divorce, he was beginning anew the practice of medicine that he had lost during his absence. The alimony and support awarded the wife in the divorce decree reflected his comparatively low income at the time. Following the divorce, his income substantially increased approximating his income at the time of his desertion. Approximately one year after the divorce his former wife petitioned for an increase in alimony and child support. The chancellor ordered, and this Court affirmed, an increase in direct proportion to the increase in the doctor's net earnings before taxes since the original decree.\\nIt is apparent that the justification for the increased award in Lott was the fact that it was needed by the former wife to maintain the standard of living to which she was entitled at the time of the original decree. The original award did not meet that need because of the husband's temporarily reduced income at the time. Thereafter, his income rose to the point that permitted the need to be met. Thus, the circumstances were \\\"appropriate\\\" for increasing alimony \\\"even though the wife's needs continue[d] as they existed at the time of the initial award.\\\" Lott v. Lott, supra, at 447.\\nLott does not mean that irrespective of the former wife's needs she is entitled to an increase in alimony so as to keep pace with the former husband's standard of living. All that was meant in Lott was that when, as there, a husband was directed to pay alimony, based on his income, and which did not meet the needs of the wife, a substantial increase in the former husband's income, alone, would justify an increase in alimony so as to satisfy the original \\\"needs\\\" of the wife.\\nIn the case now before us, even though the former husband's income has substantially increased since the divorce, there is nothing in the record to indicate that the initial award was not commensurate with the standard of living to which the appellee was then entitled; nor indeed, is there anything in the record to indicate that the initial award together with her own resources are now inadequate to enable the appellee to maintain that standard. The circumstances of the instant case are therefore not \\\"appropriate,\\\" as they were in Lott, for basing an increased award solely upon an increase in the former husband's income. A divorced spouse is entitled to alimony only to the extent that \\\"the spouse's income is insufficient to care for his or her needs.\\\" Md. Code, Art. 16, \\u00a7 5 (1957, 1973 Repl. Vol., 1977 Cum. Supp.). An important factor in determining \\\"needs\\\" is the station in life of the parties at the time of the divorce or enforced separation. Waters v. Waters, 191 Md. 436, 62 A.2d 250 (1948). The \\\"needs\\\" of the obligee spouse do not ordinarily include the \\\"need\\\" or the right to have his or her standard of living keep pace with that of the other spouse after a final divorce.\\nAbsent \\\"appropriate circumstances,\\\" the rule in other jurisdictions that have considered the precise question (i.e., whether an increase in the obligor spouse's income, standing alone, will justify an upward modification of an original alimony award) seems to be as expressed by the Court of Appeals of Arizona in Sheeley v. Sheeley, 10 Ariz. App. 318, 458 P.2d 522, 525 (1969):\\n\\\"We are aware that a change in the financial circumstances of the parties involved are [sic] one of the totality of circumstances which should be considered by the trial court in considering a modification of a divorce decree. An increase in the earning capacity of the husband after the divorce, standing alone, however, is not sufficient. A former wife has no continuing right to share in future accumulations of wealth by her divorced husband.\\\" (Citations omitted). (Emphasis supplied).\\nSee also Arnold v. Arnold, 332 Ill. App. 586, 76 N.E.2d 335 (1947), where one of the issues was whether an increase in the divorced husband's assets and income entitled the divorced wife to live on a higher scale than at the time of the divorce. The Appellate Court of Illinois held: \\\"The station in life to which defendant had accustomed plaintiff at the time of the entry of the decree and prior thereto is the station in life in which he is bound to maintain her now.\\\" 76 N.E.2d at 340. Although the Illinois Court increased the alimony in that case, it did so only because an increase was necessary to compensate for the inflationary costs of maintaining her standard of living and not merely because of her former husband's increased income and assets. In the present case, as we have said, there has been no showing that an increase is necessary under the circumstances.\\nThe rationale for the rule is well expressed by the Supreme Court of Oregon in Feves v. Feves, 254 P.2d 694 (1953). After stating the general rule that in a modification proceeding an obligor spouse's \\\"improved financial status, if any, does not of itself ordinarily warrant an increase [in alimony],\\\" the Court said:\\n\\\"Divorce terminates the marital status. Thereafter, the parties bear no relation to each other. They are as strangers. But for the statute, no obligation whatever would exist for further support and maintenance of the former wife.[ ]\\nIt is manifest that this statutory obligation for support and maintenance should not be so interpreted as to continue the rights of the former wife just as though no divorce had been granted. The statute does not contemplate a continuing right in her to share in future accumulations of wealth by her divorced husband, to which she contributes nothing.\\\" Id. at 700.\\nBased on the principles enunciated in the above cited authorities, we hold that, in the circumstances of the case at bar, the chancellor was clearly wrong in ordering an increase in alimony.\\nOn the other hand, we do not believe that the chancellor was clearly wrong or abused his discretion in refusing to abate or eliminate alimony altogether. The appellant does not argue on appeal that he is unable to pay the amount awarded by the original divorce decree. There is no question that appellee's living expenses have increased dramatically since the divorce, not only for herself but for her children, the responsibility for whose support and maintenance she must share with the appellant. Although her own income would now appear to compensate for these increased expenses, we do not believe that her demonstrated ability to provide some support for herself requires a holding that under all the circumstances there is no longer a need for the alimony originally awarded her.\\nII\\nNor do we believe that the chancellor was clearly wrong or abused his discretion in increasing the amount of child support from $150.00 per month for each of the three children to $250.00 per month per child. This represents a total annual contribution from the husband for child support of $9000.00. In view of the uncontradicted testimony of the appellee that the cost of caring for the children was $11,378.00 per year and considering the disparity in income of the parties, we see no reason to disturb the increased award for child support. Moreover, the principle that a divorced wife is not entitled to share automatically in future accumulations of wealth by her divorced husband does not apply with equal force to the matter of child support. After a final divorce, the husband-wife relationship ceases to exist. The parent-child relationship, however, is not affected by the divorce. The parties, though no longer man and wife, are still the parents of their children. The children's station in life should not therefore be fixed forever to their parents' station in life at the time of the divorce. It follows, therefore, that if thereafter either parent's income increases to the point where either of them enjoys a higher standard of living than obtained at the time of the divorce, their children should be entitled to have their needs measured by the higher standard.\\nIll\\nThe appellee testified that on the morning of the modification hearing her son, John, then aged 16, had joined the U.S. Marines. The hearing took place on September 18, 1978. Before the chancellor decided the case, counsel for appellee informed the chancellor by letter dated October 6, 1978, that appellee \\\"had just received a call from the United States Marine Corps indicating that John was being discharged and would be home in five days.\\\" The letter further stated: \\\"At this time, we have no details concerning the discharge. However, the fact of the discharge obviously will have some bearing on your deliberations in this case, and I wanted you to be aware of it.\\\" A copy of the letter was sent to appellant's counsel. In his memorandum accompanying the order of October 28,1978, the chancellor stated that in view of this information, \\\"the Court assumes he [John] has returned to live with Mrs. Cole.\\\" The order awarded increased child support for John as well as the other two children living with the appellee. The order, filed on October 28, 1978, directed that the increase be retroactive to February 23,1977, thus covering a period of 20 months of the increased payments prior to November 1978 (when the increased payments would otherwise have become operative).\\nThe appellant argues on appeal that it was error for the chancellor to have awarded child support for John on the basis of \\\"extra-judicial information and assumption.\\\" In his brief, the appellant, \\\"in all candor\\\" concedes that he \\\"has since verified his son's discharge from the Marine Corps; but he has never been able to determine his son's current status.\\\" He states further in his brief that \\\"[h]e is informed that John is now employed and, presumably, emancipated.\\\"\\nWe think it was error for the chancellor to base the child support for John upon a matter that was not in evidence. Under the circumstances, however, we think the error was harmless, or, at the least, waived by the appellant so far as these proceedings are concerned. The letter of October 6th from appellee's counsel to the chancellor must certainly have been regarded by appellant as a request to consider John Cole as an unemancipated child because of his discharge from the Marines and his imminent return to his mother's home. The appellant, however, took no action to object to the granting of that request. The objections now being raised on appeal were never presented to the chancellor in this proceeding, although there was ample opportunity to do so, both before and after the court order of October 28, 1978. Moreover, in the subsequent contempt proceedings filed against the appellant for his failure to pay the increased awards of alimony and child support, including support for John, the appellant made no objection to the amount of the arrearage claimed to be due for John's support. The arrearage claimed by the appellee did not include any support payments for John for the months during which the appellee concedes that John was in an emancipated status, but did include the months before and after those two months. Furthermore, in his appeal of the contempt judgment in Appeal No. 519, the appellant does not question the amount of the monetary judgment entered against him. As we shall see, infra, his only claim there is that if the order for increased support is reversed in this appeal (Appeal No. 159) the contempt judgment should also be reversed. Additionally, we note that after the two months hiatus (October and November 1978) the appellant, voluntarily and without apparent objection, resumed paying child support for John in the amount originally ordered by the 1972 divorce decree \\u2014 action on his part that is completely consistent with appellee's position that except for the two months hiatus John was not emancipated.\\nFor the foregoing reasons we do not believe that the technical error of the chancellor in \\\"assuming\\\" John to be unemancipated has given the appellant any just cause for complaint in this appeal.\\nIY\\nAppellant's final complaint in this appeal (Appeal No. 159) is that the chancellor abused his discretion in making the increased awards retroactive to the date on which appellee filed her petition for modification. We find no abuse. We are referred to nothing in the record showing that whatever justification existed for the increased awards on the date of the chancellor's order did not also exist in February, 1977, when the petition was filed.\\nAPPEAL NO. 519\\nOn February 5, 1979, while Appeal No. 159 was pending, the appellee filed in the proceedings a \\\"Petition to Cite Defendant For Contempt of Court and For Monetary Decree\\\" (emphasis added). The petition was based on appellant's failure to pay the increases in alimony and child support as directed by the order filed on October 28, 1978, from which the appeal had been taken. There was no claim that the amounts awarded by the original divorce decree had not been paid. In his answer to the petition, the appellant conceded that he had not paid the ordered increases and did not dispute the amount of the arrearage. By order filed March 30,1979, the chancellor,\\n\\\"ADJUDGED, ORDERED, and DECREED: That the Defendant is in contempt of this Court, and will be dealt with accordingly if found in this jurisdiction;\\nThat the Clerk enter a monetary decree in favor of Nancy B. Cole against William Sterling Cole, Jr. for $10,125 (the arrearage to 23 March 1979) and costs.\\\"\\nIn Ms appeal from that order, the appellant, to quote from his brief,\\n\\\"... does not contend that the appeal from the October 23, 1978 [filed October 28, 1978], decree stayed that decree or divested the lower Court of its power to enforce that decree by contempt citation or award of monetary judgment for arrearages found to be due under that decree. Link v. Link, 35 Md. App. 684, 371 A.2d 1146 (1977).\\\"\\nIn the view we take of the March 30th order, it is separable into two parts. The first paragraph of the order deals with what was clearly a constructive civil contempt proceeding. It was \\\"constructive\\\" because the contempt \\\"was not committed in the presence of the court\\\" (Md. Rule P 1 b). It was \\\"civil\\\" because it was a proceeding \\\"intended to preserve and enforce the rights of private parties to a suit and to compel obedience to\\\" an order \\\"primarily made to benefit such parties,\\\" State v. Roll and Scholl, 267 Md. 714, 728, 298 A.2d 867 (1973). As said in State v. Roll and Scholl, \\\"These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging.\\\" (Emphasis supplied). Id. at 728. See also Herd v. State, 37 Md. App. 362, 377 A.2d 574 (1977) and Antonelli v. Antonelli, 44 Md. App. 384 (1979). The contempt order in the present case does not meet that requirement. It must therefore be reversed.\\nThe second part of the March 30th order simply provides for a monetary judgment for the arrearages of alimony and child support in the amount of $10,125.00. Such a judgment is not dependent upon an adjudication of contempt. It could have been obtained independently of any contempt proceeding. Consequently, although we have found the contempt portion of the order to be invalid, it does not follow that the entire monetary judgment must also fall.\\nAs we have affirmed the child support increases awarded by the October 28th order in Appeal No. 159, that portion of the monetary judgment pertaining to child support will be affirmed. That amount is $7,000.00.\\nWith respect to that portion of the monetary judgment based on the unpaid arrearage of the increased alimony award, however, we shall reverse. That amount is $3,125.00. A money judgment based on an erroneous alimony award cannot be allowed to stand \\u2014 not because the chancellor lacked the power to enter the judgment or that it was improper at the time it was entered, but because the foundation for the judgment has been shown upon a timely appeal to no longer exist.\\nIn Appeal No. 159, that portion of the order filed October28,1978, in the Circuit Court for Anne Arundel County awarding increased alimony is reversed; all other portions of the order are affirmed.\\nIn Appeal No. 519, that portion of the order of March 30, 1979, finding appellant in contempt is reversed; the money judgment entered as part of that order is reduced to $7000.00, plus interest from March 30, 1979, and as reduced the judgment is affirmed.\\nCosts to be paid by appellant.\\n. The petition stated that since the divorce the parties' oldest son, William, had become \\\"emancipated.\\\"\\n. The cross-petition also prayed for custody of the children and to be relieved of certain portions of the Agreement concerning his life insurance program for the benefit of the children. These matters are not at issue in this appeal.\\n. In her list of expenses, appellee showed that she received $75.00 per month from her parents. We do not regard this as an item of expense.\\n. Exclusive of the $900 per year ($75 per month) from her parents.\\n. There may be other circumstances than those that existed in Lott v. Lott under which it may be \\\"appropriate\\\" on equitable principles, to increase an original alimony award based alone on the increased income of an obligor spouse. \\\"A classic example would be the working wife who helps her husband through professional school, or the early years of professional or business growth, only to be displaced as the husband begins to reap the gains from a jointly invested foundation of savings, abstentions, and sacrifices.\\\" Hunter v. Hunter, 198 N.Y.S.2d 1008 (1960).\\n. Having determined that the circumstances are not \\\"appropriate\\\" for an increase in alimony, we, of course, do not reach the issue of the amount of an increase. There is, therefore, no occasion to consider, as the appellee urges us to do, the various factors that may be relevant to a determination of the amount of an increase.\\n. See Bender v. Bender, 282 Md. 525, 529, 386 A.2d 772 (1978), to the same effect: \\\"Divorce, unknown at common law, is entirely a creature of statute; similarly, the authority for allowing alimony in connection with a divorce stems solely from legislative enactment, through the standards governing its award, i.e. the factors to be taken into consideration in arriving at a proper amount, are judicially created.\\\" (Citations omitted).\\n. In urging that no part of the money judgment be disturbed, the appellee cites Rand v. Rand, 40 Md. App. 550, 392 A.2d 1149 (1978). In that case, we held that a party who had made child support payments pursuant to a valid court order had no \\\"right of total recoupment\\\" following a reversal or modification of the order on appeal \\u2014 that the extent of recoupment was a matter for the trial court to determine in its discretion on the evidence. We see no application of the principles enunciated in Rand to the present case. Here, there is no claim for recoupment or restitution of money already paid, nor does that portion of the judgment being reversed involve child support, nor, as we have held in Appeal No. 159, does it appear that there was any need for the increased alimony.\"}"
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+"{\"id\": \"2317389\", \"name\": \"PETER NAILS v. MARKET TIRE COMPANY, INC. ET AL.\", \"name_abbreviation\": \"Nails v. Market Tire Co.\", \"decision_date\": \"1975-12-01\", \"docket_number\": \"No. 875\", \"first_page\": \"154\", \"last_page\": \"161\", \"citations\": \"29 Md. App. 154\", \"volume\": \"29\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:43:15.270177+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Moylan, Moore and Mason, JJ.\", \"parties\": \"PETER NAILS v. MARKET TIRE COMPANY, INC. ET AL.\", \"head_matter\": \"PETER NAILS v. MARKET TIRE COMPANY, INC. ET AL.\\n[No. 875,\\nSeptember Term, 1974.]\\nDecided December 1, 1975.\\nThe cause was argued before Moylan, Moore and Mason, JJ.\\nLeonard J. Ralston, Jr., with whom were Ashcraft, Gerel & Koonz on the brief, for appellant.\\nWilliam D. Foote, Jr., with whom was Francis J. Ford on the brief, for appellees.\", \"word_count\": \"2254\", \"char_count\": \"12758\", \"text\": \"Mason, J.,\\ndelivered the opinion of the Court.\\nThis is an appeal from the judgment of the Circuit Court for Montgomery County denying the Appellant, Peter Nails, compensation for an injury alleged to have been sustained in the course of his employment.\\nThe evidence adduced at trial disclosed that Nails was employed by the Market Tire Co. for approximately ten years. At the time of separation he was the head mechanic and worked on a commission basis. On Thursday, April 22, 1972, Nails was discharged because he recommended certain repairs for a customer's car which the company believed were not needed. On Saturday, April 24th, Nails returned to the company to pick up his tools, which he had been required to furnish as a condition of his employment. While lifting the tools, which weighed about 800 pounds, with the assistance of another employee, he claimed he injured his back. Nails testified further that it was customary to allow employees two or three days to remove their tools.\\nAfter a hearing, the trial court ruled, in effect, that Nails was not an employee at the time of the alleged injury and, therefore, the injury did not arise out of and in the course of his employment. No determination was made as to whether Nails' alleged injury resulted from an accident. As framed by the proceedings below, the narrow issue presented on this appeal is whether the alleged injury sustained by Nails after returning to the company to pick up his tools arose out of and in the course of his employment.\\nWe have been unable to find any Maryland case on this point and none has been called to our attention. We believe, however, that the case of Consol. Engineering Co. v. Feikin, 188 Md. 420, 52 A. 2d 913 (1947) is instructive and has precedential value as a guide.\\nIn Feikin, the claimant was a day laborer, who was only paid for the hours actually worked. After an extended illness, the claimant returned to the job on Monday, July 16th and was assigned to a labor-gang in the hot strip mill. He worked that one day and did not return again until 10:00 a.m. Friday, July 20th, to pick up his one day's pay. It was the custom of the company to distribute pay slips on Friday morning, but require the workmen to pick up their wages at the office between 3:00 p.m. and 4:00 p.m. After receipt of his pay slip, the claimant told the superintendent he would return to work Monday if he felt the same. The claimant then went to the hot strip mill and asked one of the gang leaders where Blair's gang was. He was told they were still working where they were on Monday. At 12:30 p.m. the claimant was found in the strip finishing department severely burned.\\nThe trial court directed a verdict for the claimant, which the Court of Appeals reversed and remanded for a new trial. The Court held that the evidence did not warrant the trial judge ruling as a matter of law that the claimant's disability was the result of an accidental injury arising out of and in the course of his employment. The Court indicated further the jury might have inferred that the claimant, having five hours to idle away before receiving his pay, visited the mill to talk about some personal matter.\\nEven though the Court of Appeals reversed Feikin on the grounds noted above, it adopted the English Rule which holds that where a workman remains on the premises or returns thereto to obtain his pay after work ceases, he is still acting in the course of his employment. As evidence of the adoption of the English Rule, the Court of Appeals said:\\n\\\"It is acknowledged that a contract of employment is not necessarily terminated when the actual work ceases, but may continue until the workman's wages are paid. This view was announced in England in 1907 in Lowry v. Sheffield Coal Co., 24 Times L. R. 142, 1 B.W.C.C. 1, where a collier quit work on Saturday at 5 a.m., and expected to resume work on Sunday night, but at noon Saturday w'hile walking along a footpath on the employer's premises on the way to the office to get his wages, he was knocked down by an engine moving along a railway line which ran into the employer's premises. The rule was reaffirmed in 1911 in Riley v. Holland & Sons, 1 K. B. 1029, 4 B.W.C.C. 155, where a female mill worker, who quit work on Wednesday, went to the mill on Friday, the regular pay day, to get her wages, and was injured when she slipped on her way down the steps from the pay office. In both cases it was held that the injuries arose out of and in the course of employment. . . .\\n\\\". . . The established custom, under which the workmen are required to appear at the employer's pay office for their wages on or after the regular pay day fixed by the employer, becomes a part of the contract of employment. Parrott v. Industrial Comm. of Ohio . .\\\". 188 Md. at 425, 426.\\nIn Lowry v. Sheffield Coal Co., supra, at 2, the English Court stated:\\n\\\"In my view it was just as much part of his employment to go to the pay office on that day at that hour as it was to go down the pit the following Sunday night.\\\"\\nIn Riley v. Holland & Sons, supra, at 157, the English Court observed:\\n\\\"The contractual obligations of the employers were not terminated or satisfied until the wages due on Wednesday were paid on Friday. . . . Though her employment was at an end on Wednesday night, in the sense that she had ceased to work under the contract, yet the employment continued because of the obligation of the employers to her arising out of the employment and continuing until Friday afternoon.\\\"\\nArthur Larson in his treatise on The Law of Workmen's Compensation, (vol. 1, 1972), supports the English Rule that \\\"the contract of employment is not fully terminated until the employee is paid\\\". Sec. 26.30. He further supports the point that \\\"collecting one's personal effects on leaving employment is logically no different from collecting one's pay, since both are necessary incidents of an orderly termination of the employment relation.\\\" Sec. 26.40. We agree and find no rational basis for not applying the principle laid down in Feikin, supra, and the cases cited therein, to the circumstances here.\\nIn Parrott v. Industrial Commission, 145 Ohio St. 66, 60 N.E.2d 660 (1945), cited with approval in Feikin, supra, the employee quit his job on October 23, and commenced working for another company on October 26. He returned to his former employer on October 29, to pick up one week's pay due him. The bookkeeper was at lunch and the employee went to the boiler room to get his work clothes he had left behind. In returning from the boiler room to the timekeeper's office, he fell and sustained an injury to his pelvic bone and hip. The Ohio Supreme Court, in addition to affirming the English Rule regarding an employee returning to pick up wages, said:\\n\\\"Clearly he was not a trespasser in going to the boiler room for his clothing which he had worn while at work there. He had a right to pick up his own personal property which he was unable to take away with him when he quit work . . . Acts of an employee done within a reasonable period of time after actual working hours in making the necessary preparations to terminate his employment, are incidents of and within the course of his employment within the meaning and operation of the workmen's compensation Laws.\\\" 60 N.E.2d at 662.\\nIn Molloy v. South Wales Anthracite Colliery, 4 B.W.C.C. 65 (1910), a miner left his job on April 28, 1910, after refusing to do certain work he was ordered to perform. He returned on Monday, May 2, 1910, and was told by the manager he had dismissed himself. The miner obtained leave to pick up his tools, and while down in the mine for that purpose, he was injured by a falling stone. The lower court found that the foreman ordered the miner to fetch his tools and that the accident arose out of and in the course of his employment. The Court of Appeals, England, affirmed. Larson, in commenting on this case, said:\\n\\\"When a man has been fired, it could indeed be properly said that he is impliedly ordered to clear his personal possessions out of the way to make a place where his successor can hang his hat.\\\"\\nI The Law of Workmen's Compensation, Sec. 26.40, at 5-212. Of like import, see Cowler v. The Moresby Coal Co. (Company tools), 1 Times Law Reports 575 (Q.B. 1885). See also Marra Bros. v. Cardillo, (Clothes) 59 F. S. 368 (E.D. Pa. 1945), aff'd. 154 F. 2d 357 (3rd Cir. 1946); Bardes v. East River Housing Corp., (Clothes) 14 App.Div.2d 939, 221 N.Y.S.2d 51 (1961); Mitchell v. Consolidated Coal, (Tools) 195 Iowa 415, 192 N. W. 145 (1923).\\nThere is responsible authority to the contrary. In Pederson v. Kromery, 201 Wis. 599, 231 N. W. 267 (1930), the employee was terminated, apparently on a weekend, and returned to the premises of the employer around 10:00 a.m. Monday to pick up his pay. After receiving his pay, he went to the warehouse to pick up his work clothes and tools. While going downstairs to where the articles were, he slipped and broke a bone in his foot. The Supreme Court of Wisconsin, although conceding that an employee, even after discharge, is covered by the Workmen's Compensation Act, provided he is injured on the employer's premises while present for the purpose of collecting his pay, held that Kromery's return to the warehouse after discharge to pick up his tools and clothes was not referable to his employment contract and was not covered by the Act. See Parten v. State Industrial Commission, 496 P. 2d 114 (Okla. 1972) and Johnson v. City of Albia, 203 Iowa 1171, 212 N. W. 419 (1927). Three judges dissented and their opinion is more persuasive and convincing than that of the majority. The dissenting opinion held that:\\n\\\"The appellant was subjected to the hazard that caused his injury solely because of his status as an employee. It was the fact that he was an employee that led him to take his tools and working clothes to the premises of his employer. It was the fact that he was an employee that made it necessary for him to return to- his employer's premises in order to secure his property. The removal of his working clothes and tools from the premises was just as essential to end his status as an employee as was the payment of his wages. In either case I believe it should be held that the status continues until he had been paid his wages and has had a reasonable opportunity to remove his personal belongings, taken to his employer's premises in order that he' might there use them for the purpose of promoting the business of his employer. . . .\\n\\\". . . To hold that the status created by the employment is terminated before the employee has a reasonable opportunity after notice of discharge to get his personal belongings seems to me to be a reversal of the policy of the law as it has been interpreted heretofore by this Court and by other courts under similar acts.\\\" 231 N. W. at 270, 271.\\nWhether an accident causing an injury to an employee results from some obligation, condition or incident of the employment, depends .upon the circumstances of each particular case. Feikin, supra, at 424.\\nIn the present case, the employee returned to the job two days after being discharged to pick up his tools, which he was required to furnish as a condition of his employment. The tools, together with the tool box, weighed approximately 800 pounds and, obviously, required a reasonable time to remove. Moreover, the tools were used for the benefit of the employer's business, and it was customary to allow employees two or three days to remove their tools.\\nUnder the circumstances of this case and the fact that \\\"The Workmen's Compensation Act should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes\\\", Beth. Sp. Pt. Shipy'd v. Hemp field, 206 Md. 589, 594, 112 A. 2d 488 (1955), we hold that if the employee sustained an accidental injury as alleged, it arose out of and in the course of his employment.\\nJudgment reversed, case remanded for a new trial, costs to be paid by appellee.\\n. Although the employer moved to strike the latter testimony, he continued his cross-examination of the witness without obtaining a ruling on the motion. In the absence of showing a ruling was made or sought, the motion is treated as waived and not preserved for appellate review. Maryland Rules 522 d, 1085.\\n. The employee in the instant case did not receive his final wages until after the accident.\"}"
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+"{\"id\": \"2325909\", \"name\": \"CARL FREDERICK OTTO GRAEF, JR. v. STATE OF MARYLAND\", \"name_abbreviation\": \"Graef v. State\", \"decision_date\": \"1967-04-14\", \"docket_number\": \"No. 28\", \"first_page\": \"161\", \"last_page\": \"172\", \"citations\": \"1 Md. App. 161\", \"volume\": \"1\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:42:13.206859+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Anderson, Morton, Orth, and Thompson, JJ., and Dyer, J., Associate Judge of the 'Third Judicial Circuit, specially assigned.\", \"parties\": \"CARL FREDERICK OTTO GRAEF, JR. v. STATE OF MARYLAND\", \"head_matter\": \"CARL FREDERICK OTTO GRAEF, JR. v. STATE OF MARYLAND\\n[No. 28,\\nInitial Term, 1967.]\\nDecided April 14, 1967.\\nThe cause was argued before Anderson, Morton, Orth, and Thompson, JJ., and Dyer, J., Associate Judge of the 'Third Judicial Circuit, specially assigned.\\nLeonard J. Kerpelmm for appellant.\\nAlfred J. O\\u2019Ferrall, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julius A. Romano, former Assistant Attorney General, Charles F. Moylan, Jr., State\\u2019s Attorney for Baltimore City, and Allen Lipson, Assistant State\\u2019s Attorney for Baltimore City, on the Frief, for appellee.\", \"word_count\": \"2953\", \"char_count\": \"16970\", \"text\": \"Anderson, J.,\\ndelivered the opinion of the Court.\\nAppellant, Carl Frederick Otto Graef, Jr., was found guilty of murder in the second degree by a jury in the Criminal Court of Baltimore. From his judgment and sentence of ten years confinement, he has appealed.\\nHe contends that the trial court erred: (1) in denying his motions for judgments of acquittal of second degree murder and manslaughter; (2) in allowing the voir dire question on conscientious scruples against capital punishment; (3) in refusing to sequester the jury; (4) in the light of Escobedo and Miranda, to have admitted a photograph taken of the defendant after his attorney had instructed the police in writing to \\\"conduct no further interviews with the defendant\\\"; (5) in its instructions to the jury.\\nSince the amendment to Article 15, Section 5 of the Constitution was adopted in 1950 (See also Code (1966 Supp.) Article 27, Section 593 and Maryland Rule 755), it has been the duty of the Court of Appeals, and now this Court, when the question is properly reserved, to review the sufficiency of the evidence to sustain a conviction in a criminal case. In performing this duty, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, but determine if there be any relevant evidence adduced at the trial which would properly sustain a conviction. Clarke v. State, 238 Md. 11, 207 A. 2d 456 (1965); Briley v. State, 212 Md. 445, and cases therein cited.\\nI\\nApplying the above test to the evidence produced below, we have reached the conclusion that it was sufficient to sustain the conviction, even though in substantial part it was circumstantial in nature rather than direct save for the appellant's statement as to how the shooting occurred. It would serve n& useful purpose to set out in minute detail the rather voluminous, testimony. A summary thereof follows:\\nOn May 16, 1965, Police Officer Earl E. Williams of the Southern District, at about 11:30 p.m., observed the defendant ifi a phone booth and overheard him talking loudly into the telephone summoning an ambulance to 1308 Eight Street because a man had been shot. The officer asked the defendant what the trouble was and was told, \\\"I am trying to get an ambulance. I need it at 1308 Eight Street. A man has been shot in my apartment. He may be dying.\\\" The officer and the defendant went to the apartment and the victim of the shooting was found with his feet partially in the doorway and a wound in his back. The officer asked the defendant who did this, and was told, \\\"I did it, but it was an accident.\\\" The shotgun used in the shooting was found on the living room floor and the defendant was placed under arrest.\\nThere were no eye-witnesses to the shooting and the defendant elected not to testify at the trial. His version of what happened was related to Sergeant John J. McGee of the Southern District who arrived at the apartment sometime shortly after 11:30 p.m. The defendant told Sergeant McGee in substance that after drinking about six bottles of beer, he left his apartment sometime after 5 :00 p.m. and went to the vicinity of City Hall Plaza looking for a homosexual contact. He met one, the deceased, who struck up a conversation with him and a proposition was made \\u2014 asking the defendant if he wanted to make nine dollars. He said yes. He then accompanied the deceased to a hotel on Baltimore Street where they went to the deceased's hotel room. They drank a half pint of Vodka between them, looked at some pornographic pictures belonging to the deceased, engaged in some minor homosexual play and then went to the defendant's apartment on Light Street for the purpose of looking at some pornographic pictures which belonged to the defendant. On the way to the apartment the deceased stopped and bought six cans of beer.\\nThe accused and the deceased arrived at the defendant's apartment, the defendant got the pictures, a radio and some fried chicken from the refrigerator and they sat down at the kitchen table. Defendant then went into the bedroom and got a record player and some records and started hooking it up in the kitchen. The deceased then got up and walked into the bathroom. While the deceased was in the bathroom the defendant picked up a shotgun which he claimed he had been working on previously and which was lying on an unused gas stove, ostensibly to take it to the bedroom. As he did so the deceased came out of the bathroom where he had been for a short time, ran by him and through the living room to the front door leading into the hall. As he reached the doorway and was \\\"fidgeting\\\" with the doorknob, the defendant stepped into the living room, the gun went off and the full charge struck the deceased in the back. The deceased fell against the door and then backwards over the sofa. Defendant then opened the door and deceased fell and didn't stir, so the defendant ran outside and went to the outdoor phone booth and called for an ambulance where he was found there by Officer Williams.\\nOn June 18, 1965, defendant appeared with his counsel at the State's Attorney's Office for Baltimore City and with police officers present was interrogated by the Assistant State's Attorney and his own counsel about the shooting. The transcription of this questioning was admitted at the trial without objection and was read to the jury. While it went into what had taken place on the evening in question in greater detail, it was substantially the same story that he had told Sergeant McGee at the time of the shooting.\\nThe gun which was found lying on the living room floor of the defendant's apartment was a shotgun in very poor mechanical condition, in that the trigger and trigger guard and shell extractor were missing; the butt plate was missing; some screws were missing; and the shotgun was sloppy in its fit. Sergeant Charles B. Knight of the Crime Laboratory of the Baltimore City Police Department, who qualified as a gun expert, testified that 6y> to 7 pounds of pull was necessary to retract the hammer off the firing pin. It was his opinion that the gun could only be discharged in one of two ways, either the hammer was pulled back and let go or the hammer was struck from the back with a malletlike object. In order to fire, the hammer must be pulled back to a three-quarter position or full cock or it would not fire. This was proved by his experiments. There was testimony that the gun could be fired by dragging the hammer against one's clothing but even this required that the hammer be pulled back to three-quarter cock. There was no evidence that the gun was dropped before it had been fired. There can be no question but that the gun was a very dangerous weapon and in addition it was fully loaded.\\nAt the end of the entire case the trial judge granted the defendant's motion for judgment of acquittal as to murder in the first degree and denied the defendant's motion for judgment of acquittal as to murder in the second degree and manslaughter on the ground that there was enough evidence to permit the case to go to the jury as to second degree or manslaughter.\\nThe trial court in its instructions explained to the jury that the essential distinction between murder and manslaughter was the presence or absence of malice and that malice was an essential element of second degree murder. The trial court then defined malice in this connection as the intentional doing of a wrongful act to another without legal excuse or justification. It includes any wrongful act done wilfully or purposely. In this regard the court further instructed the jury as follows:\\n\\\"If the jury should find that the defendant did shoot the deceased, and did so with intent to inflict serious bodily harm upon him, and did so without any just cause or excuse for doing so or without any circumstances of mitigation, then and in that event, if you so find, the defendant would be deemed to have shot the deceased with malice aforethought. And if the jury further find that death ensued as a result of such shooting, then the defendant would be guilty of murder in the second degree.\\\"\\nThe evidence shows that the defendant was armed with a shotgun from the time shortly after the victim went into the bathroom and that he shot the deceased in the back from a distance of about eleven feet as he was fidgeting with the doorknob in an attempt to open the door leading into the hallway. At the time he was shot he was fleeing from the defendant, having run from the bathroom through the living room to the door. The defendant had no explanation of how or why the shotgun went off. He said merely that it went off when he stepped into the living room. The shotgun would not fire except by pulling the hammer back and letting it go or by being struck from the back with an object. The gun would not fire unless the hammer was pulled back at least three-quarter cock and it took 6j^ to 7 pounds of pull to retract the hammer. The defendant never did say in his oral statement to the police on the evening of the shooting or in the State's Attorney's Office that the gun went off by brushing against his clothing as was demonstrated by his counsel before the jury. Even when scraped against the clothing it was necessary to pull the hammer back three-quarter cock and a fair amount of pressure would have to be applied against the body or by turning sharply. Although the defendant was looking to run into a homosexual contact to make some money, he never did get any money from the deceased.\\nThe evidence as outlined above, together with the reasonable and permissible inferences to be drawn therefrom, was sufficient to permit a finding by the jury of all the essential elements of second degree murder; hence the case was properly submitted to the jury.\\nThis ruling renders it unnecessary to discuss denial of appellant's motion for a judgment of acquittal of manslaughter.\\nII\\nWe find that the trial court did not err in allowing the voir dire question on conscientious scruples against capital punishment.\\nIn Corens v. State, 185 Md. 561, 564, 45 A. 2d 340 (1946), it was settled that a person who has conscientious scruples against capital punishment cannot properly examine the evidence in a prosecution for a crime for which capital punishment may be imposed because he does not stand impartial between the defendant and the State. When it is shown on the voir dire examination of a prospective juror that he has such conscientious scruples, the State may challenge for cause.\\nThe defendant argues that the State knew at the time of trial that the evidence was not sufficient to support a first degree murder verdict and, as a result of the question being asked, the defendant was deprived of \\\"nine sensitive and humane veniremen who were thus disqualified.\\\"\\nIn the instant case the defendant was charged in an indictment with first degree murder and the question was within the discretion of the trial court who felt it to be a proper question under the indictment.\\nIll\\nThe defendant next contends that there was error on the part of the trial court in refusing to sequester the jury after he made such a request.\\nUnder Article 51, Section 29 of the Code, the trial court in its discretion may permit the jurors before the submission of the case to the jury to separate or to be kept in charge of proper officers. See also Maryland Rule 543 a (8). In Midgett v. State, 223 Md. 282, 164 A. 2d 526 (1960), the Court of Appeals held that the separation of the jury is permissible in the discretion of the trial court prior to submission of the case to the jury and prejudice is not to be presumed from such separation simply because of the possibility of influence or contamination through outside contact. There the Court noted that the statute makes no distinction between different types of criminal cases and that the rule is the same for capital cases, for non-capital cases and for misdemeanors. Here the record clearly shows that the court issued proper admonitions to the jury when recesses occurred.\\nThe deceased was a priest and while that fact was not revealed to the jury, one juror, at the end of the first day, reported to the court that he was aware of this and thought he may have previously met him. On questioning by the court and defense counsel he stated this would have no effect upon his verdict. After a discussion with the defendant, his counsel stated he was fully satisfied and refused to ask for a mistrial, and although the court offered to replace this juror with the alternate (13th) juror, both defendant and counsel refused. Although defendant's counsel offered a newspaper clipping in evidence which discussed the trial and again moved to sequester the jury on the ground of prejudice from newspaper publicity he failed to show that the article was prejudicial, that any juror had read the newspaper article, and that any juror's decision was influenced by any newspaper publicity. The trial court was very careful in her admonitions to the jury and there is nothing to show they were not heeded. Presley v. State, 224 Md. 550, 555, 168 A. 2d 510 (1960). We find no abuse of the court's discretion in refusing to sequester the jury.\\nIV\\nThe defendant further contends that the court erred in admitting a photograph of the defendant in evidence after his attorney had instructed the police in writing to \\\"conduct no further interviews with the defendant.\\\" In this connection he cites the recent Supreme Court cases of Escobedo and Mircmda. However, the constitutional principles enunciated in these cases apply to custodial interrogation of criminal suspects. Neither Escobedo or Miranda prohibit a reasonable search. Fingerprinting and photographing are not proscribed. In Schmerber v. California, 384 U. S. 757, 16 L. Ed. 2d 908 (decided June 20, 1966), the United States Supreme Court held that a compulsory blood test, despite the accused's refusal to submit on advice of counsel, and admitted in evidence over his objection, did not violate his 4th, 5th and 6th Amendment rights and the due process clause of the 14th Amendment as afforded by Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 977 (1964); Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 694 (1960); and Mapp v. Ohio, 367 U. S. 643, 16 L. Ed. 719 (1961). The Court held that the blood sample did not violate the 4th Amendment prohibiting unlawful search and seizure because the arrest was lawful and there was no invasion of privacy. The Court stated further that the suspect's privilege against self-incrimination was not violated because the taking of the blood sample was not a testimonial or communicative act. Finally, it was stated that the 6th Amendment right to counsel was not violated when the blood sample was taken for the reason that, despite counsel's advice, there was no legal right to object to the blood test. Here, the photograph was taken to show the type of trousers the defendant was wearing at the time of his arrest. This type of trousers required no belt and it had been so testified by one of the State's witnesses, Detective Fishback. We find no error in its admission in evidence.\\nV\\nEasily, appellant contends that the court erred in its instructions to the jury. In presenting this argument counsel has taken certain portions of the court's instructions out of context. When the court's instructions are read in the entirety it will be seen that they fairly and accurately state the law as applied to the facts in this case. After explaining the difference between murder and manslaughter the court instructed the jury that if they \\\"should find from the evidence that the shooting of the deceased was done by the defendant but that such shooting was accidental, unintentional, without any fault on his part, or was not due to the wanton and reckless disregard of human life, then and in any of these events, your verdict should be not guilty.\\\" The court then went on to explain the burden of proof upon the State, and proof beyond a reasonable doubt. Maryland Rule 756 b provides that \\\"the court need not grant any requested instructions if the matter is fairly covered by the instructions actually given.\\\" We find no error in tire court's instructions which fully and adequately cover the law applicable to this case.\\nFor the above reasons the judgment must be affirmed.\\nJudgment affirmed.\"}"
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+"{\"id\": \"2327688\", \"name\": \"LEON ELLSWORTH JONES v. STATE OF MARYLAND\", \"name_abbreviation\": \"Jones v. State\", \"decision_date\": \"1967-11-16\", \"docket_number\": \"No. 231\", \"first_page\": \"429\", \"last_page\": \"432\", \"citations\": \"2 Md. App. 429\", \"volume\": \"2\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:57:56.903758+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LEON ELLSWORTH JONES v. STATE OF MARYLAND\", \"head_matter\": \"LEON ELLSWORTH JONES v. STATE OF MARYLAND\\n[No. 231,\\nInitial Term, 1967.]\\nDecided November 16, 1967.\\nThe cause was submitted to Anderson, Morton, Orth, and Thompson, JJ., and Travers, J., Associate Judge of the First Judicial Circuit, specially assigned.\\nSamuel J. DeBlasis for appellant.\\nRichard M. Pollitt, Special Attorney, with whom were Pran'ds B. Burch, Attorney General, Arthur A. Marshall, Jr., State\\u2019s Attorney for Prince George\\u2019s County, and Ronald Willoner, Assistant State\\u2019s Attorney for Prince George\\u2019s County, on the brief, for appellee.\", \"word_count\": \"953\", \"char_count\": \"5663\", \"text\": \"Per Curiam.\\nThe appellant was found guilty on August 2, 1966 by a jury in the Circuit Court for Prince George's County of murder in the second degree, and sentenced to a term of eighteen years in the Maryland Penitentiary. Two questions of law are presented on this appeal: (1) whether appellant was denied his right to :an impartial'jury by the empaneling of four jurors sitting in this case who had sat six weeks previous in a separate criminal action in which the appellant was the accused, and (2) whether the trial court committed error in overruling appellant's objection to, and subsequent motion to strike, certain testimony relating to his oral statement to police made at the time of his apprehension.\\nThe evidence adduced at trial indicated that one Andrew Dunston was shot in the head with a pistol while he was involved in an altercation with David Michael Leazer outside a dance hall in Eorestville, Maryland. Appellant was identified by eyewitnesses as the man who fired the shot and left the scene in a 1957 Chevrolet automobile. Appellant was subsequently ^apprehended by police a short distance from the scene of the \\u00abhooting, whereupon he denied having been at the dance hall. Identification of the appellant as the man who had done the shooting was then made by a witness, and appellant was arrested. No question of the sufficiency of the evidence is presented on this appeal.\\nConceding the proposition that appellant's right to an impartial jury is guaranteed by both Article 21 of the Maryland Declaration of Rights, Bristow v. State, 242 Md. 283, 288, and the Fourteenth Amendment to the Federal Constitution, Beck v. Washington, 369 U. S. 541; Irvin v. Dowd, 366 U. S. 717, it is clear that the burden of proving that the jury was in fact not impartial is on the appellant. Bristow v. State, supra. Appellant does not, however, carry that burden by merely establishing that four of the jurors sitting on his trial had previously sat on a jury which convicted him of another unrelated offense. The general rule is that a juror is not necessarily incompetent because he has been a member of the jury on a former trial of the same accused for a different offense. See, e.g., Ex Parte Craft, 138 So. 2d 266 (Ala. 1962); Bowling v. Commonwealth, 286 S. W. 2d 889 (Ky. 1955); Howell v. State, 255 S. W. 171 (Tex. 1923); Burford v. Commonwealth, 110 S. E. 428 (Va. 1922); State v. Riley, 151 S. E. 2d 308 (W. Va. 1966); Annotation: 6 A.L.R. 3d 546. The former trial of appellant on which the four jurors had sat was for storehouse breaking and larceny on a set of facts totally unrelated to the instant case. In the absence of specific proof of their bias, these jurors cannot be presumed to have acted other than impartially. We hold, on the record before us, that no unfairness has been shown by appellant, and we so conclude without even considering the probability that appellant waived his right to challenge the array by failing to object at trial, failing properly to question prospective jurors on voir dire, or failing to exhaust his peremptory challenges.\\nAppellant's second contention \\u2014 that the statement given by him to the arresting officer was improperly admitted in evidence \\u2014is also without merit. While it appears that appellant was given no warning of his constitutional rights as required by Miranda v. Arizona, 384 U. S. 436, and while the dictates of that decision apply to exculpatory as well as inculpatory statements, Miranda, by its terms, applies only to instances of \\\"custodial interrogation.\\\" By \\\"custodial interrogation\\\" is meant \\\"questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any signficant way.\\\" 384 U. S. at page 444. Appellant herein was neither taken into custody, nor deprived of his freedom in any significant way. At the time the officer asked appellant the question objected to, appellant was sitting in his own automobile with his girlfriend. He had not then been arrested but was merely being asked if he had been at the dance hall outside of which the shooting had occurred. The officer stated on cross-examination that it was not his intention to arrest appellant until after identification had been made.\\nIn Duffy v. State, 243 Md. 425, the Court of Appeals distinguished a mere accosting by police from an actual arrest. In that case, a policeman entered the bedroom in which the defendant was sleeping and seeing a knife asked him: \\\"Is this the knife you used in the fight?\\\" The court held that such action constituted an accosting, not an arrest, and that the question did not amount to \\\"custodial interrogation\\\" within the meaning of Miranda. We hold that appellant's denial of his presence at the scene of the crime was similarly a product of an accosting and that its admission into evidence by the court below was not error.\\nIn his brief, appellant raises three additional questions in proper person. None of these questions were raised or decided by the trial court. They are, therefore, not properly before us. Maryland Rule 1085.\\nJudgment affirmed.\"}"
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+"{\"id\": \"2339158\", \"name\": \"THOMAS BEAUREGARD CLARKE v. STATE OF MARYLAND\", \"name_abbreviation\": \"Clarke v. State\", \"decision_date\": \"1970-06-24\", \"docket_number\": \"No. 392\", \"first_page\": \"570\", \"last_page\": \"574\", \"citations\": \"9 Md. App. 570\", \"volume\": \"9\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:50:07.792760+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THOMAS BEAUREGARD CLARKE v. STATE OF MARYLAND\", \"head_matter\": \"THOMAS BEAUREGARD CLARKE v. STATE OF MARYLAND\\n[No. 392,\\nSeptember Term, 1969.]\\nDecided June 24, 1970.\\nThe cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.\\nBernard F. Goldberg for appellant.\\nFrancis X. Pugh, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Richard J. Kinlein, State\\u2019s Attorney for Howard County, and Charles E. Wehland, Assistant State\\u2019s Attorney for Howard County, on the brief, for appellee.\", \"word_count\": \"1218\", \"char_count\": \"7209\", \"text\": \"Morton, J.,\\ndelivered the opinion of the Court.\\nAppellant was convicted in a non-jury trial in the Circuit Court for Howard County of violating Md. Code, Art. 66V2, Sec. 72, which provides, in part, that \\\"Any person who has in his possession any vehicle which he knows or has reason to believe has been stolen or unlawfully taken is guilty of a felony He was fined $1,000 and sentenced to three years imprisonment which sentence was suspended. In this appeal it is contended that \\\"the court erred in refusing defendant's motions for a judgment of acquittal, both at the close of the State's case and at the close of the entire case.\\\"\\nThe appellant took the stand in his own defense and also called a witness on his behalf. In doing so, he withdrew his motion for judgment of acquittal offered at the conclusion of the State's case, Md. Rule 755 b, and that issue is not properly before us. Iozzi v. State, 5 Md. App. 415. We cannot agree with his second contention that the denial of his motion for judgment of acquittal made at the conclusion of the entire case should have been granted.\\nThe record indicates that a 1967 Dodge Polara sedan was rented in New York from Avis Rent-A-Car Systems, Inc. by a purported Dr. John W. Best on May 23, 1967. When the car was not returned by September 8, 1967, the matter was reported to the New York Police and Avis paid the purchase price to the manufacturer from whom the car was being leased.\\nThe same vehicle was driven into appellant's automobile repair shop for repairs on September 14, 1967, by a man, according to appellant, wearing an army uniform who identified himself as Sgt. Charles Whitmore, stationed at Ft. Meade, Maryland. The \\\"work sheet\\\" and \\\"estimate\\\" produced by appellant showed that the repairs were to cost $700 and that a $100 deposit was paid. The Sergeant called appellant three days later inquiring when the repairs would be completed but, according to appellant, was never heard from thereafter. From the time the repairs were completed until March 15, 1968, when the vehicle was impounded by the Maryland State Police, the car was used once or twice a week either by appellant or his employees \\\"to keep the battery charged and keep the car limbered up\\\", \\\"to pick up the mail\\\" or to go \\\"a mile down the road to pick up a part or something.\\\"\\nWhen the car first arrived at appellant's garage, it had out-of-state license plates. Appellant could not remember from which state the plates were issued, but he \\\"thought it was Florida.\\\" When the out-of-state license plates expired sometime \\\"after the first of the year\\\", appellant had them removed and replaced them with a set of plates for another car registered in his own name. The car contained no registration card or other papers which would identify its owner.\\nOn March 15,1968, Trooper Edward Sweetman stopped a Volkswagen being driven by appellant which had no front Maryland license tag and the Dodge Polara in question being driven by a friend of appellant which was following the Volkswagen and which appeared to the officer to have faulty equipment. It appears that appellant was returning to his garage after picking up the Volkswagen from another repair shop and had asked the friend to follow him in the Dodge.\\nIn the process of checking the Dodge's ownership, the trooper discovered that the tags were issued for another car owned by appellant. The trooper then attempted to ascertain the serial number, which is normally affixed to the door post, and \\\"noticed on the left front door post, that there were two rivets there, but \\u2014 and also scratch marks, and that the manufacturer's identification number had been removed.\\\"\\nThe car was impounded and later that evening the serial number was obtained from a hidden location on the vehicle by a representative of the National Auto Thief Bureau and it matched the serial number of the car \\\"rented\\\" from Avis nearly ten months earlier.\\nIn this setting, it is contended that the evidence was legally insufficient to sustain appellant's conviction.\\nThe gravamen of Md. Code, Art. 68-V2, Sec. 72, is the possession of a vehicle which the accused \\\"knows or has reason to believe has been stolen or unlawfully taken Proof of knowledge by the accused that the car had been stolen or unlawfully taken is one facet of the statute and would constitute sufficient evidence to convict. Such knowledge may be proved, as any other fact, by evidence establishing that the accused has \\\"actual or direct knowledge\\\" that the car was unlawfully taken, as, for example, that he unlawfully took the car himself, or by circumstantial evidence which permits a rational inference that the accused, although he denies it, knows the car was unlawfully taken. Moreover, as this Court said in Greenway v. State, 8 Md. App. 194, it is a well recognized rule of law that an individual \\\"with an unlawful purpose in mind, who deliberately 'shuts his eyes' to avoid knowing what would otherwise be obvious to view, acts at his peril in this regard as far as the criminal law is concerned, and is treated as having 'knowledge of the facts as they are ultimately discovered to be'. Perkins, Criminal Lato (1957), pp. 684-685\\nHowever, proof that the accused \\\"knew\\\" the car was unlawfully taken is not required to sustain a conviction under the statute for the statute contains a separate and alternative prong, namely, that the accused \\\"has reason to believe\\\" the vehicle was stolen or unlawfully taken. Here, the evidence adduced at trial showed that appellant, who for many years was in the business of handling automobiles, was in possession of the vehicle in question for a period of approximately six months with no communication from the individual who delivered the car to the shop. Moreover, the car, which was practically new, contained no registration card or other papers which would identify its owner and the plate containing the manufacturer's identification number had been removed from its usual position on the door post. Although appellant testified that he did not know that the plate had been removed, the trial judge found, and we cannot say that he was clearly wrong, that while it was possible that appellant did not notice the absence of the serial number immediately, \\\"[i]t is incredible to me that he didn't find it out sooner or later.\\\"\\nUnder the circumstances, we find that there was sufficient evidence presented from which the trial judge could be fairly convinced, beyond a reasonable doubt, that appellant had \\\"reason to believe\\\" the vehicle in his possession had been stolen or unlawfully taken. Accordingly, we cannot say that the judgment of the lower court was clearly erroneous. Md. Rule 1086.\\nJudgment affirmed. Appellant to pay costs.\"}"
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+"{\"id\": \"2342245\", \"name\": \"ATLANTIC SEA-CON. LTD., et al. v. ROBERT DANN COMPANY\", \"name_abbreviation\": \"Atlantic Sea-Con. Ltd. v. Robert Dann Co.\", \"decision_date\": \"1989-07-06\", \"docket_number\": \"No. 1809\", \"first_page\": \"161\", \"last_page\": \"174\", \"citations\": \"80 Md. App. 161\", \"volume\": \"80\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:50:12.723456+00:00\", \"provenance\": \"CAP\", \"judges\": \"Argued before GILBERT, C.J., and KARWACKI and WENNER, JJ.\", \"parties\": \"ATLANTIC SEA-CON. LTD., et al. v. ROBERT DANN COMPANY.\", \"head_matter\": \"560 A.2d 592\\nATLANTIC SEA-CON. LTD., et al. v. ROBERT DANN COMPANY.\\nNo. 1809\\nSept. Term, 1988.\\nCourt of Special Appeals of Maryland.\\nJuly 6, 1989.\\nCertiorari Granted Nov. 28, 1989.\\nFulton P. Jeffers (Christopher F. Davis and Hearne & Bailey, P.A., on the brief), Salisbury, for appellants.\\nA. Gillis Allen, II (John C. Seipp and Adkins, Potts & Smethurst, on the brief), Salisbury, for appellee.\\nArgued before GILBERT, C.J., and KARWACKI and WENNER, JJ.\", \"word_count\": \"4035\", \"char_count\": \"24598\", \"text\": \"KARWACKI, Judge.\\nThe Maryland State Highway Administration (Highway Administration) on March 18, 1986, awarded one of the appellants, Atlantic Sea-Con, Ltd. (Atlantic), a $3,243,885 contract to fortify the foundation of the U.S. Route 50 bridge leading into Ocean City against erosion caused by the swift currents prevailing at the Sinepuxent Bay inlet from the Atlantic Ocean. In accordance with Maryland's \\\"Little Miller Act,\\\" State Fin. & Proc.Code Ann. \\u00a7 17-101 through 17-110, Atlantic, as the State's prime contractor, posted a payment bond in the amount of the total contract price, with Federal Insurance Co., another appellant, as its surety.\\nOn May 12, 1986, Atlantic sent a purchase order to Marine Structural Applications, Inc. (MSA) for approximately 56,200 tons of rock needed for the project. Under the terms of the agreement, this rock was to be mined from a state-approved quarry and delivered to Snow Hill in Worcester County, where a trucking company would then load the rock and transport it to the construction site. MSA elected to purchase the stone from an approved quarry located in Occoquan, Virginia. At that site, MSA sorted the rock so that it would match contract specifications and loaded it on barges on the Potomac River. MSA's tug boats would then tow the barges to the destination point at Snow Hill. The final cost of MSA's performance was $385,708.17, or 11.9% of the total contract price.\\nIn August of 1986, after one of its tug boats became disabled, MSA contracted with the Robert Dann Company, the appellee, for its towing services. From August 11 to August 31, appellee's boats operated by appellee's employees tugged MSA's rock-filled barges from Occoquan to Snow Hill without incident. When MSA went bankrupt in the fall of 1986, appellee sought reimbursement for its outstanding bill of $37,100.00 from the payment bond posted by Atlantic. Appellants refused payment, contending that appellee was not covered by the bond. This litigation ensued.\\nAppellee filed suit on July 20, 1987 in the Circuit Court for Worcester County to collect its unpaid tugging fees from appellants' payment bond. The parties agreed upon all of the facts giving rise to appellee's claim. The only issue in dispute was whether the appellee qualified for protection under the statutory bond. Perceiving this question to be one of fact, the court denied appellants' motion for summary judgment and its motions for judgment. The jury, in turn, concluded that appellee was protected by appellants' bond and returned a verdict in favor of the appellee.\\nIn their appeal from the judgment entered on that, verdict, appellants pose the following questions for our review:\\nI. Did the trial court err in denying appellant's [sic] motion for summary judgment and submitting to the jury the issue of whether the Little Miller Act afforded appellee payment security; and\\nII. Was appellee, as a matter of law, among the class of persons that the Little Miller Act was designed to protect?\\nWhile we agree with appellants that the evidence failed to generate any material disputed facts below, we nevertheless hold that appellee was entitled as a matter of law to coverage under appellants' payment bond. Consequently, we shall affirm the judgment of the trial court.\\nContractors on all construction projects exceeding $50,000 which are funded by \\\"a public body\\\" must furnish security to \\\"guaranty payment for labor and materials____\\\" State Fin. & Proc. Law Ann. \\u00a7 17-103(a) and 17-101(b) (1988 Repl.Vol.). This security usually takes the form of a bond \\\"executed by a surety company authorized to do business in this State.\\\" \\u00a7 17-104(1). Section 17-108 in its pertinent parts defines the scope of protection under that security as follows:\\n(a) In general. \\u2014 Subject to subsection (b) of this section, a supplier may sue on payment security if the supplier:\\n(1) supplied labor or materials in the prosecution of work provided for in a contract subject to this subtitle; and\\n(2) has not been paid in full for labor or materials within 90 days after the day that the person last supplied labor or materials for which the claim is made.\\n(b) Payment owed by subcontractor. \\u2014 (1) A supplier who has a direct contractual relationship with a subcontractor or sub-subcontractor of a contractor who has provided payment security but no contractual relationship with the contractor may sue on the security if the supplier gives written notice to the contractor within 90 days after the labor or materials for which the claim is made were last supplied in prosecution of work covered by the security.\\nPutting aside for the moment the issue of whether the trial court erred in permitting the jury to determine whether appellee could sue on appellants' bond, we address the more general, and in this case, dispositive issue of whether the court articulated the proper standard for assessing a claimant's standing to sue under a Little Miller Act bond. This is an issue of pure statutory construction which is a matter for the court's resolution. See Mangum v. Md. St. Bd. of Censors, 273 Md. 176, 192-93, 328 A.2d 283 (1974) (\\\"[cjonstruing statutes in connection with applying statutory provisions to specific cases, is a large and essential part of the judicial process.\\\")\\nIn construing the meaning and scope of any statute, courts seek to ascertain and effectuate legislative intent, the most useful indicator of which is the actual statutory language. Rucker v. Comptroller of the Treasury, 315 Md. 559, 564-65, 555 A.2d 1060 (1989); Dean v. Pinder, 312 Md. 154, 161, 538 A.2d 1184 (1988). Such language is to be given its ordinary, conventional meaning, and should be read in the context of the statute's overarching goals and purposes. Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 73, 517 A.2d 730 (1986); Comptroller of the Treasury v. Fairchild Industries, Inc., 303 Md. 280, 284-87, 493 A.2d 341 (1985). Only when the statutory language is ambiguous will the courts look beyond the text to other aids of construction. Ryder Truck Lines, Inc. v. Kennedy, 296 Md. 528, 536, 463 A.2d 850 (1983); Bledsoe v. Bledsoe, 294 Md. 183, 189, 448 A.2d 353 (1982).\\nAt the heart of the instant dispute lies a fundamental determination of the import of \\u00a7 17-108, supra. A number of courts, construing language identical or similar to that of \\u00a7 17-108(b)(1), have held that this provision restricts the class of persons entitled to sue on a public works bond to those who stand in a proximate relationship with the prime contractor. See, e.g., J. W. Bateson Co., Inc. v. U.S., 434 U.S. 586, 98 S.Ct. 873, 55 L.Ed.2d 50 (1978); Clifford F. MacEvoy Co. v. U.S., 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163 (1944); U.S. v. Blount Bros. Constr. Co., 168 F.Supp. 407 (D.Md.1958) (all construing the federal Miller Act). Proponents of this interpretation thus hold that subsection (b)(1), or its equivalent, is essentially a standing requirement, designed to insulate the prime contractor from the claims of remote suppliers. The statute, under this interpretation, defines the proximate relationship as any direct contractual relationship with a \\\"subcontractor or sub-subcontractor.\\\" A \\\"subcontractor,\\\" in turn, is \\\"one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen.\\\" Clifford F. MacEvoy Co., supra, 322 U.S. at 109, 64 S.Ct. at 894.\\nOther courts hold that the statute's only restrictions on the class of potential bond claimants appear in subsection 17-108(a), which grants standing to those who have supplied labor or materials in the prosecution of work and have not been paid within 90 days of their performance. Not coincidentally, this provision mirrors the broad criteria under the mechanics' lien statute for determining whether a supplier has standing to assert a lien. See Md.Real Prop. Code Ann. \\u00a7 9-102; Evans Marble Co. v. Intnt'l Trust Co., 101 Md. 210, 60 A. 667 (1905).\\nAccording to the latter interpretation, subsection (b)(1) is merely a notice requirement for claimants who, though within the statute's protective parameters, are nevertheless remotely associated with the general contractor. See, e.g., Huddleston Concrete Co. v. Safeco Ins. Co., 186 Ga.App. 531, 368 S.E.2d 117 (1988); Peters v. Hartford Accident & Indem. Co., 377 Mass. 863, 389 N.E.2d 63 (1979); Richards & Conover Steel Co. v. Nielsons, 755 P.2d 644 (Okla.1988). As the Court explained in Huddleston Concrete Co., \\\"The purpose of the notice requirement is to protect the [general] contractor, so that he may with impunity pay subcontractors if no notice of claims by materialmen and suppliers has been filed.\\\" Huddleston Concrete Co., supra, 186 Ga.App. at 533, 368 S.E.2d 117. Cf. Dickerson Lumber Co. v. Herson, 230 Md. 487, 491, 187 A.2d 689 (1963) (\\\"The Mechanics' Lien Law seeks to protect materialmen who are not in a position to protect themselves if the owner negligently pays the contractor without first ascertaining that the materialmen have been paid\\\") (emphasis supplied; citations omitted). Indeed, as a practical matter, the general contractor's only means of learning about the existence of these claims is through formal notice.\\nWe believe that the second interpretation espoused by a number of our sister states is more consonant with the general purposes and history of our Little Miller Act. That interpretation, moreover, is in keeping with our pattern of liberally construing the Act \\\"to protect persons whose labor and materials go into government projects.\\\" Stauffer Constr. Co., Inc. v. Tate Engineering, Inc., 44 Md.App. 240, 245, 407 A.2d 1191 (1979), cert. denied, 286 Md. 753 (1980) (citation omitted). See also Montgomery County Bd. of Educ. v. Glassman Constr. Co., 245 Md. 192, 201, 225 A.2d 448 (1967); Mullan Contracting Co. v. International Business Machines Corp., 220 Md. 248, 258-59, 151 A.2d 906 (1959); Allied Building Products Corp. v. United Pacific Ins. Co., 77 Md.App. 220, 226, 549 A.2d 1163 (1988); Viscount Constr. Co., Inc. v. Dorman Elec. Supply Co., Inc., 68 Md.App. 362, 367, 511 A.2d 1102 (1986).\\nIn determining the Legislature's intent, it is useful to trace the development of Maryland's present public works bond statute. After creating the State Roads Commission in 1908, ch. 141 of the Laws of 1908, the Legislature by ch. 721 of the Acts of 1910 enacted the Little Miller Act's earliest precursor, which we shall refer to as the highway construction statute. It provided, inter alia, that:\\nIn all cases where the contract for work and materials shall be given out after competitive bidding, the successful bidder shall promptly execute a formal contract to be approved as to its form, terms and conditions by said Commission, and shall also execute and deliver to said Commission a good and sufficient bond to be approved by said Commission to the State of Maryland in not less than the amount of the contract price. In no case shall any such bond be approved or accepted unless the obligators bind themselves therein to the payment of all just debts for labor and materials incurred by the bidder in the construction and improvement of the road contracted for.\\nThe Court in American Fidelity Co. v. State, 128 Md. 50, 97 A. 12 (1916), recognized that the mischief which this statute sought to remedy arose from the inability of laborers and materialmen on public projects to secure their payment by attaching state-owned property. In the words of the Court, absent an alternative remedy, these suppliers \\\"could acquire no protection against insolvent contractors by the lien laws of this State.\\\" Id., 128 Md. at 59, 97 A. 12. Thus, by requiring the execution of a payment bond, the Legislature sought to place suppliers of labor and materials on public projects in the same secure position they would have occupied had they been engaged in a private construction contract, the only difference being the form of the available security.\\nIndeed, because a supplier's participation in a public contract was to affect only the form and not the substance of its remedy, the Court in delineating the scope of protection under the bond applied the criterion traditionally used to identify proper lienors under a private contract. A supplier would thus have standing to sue on the bond so long as it contributed \\\"labor\\\" or \\\"materials\\\" in the prosecution of the construction contract. For instance, in London & Lancashire Indem. Co. v. State, 153 Md. 308, 138 A. 231 (1927), a case closely analogous to the one at bar, the Maryland State Roads Commission awarded a contract to the Patapsco Engineering and Contracting Company (Patapsco) for the improvement of a road located in Montgomery County. In compliance with the highway construction statute, the general contractor furnished a payment bond. Patapsco also contracted with the Smoot Sand and Gravel Company (Smoot) to supply the sand and gravel necessary for the job. Smoot, in turn, engaged Frank R. Hammond (Hammond) to transport these raw materials from Smoot's yard in Washington, D.C. to the construction site in Montgomery County.\\nIn analyzing whether Hammond was entitled to recover under the bond, the Court stated that the \\\" 'manifest purpose of the statute [is] to require that labor and materials actually contributed to the construction of the public building shall be paid for and to provide security to that end.' \\\" Id., 153 Md. at 310-11, 138 A. 231 (quoting Hill v. Amer. Surety Co., 200 U.S. 197, 203, 26 S.Ct. 168, 50 L.Ed. 437 (1906)). Having concluded that Hammond contributed labor to the highway construction project, the Court held that he was entitled to the security provided by the general contractor. See State v. National Surety Co., 148 Md. 221, 128 A. 916 (1925) (applying the same test, but concluding that the lessor of a steam shovel which was used in the construction of a highway did not contribute labor or materials and consequently was not covered by the payment bond).\\nIn 1918, the General Assembly expanded the breadth of the highway construction statute's bond provision by making it applicable to all State-funded construction projects. Ch. 127, Acts of 1918. Although the language of the enactment closely resembled that of the highway construction statute, it contained an additional clause which, according to the Court in Hospital for the Women of Md. v. United States Fidelity & Guaranty Co., 177 Md. 615, 11 A.2d 457 (1940), limited the class of persons entitled to protection under the required payment bond. Specifically, the statute required prime contractors to post a bond for the \\\"payment of all just debts for labor and materials incurred, through subcontract or in any other manner, by or in behalf of the person, firm or corporation to whom such contract has been given____\\\" Md.Code Ann. (1918 Supp.) Art. 90, \\u00a7 13 (emphasis supplied).\\nIn Hospital for the Women of Md., the private owner of a hospital hired the Cummins Construction Corp. (general contractor) to expand and make certain alterations to the hospital facilities. As a condition of the contract, the general contractor executed a performance and payment bond, with United States Fidelity and Guaranty Co. as its surety. One of the conditions of the bond was couched in the precise language appearing in the State construction bond statute. It provided that the obligors \\\"shall pay all just debts for labor and materials incurred through subcontract or in any other manner, by or on behalf of the principal.\\\" With this bond posted, the general contractor engaged a subcontractor to perform work at the construction site. In turn, the subcontractor hired, but never paid, Robert S. Green, Inc., the claimant, to furnish the necessary materials for the subcontractor.\\nIn denying the claimant standing to sue on the general contractor's payment bond, the Court abandoned the analysis used by the courts under the highway construction and mechanics' lien statutes, reasoning that:\\neffect must be given to the words \\\"incurred through sub-contractors, or in any manner, by or on behalf of the principal.\\\" The \\\"by or in behalf of the principal\\\" is a restrictive term. If the meaning and intent of the bond was to cover all just debts for labor and material incurred through sub-contractors or in any other manner, as contended for by the plaintiff, the clause should have stopped there, but it added the definitely restrictive provision limiting the above to those incurred \\\"by or on behalf of the principal.\\\" These words can not be rejected as surplusage. They restrict the obligation to debts for labor and material incurred by and on behalf of the principal. The debts in the present case were contracted by the subcontractor, or by and on behalf of himself as sub-contractor, and not \\\"by or on behalf of the principal.\\\"\\nHospital for the Women of Md., supra, 177 Md. at 620, 11 A.2d 457. The Court thus held that the bond's language \\\"limit[s] the liability of the contractor and surety to the payment of obligations for labor and material used in the construction, incurred through transactions traceable to the direct authorization of the principal.\\\" Id. at 622, 11 A.2d 457 (emphasis supplied).\\nNot until 1959 did the General Assembly, by ch. 10 of the Laws of 1959, supplant Art. 90, \\u00a7 13 with the Little Miller Act. The underlying bill, recommended by the Budget and Finance Committee of the Legislative Council (Item No. 134), contained an explanatory note stating that the \\\"main purpose of the bill is to provide greater protection to sub-contractors on contracts awarded by the State____\\\" Although this statement does not expressly indicate the Legislature's intention to overturn the Court's holding in Hospital for the Women of Md. and to revive the precedents which afforded coverage coextensive with that under the mechanics' lien law, we think that this indeed was the Legislature's aim.\\nLending support for this position is Montgomery Co. Bd. of Ed. v. Glassman Constr. Co., 245 Md. 192, 225 A.2d 448 (1967), in which the Court of Appeals remarked of the Little Miller Act:\\nThere is no mechanic's lien for work done for or materials supplied to public buildings, but the bond required by the statute is intended to give substantially similar protection. The purpose of the bond, based on the statute, is to protect subcontractors and materialmen on State or other public projects where they have no lien on the work done.\\nId. at 201, 225 A.2d 448 (citations omitted).\\nSimilarly, the Court in Williams Constr. Co., Inc. v. Constr. Equip., Inc., 253 Md. 60, 67, 251 A.2d 864 (1969), founded its interpretation of the Little Miller Act's scope of protection on \\\"the symmetry which has existed for years between rights under the mechanics' lien law and rights under a public works bond.\\\" See Peerless Ins. Co. v. Prince George's County, 248 Md. 439, 442, 237 A.2d 15 (1968) (close analogy between Little Miller Act and mechanics' lien statute); Ruberoid Co. v. Glassman Constr. Co., 248 Md. 97, 106, 234 A.2d 875 (1967); Allied Building Products Corp., supra, 77 Md.App. at 226, 549 A.2d 1163.\\nIronically, we have come full circle in relying on precedents decided under the highway construction statute, e.g., London & Lancashire Indem. Co. v. State, supra, 153 Md. 308, 138 A. 231, which recognized that the legislature in enacting the payment bond statute sought not to penalize suppliers for their participation in public construction projects by depriving them of the security to which they otherwise would be entitled under a private construction project but to protect them by providing an alternative form of security.\\nWe note that this construction:\\nfurthers the public policy of ensuring security for all laborers working at a public project site, and thereby promotes the unhampered completion of such projects.\\nPeters v. Hartford Accident & Indem. Co., supra, 377 Mass, at 872, 389 N.E.2d 63. Moreover,\\n[t]he result we reach does not necessarily impose burdensome liabilities on sureties for a long chain of relationships. General contractors may refuse to deal with subcontractors who do not indemnify them against remote claims, and they may even require a bond from each contractor.\\nId. at 871, 389 N.E.2d 63. See Richards & Conover Steel v. Nielsons, supra, 755 P.2d at 647.\\nWe are mindful that our holding is at odds with a substantial line of federal authority, emanating from the Supreme Court's decision in Clifford F. MacEvoy Co. v. U.S., supra, which construes similar language in the Miller Act, 40 U.S.C. 270b, as restricting the class of claimants entitled to sue under a payment bond. See Annot., 79 A.L.R.2d 855 (1961). Our fidelity, however, is not to these decisions but to the intent of our Legislature. See Mundey v. Unsat isfied Claim & Judgment Fund Bd., 233 Md. 169, 173, 195 A.2d 720 (1963) (legislature cannot be regarded as having impliedly adopted a foreign jurisdiction's post-enactment construction of its own parallel statute). We previously have expressed our willingness to depart from federal decisions construing the federal Miller Act \\\"where the court believes the purpose of the State statute differs.\\\" General Federal Constr., Inc. v. D.R. Thomas, Inc., 52 Md.App. 700, 709, 451 A.2d 1250 (1982); see Williams Constr. Co. v. Constr. Equip., Inc., supra, 253 Md. at 67, 251 A.2d 864; State v. Nat'l Surety Co., 148 Md. 221, 128 A. 916 (1925). This is such a case.\\nSince it is undisputed that appellee supplied labor in the prosecution of Atlantic's contract with the Highway Administration, and was not paid within 90. days of its performance, it was entitled as a matter of law to recover against appellants' payment bond. Diener v. Cubbage, 259 Md. 555, 563, 270 A.2d 471 (1970). The court's error in submitting that legal issue to the jury was harmless since its verdict was in favor of appellee, and therefore, the judgment on that verdict in favor of appellee will not be disturbed.\\nJUDGMENT AFFIRMED;\\nCOSTS TO BE PAID BY THE APPELLANTS.\\n. Appellants moved for judgment after appellee had presented its evidence and at the close of all of the evidence at trial.\\n. Section 17-101(d) provides:\\nPublic body. \\u2014 \\\"Public body\\\" means:\\n(1) the State;\\n(2) a county, municipal corporation, or other political subdivision;\\n(3) a public instrumentality; or\\n(4) any governmental unit authorized to award a contract.\\n. Appellants do not contend that appellee failed to give the required notice to Atlantic.\\n. The trial court apparently adopted this interpretation of the statute upon the stipulation of the parties. We note, however, that while the courts must respect and give effect to stipulations concerning the parties' intentions and other evidential matters, C & K Lord, Inc. v. Carter, 74 Md.App. 68, 94, 536 A.2d 699 (1988), they need not abide by stipulations as to the meaning of a statute. Winter v. O'Neill, 155 Md. 624, 634, 142 A. 263 (1928); see Annot., 92 A.L.R. 663 (1934).\\n. The jury in the case sub judice, applying this standard in rendering its special verdict, characterized MSA as a subcontractor, thus entitling MSA's contractual supplier, appellee, to recovery under the bond.\\n. See Evans Marble Co. v. Intnt'l Trust Co., 101 Md. 210, 60 A. 667 (1905) (supplier who prepared stone for a materialman held to be entitled to a mechanics' lien since he furnished labor with regard to the contract). See generally Cutler & Shapiro, The Maryland Mechanics' Lien Law \\u2014 Its Scope and Effect, 28 Md.L.Rev. 225, 227-31 (1968).\\n. For the parallel case under the mechanics' lien law, see Giles & Ransome, Inc. v. First Nat'l Realty Corp., 238 Md. 203, 208 A.2d 582 (1965) (lessor of earth-moving equipment held not to be entitled to a mechanics' lien).\\n. The Court's interpretation of this contractual language presumably would apply with equal force in a statutory bond case since the language appearing in both documents was identical. Moreover, the Court in Hartford Accident & Indem. Co. v. W. & J. Knox Net & Twine Co., 150 Md. 40, 45-46, 132 A. 261 (1926), observed that \\\"there is no distinction in principle between\\\" conventional and statutory bonds.\"}"
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+"{\"id\": \"3036093\", \"name\": \"BEYOND SYSTEMS, INC. v. SECURE MEDICAL, INC., et al.\", \"name_abbreviation\": \"Beyond Systems, Inc. v. Secure Medical, Inc.\", \"decision_date\": \"2006-04-07\", \"docket_number\": \"No. 2793\", \"first_page\": \"186\", \"last_page\": \"191\", \"citations\": \"168 Md. App. 186\", \"volume\": \"168\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:31:13.231279+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BEYOND SYSTEMS, INC. v. SECURE MEDICAL, INC., et al.\", \"head_matter\": \"895 A.2d 1098\\nBEYOND SYSTEMS, INC. v. SECURE MEDICAL, INC., et al.\\nNo. 2793,\\nSept. Term, 2004.\\nCourt of Special Appeals of Maryland.\\nApril 7, 2006.\\nStephen H. Ring, Gaithersburg, for appellant.\\nAdam P. Palmer, Phoenix, AZ, for appellee.\\nPanel: HOLLANDER, JAMES R. EYLER, BARBERA, JJ.\", \"word_count\": \"1579\", \"char_count\": \"9477\", \"text\": \"JAMES R. EYLER, J.\\nMaryland Rule 2-322(a) provides that the defense of lack of jurisdiction over the person shall be made by motion to dismiss filed before the answer. The question presented is (a) when a defendant fails to raise the defense by motion prior to its answer, (b) ultimately prevails on the defense on motion for summary judgment, and (c) the plaintiff argues for the first time on appeal that the defense was waived, is the issue of defendant's waiver properly before us? We shall hold that it is or, in the alternative, that we have discretion to reach it.\\nFactual Background\\nOn December 31, 2003, Beyond Systems, Inc., appellant, filed a complaint in the Circuit Court for Montgomery County against Secure Medical, Inc., Low Cost Pharmacy, Inc., appellees, and John Doe. Appellant alleged the following.\\nAppellant is an \\\"interactive computer service provider.\\\" On \\\"hundreds of occasions during 2002 and 2003,\\\" appellees alleg edly \\\"initiated, conspired to initiate, and assisted in the initiation of commercial electronic mail messages to recipients in Maryland,\\\" including appellant. The messages \\\"advertised property, goods or services for sale or lease, and resulted in sales and the delivery of goods and/or services into Maryland.\\\"\\nAppellant alleged that appellees violated section 14-3002 of the Commercial Law Article of the Maryland Code because the electronic mail (1) \\\"used a third party's internet domain name or electronic mail address without that third party's permission,\\\" (2) \\\"contained false or misleading information about the origin or the transmission path,\\\" and (3) \\\"contained false or misleading information in the subject line.\\\" Appellant, as a recipient of the electronic mail and as an interactive computer service provider, sought statutory and actual damages.\\nOn May 20, 2004, appellees filed an answer to the complaint, which contained several affirmative defenses, including lack of jurisdiction over the person.\\nOn October 6, 2004, appellees filed a motion for summary judgment on the following grounds: (1) there was no evidence of a violation of section 14-3002, (2) the court lacked subject matter jurisdiction and jurisdiction over the person, and (3) section 14-3002 was unconstitutional. On November 12, 2004, appellant filed an opposition to the motion, with supporting affidavit. On January 10, 2005, appellees filed a supplemental memorandum in support of their motion.\\nOn January 13, 2005, the court held a hearing on the motion for summary judgment and, by order dated January 14, 2005, granted the motion on the ground of lack of jurisdiction over the person. Appellant moved for reconsideration, and after the court denied it, appellant noted this appeal.\\nDiscussion\\nOn appeal, appellant contends that appellees waived the defense of lack of jurisdiction over the person because they did not raise it by motion to dismiss before filing their answer. Appellant did not make this contention in circuit court.\\nRule 2-322(a) clearly states that the defense of lack of jurisdiction over the person is waived if not made by motion to dismiss before the answer. See Chapman v. Kamara, 356 Md. 426, 438, 739 A.2d 387 (1999)(\\\"Once a party files an answer without raising the defense of insufficient service of process, that defense ordinarily is waived.\\\").\\nThe question is whether appellant forfeited its right to rely on that waiver by not raising the issue before the trial court. The cases cited by the parties are not squarely on point. Most of the reported cases address whether a defendant can raise the defense of lack of jurisdiction over the person when it did not file a motion to dismiss on that ground prior to filing an answer. The cases hold that the defense was waived.\\nThe nature of lack of personal jurisdiction, which can be cured by waiver or consent, and the language in reported cases both suggest that, once the defense is waived, it cannot be resurrected, implying that no act by an opposing party is required in order to preserve waiver. See Chapman, 356 Md. at 438, 739 A.2d 387 (\\\"Once an answer has been duly filed, a party may not subsequently raise [the] defenses [listed in Rule 2-322(a), including personal jurisdiction] as grounds to vacate a judgment.\\\"). If that is not the case, we have the discretion to reach the waiver issue, even though it was not argued below. Rule 8-131(a).\\nThe second sentence in Rule 8-131 (a) contains the general rule, i.e., an appellate court ordinarily will not decide an issue unless raised in or decided by a trial court. The first sentence provides that subject matter jurisdiction may be raised at any time, and personal jurisdiction may be raised at any time, unless waived under Rule 2-322. The defense of lack of personal jurisdiction was waived by appellees, and they would not be able to raise the defense, for the first time, on appeal.\\nThe first sentence does not expressly address the situation before us, however, i.e., the defendant was ultimately successful on the defense, the plaintiff did not argue waiver, and the question is whether the plaintiff is prohibited from arguing defendant's waiver on appeal because it did not raise it below.\\nUnder the second sentence in Rule 8-181(a) and Maryland case law, we have the jurisdictional authority to decide an issue even though it was not brought to the attention of the circuit court. See, e.g., Moosavi v. State, 355 Md. 651, 736 A.2d 285 (1999); Fisher v. State, 367 Md. 218, 786 A.2d 706 (2001); Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 768 A.2d 620 (2001); County Council of Prince George's County v. Offen, 334 Md. 499, 639 A.2d 1070 (1994); Atlantic Mutual Insurance Co. v. Kenney, 323 Md. 116, 591 A.2d 507 (1991).\\nIn Jones v. State, 379 Md. 704, 843 A.2d 778 (2004), the Court of Appeals noted that \\\"[t]he second sentence of Rule 8-131(a) sets forth the general proposition that an appellate court ordinarily will not consider an issue that was not raised or decided by the trial court.\\\" Id. at 712, 843 A.2d 778. The Court also concluded, however, that the prohibition is not absolute, explaining that \\\"an appellate court has discretion to excuse a waiver or procedural default and to consider an issue even though it was not properly raised or preserved by a party.\\\" Id. at 713, 843 A.2d 778. The Court continued by recognizing that \\\"there is no fixed formula for the determination of when discretion should be exercised, and there are no bright line rules to conclude that discretion has been abused.\\\" Id. The Court set forth two questions that an appellate court should ask itself when deciding to exercise its discretion: (1) whether the exercise of its discretion will work unfair prejudice to either of the parties and (2) whether the exercise of its discretion will promote the orderly administration of justice. Id. at 714-15, 843 A.2d 778.\\nThe Court of Appeals' application of this standard in General Motors Corp. v. Seay, 388 Md. 341, 879 A.2d 1049 (2005), also sheds light on the question presented in this case. In Seay, the question was \\\"whether the issue of GM's procedural compliance with Maryland Rule 2-532(a) was properly before the Court of Special Appeals given that Seay raised the issue for the first time on appeal.\\\" Id. at 361, 879 A.2d 1049. In that case, General Motors argued that Seay's failure to raise the procedural issue in the trial court resulted in a waiver of the issue on appeal. Seay conceded that his trial counsel did not raise the issue of GM's procedural non-compliance in his opposition to the motion at the trial level; instead, counsel opposed the motion on its merits. Seay maintained, however, that because the Court of Special Appeals addressed the issue, the question for the Court of Appeals was whether the intermediate appellate court had abused its discretion in doing so. Id. The Court of Appeals held\\nthat the Court of Special Appeals did not abuse its discretion when it decided the issue of whether the motion for JNOV was properly before the trial court. The question is purely a matter of rule interpretation and does not depend on the presentation of additional evidence. Moreover, had the procedural error been raised at the trial level, the proper result would have been to deny the motion irrespective of any efforts to correct the error. Simply put, the error is not correctable. GM [appellant] was not, therefore, prejudiced by the exercise of discretion to address the unpreserved ground for objecting to GM's motion.\\nId. at 364, 879 A.2d 1049.\\nSimilarly, in this case, we shall exercise our discretion under Rule 8\\u2014131(a) and reach the question of defendant's waiver. Because the defense was clearly waived, we reverse the judgment and remand for further proceedings.\\nAPPELLANT'S AMENDED MOTION FOR EXTENSION OF TIME FOR FILING REPLY BRIEF GRANTED. JUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.\\n. John Doe is not a real person, and there was no service of process. The circuit court entered an order under rule 2-602(b), apparently in an abundance of caution, declaring the judgment in favor of appellees final.\"}"
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+"{\"id\": \"32337\", \"name\": \"William H. PHILLIPS v. ALLSTATE INDEMNITY COMPANY\", \"name_abbreviation\": \"Phillips v. Allstate Indemnity Co.\", \"decision_date\": \"2004-05-05\", \"docket_number\": \"No. 491\", \"first_page\": \"729\", \"last_page\": \"748\", \"citations\": \"156 Md. App. 729\", \"volume\": \"156\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:25:39.170685+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William H. PHILLIPS v. ALLSTATE INDEMNITY COMPANY.\", \"head_matter\": \"848 A.2d 681\\nWilliam H. PHILLIPS v. ALLSTATE INDEMNITY COMPANY.\\nNo. 491,\\nSept. Term, 2003.\\nCourt of Special Appeals of Maryland.\\nMay 5, 2004.\\nMaximillian F. Van Orden, Bowie, for appellant.\\nJeffrey L. Harding (Sasscer, Clagett & Bucher, on the brief), Upper Marlboro, for appellee.\\nPanel: KENNEY, GREENE, CHARLES E. MOYLAN, JR. (Ret\\u2019d, specially assigned), JJ.\\nGreene, J., now a member of the Court of Appeals of Maryland, participated in the conference and decision of this case while a member of this Court; and participated in the adoption of this opinion as a member of this Court by special designation.\", \"word_count\": \"4921\", \"char_count\": \"30107\", \"text\": \"KENNEY, Judge.\\nWilliam H. Phillips (\\\"Phillips\\\") appeals from an order of the Circuit Court for Prince George's County granting summary judgment in favor of Allstate Indemnity Company (\\\"Allstate\\\"). On appeal, Phillips asks three questions, which we have consolidated into one:\\nDid the circuit court err as a matter of law in granting summary judgment in favor of Allstate?\\nFor the reasons that follow, we shall remand the case to the circuit court for the entry of a declaratory judgment in conformity with this opinion.\\nFACTUAL AND PROCEDURAL HISTORY\\nThe summary judgment motions, deposition testimony, and interrogatories provided the following information. On October 30, 2000, Phillips purchased a 2001 Yamaha motorcycle from Heyser Motorcycle in Laurel, Maryland for $12,054.66. Phillips obtained an insurance policy from Allstate that included protection against loss of the motorcycle. Sometime between the evening hours of November 8 and the morning hours of November 9, 2000, the motorcycle allegedly was stolen from a parking space in front of Phillips' apartment. On November 9, 2000, Phillips notified both the Montgomery County Police Department and Allstate of the theft.\\nOn November 19, 2000, Phillips provided John Cadigan, an employee of Allstate, with a recorded statement. In the statement, Phillips stated that he worked at a car dealership trading as Royal Auto under the supervision of Mr. Poe and earned approximately $3,000 per month. He earned additional money by gambling in Atlantic City and \\\"detailing\\\" automobiles. His friend, Mike Stevens, had loaned him some of the money to purchase the motorcycle. When Allstate contacted Royal Auto to verify the information, it learned that Phillips was neither a current nor past employee and there was no supervisor by the name of Mr. Poe.\\nOn November 24, 2000, Phillips completed an \\\"Affidavit of Automobile Total Theft\\\" form, as required by the policy. He answered four of the questions as follows:\\n4. Are you employed? No.\\n5. Are you retired? N/A\\n6. What type of work do you do? N/A\\n10. What type of business are you in? N/A\\nHe signed the affidavit, attesting that he had read, answered, and understood all of the questions and that all of the information was true and correct.\\nBecause of inconsistencies in the information provided by Phillips, Allstate requested that he submit to an examination under oath (\\\"EUO\\\"). At the EUO on January 11, 2001, Allstate's attorney did not ask Phillips any questions because, in prior discussions, Phillips' attorney had indicated that Phillips would not provide any information about his finances. When Phillips confirmed that he would not answer any financial questions, Allstate's attorney responded: \\\"I'm not going to conduct the [EUO] because I feel that the refusal to answer those questions, for whatever reason, would be deemed by Allstate and myself as lack of cooperation in this claim, resulting in a denial.\\\"\\nPhillips' attorney stated:\\nOur position, given the particular and unique circumstances of this case, is, it would not be a lack of cooperation or a violation of the requirements of the policy.\\nThe particular reason is that this motorcycle was paid for in cash. It's not the most typical, if there is such a thing, case, where there may be suspicion that because there had been arrearages in payments that someone is simply trying to have a vehicle disappear for purposes of getting out from underneath of a debt that they owe.\\nTherefore, the source of income for the payment of this motorcycle, in our position, is entirely irrelevant.\\nThere's virtually no scenario that would suggest, in my perception of this, at least, that this would be a fraudulent claim, since the motorcycle's paid for in cash.\\n#\\nIn addition, this is a case where the motorcycle disappeared at the scene, it's not a collision type of circumstance. But he is willing\\u2014to be clear on the record, he is here and will be happy to testify regarding the circumstances of the last time he saw the motorcycle, what he had done with the motorcycle, how many miles he believes were on the motorcycle at the time.\\nSo, for those reasons, we believe that, in this particular case, exploring the financial component of his life is not relevant.... If you wanted to explore the circumstances of what he knows about the motorcycle and how it disappeared, that's fine, and we can do that, it wouldn't take that long to do it.\\nBut, if you believe that by not answering the financial questions, that it defeats the purpose of this procedure, then that's certainly something that you can decide.\\nAllstate's attorney responded:\\nAnd, just to briefly respond to that, for the record, it is my opinion as the attorney conducting the EUO, that the financial background information, in any case, is highly relevant. Financial background often in these cases produces a motive or a lack thereof.\\nYou are advising your client and you are making a conclusion that based on what you know, it's not relevant. And, I am not permitted to objectively make that conclusion without asking those questions. And those are questions that I ask in every examination that I've done.\\nAnd I think that the way I read the case law, that I'm allowed to do that because that is relevant, for example, it is perhaps motive to have the vehicle stolen. It might be a motive that your client is charged with a crime, for example, and he needs money to pay for a lawyer.\\nSo, there's any number of reasons that it is relevant. And I think I'm not permitted, in doing an objective investigation, to draw those conclusions that you've drawn for the record.\\nIn a letter dated January 11, 2001, Allstate denied Phillips' claim, based on lack of cooperation.\\nOn July 20, 2001, Phillips filed a complaint for breach of contract, which was amended in March 2003, adding an additional count for declaratory judgment. At a deposition on March 10, 2003, Phillips testified that, in the recorded statement, he had not provided truthful information about his employment and his friend, Mike Stevens. Phillips replied, \\\"I plead the 5th Amendment,\\\" when asked the following questions concerning his income and expenses:\\n\\u2014 How do you pay for college?\\n\\u2014 How do you pay [your monthly rent]?\\n\\u2014 How do you pay your monthly expenses?\\n\\u2014- How do you pay your yearly premiums?\\n\\u2014 What is your source of income?\\n\\u2014 Where did you get the money to pay the premium [on your Cadillac Eldorado]?\\n\\u2014 Where do you get the money to deposit into [your] checking account?\\n\\u2014 Where did you get the money to pay the premium for that?\\n\\u2014 How did you get the money to pay for [the motorcycle]?\\n\\u2014 Why did you misrepresent the information [about your employment during the recorded statement]?\\nAllstate filed a motion for summary judgment, arguing that Phillips could not pursue a claim \\\"after making material misrepresentations, failing to cooperate . during an EUO, and refusing to answer relevant questions during discovery.\\\" With respect to the alleged failure to cooperate, Phillips argued that: (1) he did not have a \\\"duty\\\" to provide the recorded statement; (2) he recanted the misrepresentations; (3) the misrepresentations were not material; (4) he \\\"submitted\\\" to the EUO, but was not required under the insurance policy to answer every question; and (5) there was no evidence that Allstate had been prejudiced. In essence, Phillips contended that he had substantially complied with his obligations under the insurance policy. At the conclusion of the motions hearing, and without explanation, the circuit court granted judgment for Allstate. This timely appeal followed.\\nDECLARATORY JUDGMENT\\nPhillips filed a complaint for breach of contract, which was amended, adding an additional count for declaratory judgment. The circuit court granted summary judgment in favor of Allstate, but did not enter a declaratory judgment. Therefore, we must remand the case to the circuit court to enter a judgment declaring the rights of the parties not inconsistent with this opinion. We explain.\\nThe Maryland Uniform Declaratory Judgments Act (\\\"Act\\\"), Md.Code (1974, 2002 Repl.Vol.), \\u00a7 3-401 et seq. of the Courts & Judicial Proceedings Article (\\\"CJ\\\"), is \\\"remedial\\\" and its purpose is \\\"to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.\\\" CJ \\u00a7 3-402. The Act further provides:\\nExcept for the District Court, a court of record within its jurisdiction may declare rights, status, and other legal relations whether or not further relief is or could be claimed. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for.\\nCJ \\u00a7 3^03(a).\\nWhen it will serve to terminate the uncertainty or controversy at issue, a court may grant a declaratory judgment if:\\n(1) An actual controversy exists between contending parties;\\n(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or\\n(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.\\nCJ \\u00a7 3-409(a).\\n\\\"The declaration may be affirmative or negative in form and effect and has the force and effect of a final judgment or decree.\\\" CJ \\u00a7 3-411; see Universal Underwriters Ins. Co. v. Lowe, 135 Md.App. 122, 130-31, n. 6, 761 A.2d 997 (2000) (\\\" 'While a declaratory decree need not be in any particular form, it must pass upon and adjudicate the issues raised in the proceeding, to the end that the rights of the parties are dearly delineated and the controversy terminated.' \\\") (quoting Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 29, 320 A.2d 266 (1974)). In a declaratory judgment action in which summary judgment was sought, we explained:\\nSummary judgment is appropriate in a declaratory action, although it is \\\" 'the exception rather than the rule.' \\\" Nationwide Mut. Ins. Co. v. Scherr, 101 Md.App. 690, 695, 647 A.2d 1297 (1994), cert. denied, 337 Md. 214, 652 A.2d 670 (1995) (quoting Loewenthal v. Security Ins. Co., 50 Md.App. 112, 117, 436 A.2d 493 (1981) (holding that in an action for declaratory judgment concerning the correct interpretation of an insurance contract, \\\"summary judgment may be warranted where there is no dispute as to the terms of an insurance contract but only as to their meaning\\\")).\\nMcBriety v. Commissioners of Cambridge, 127 Md.App. 59, 65-66, 732 A.2d 296 (1999). Declaratory proceedings, however, are \\\" 'not intended to and should not serve as a substitute for appellate review or as a belated appeal.' \\\" Wolfe v. Anne Arundel County, 135 Md.App. 1, 25, 761 A.2d 935 (2000) (quoting Fertitta v. Brown, 252 Md. 594, 599-600, 251 A.2d 212 (1969) (emphasis in original)), aff'd, 374 Md. 20, 821 A.2d 52 (2003).\\n\\\"While it is permissible for trial courts to resolve matters of law by summary judgment in declaratory judgment actions, the trial court must still declare the rights of the parties.\\\" Megonnell v. United Services Auto. Ass'n, 368 Md. 633, 642, 796 A.2d 758 (2002). In Harford Mut. Ins. Co. v. Woodfin Equities Corp., 344 Md. 399, 414, 687 A.2d 652 (1997) (internal citations omitted), the Court of Appeals stated:\\nThis Court has reiterated time after time that, when a declaratory judgment action is brought, and the controversy is appropriate for resolution by declaratory judgment, \\\"the trial court must render a declaratory judgment.\\\" \\\"[W]here a party requests a declaratory judgment, it is error for a trial court to dispose of the case simply with oral rulings and a grant of . judgment in favor of the prevailing party.\\\"\\nThe fact that the side which requested the declaratory judgment did not prevail in the circuit court does not render a written declaration of the parties' rights unnecessary. As this Court stated many years ago, \\\"whether a declaratory judgment action is decided for or against the plaintiff, there should be a declaration in the judgment or decree defining the rights of the parties under the issues made.\\\"\\nBecause the circuit court did not declare the rights of the parties, we shall remand this case to the circuit court to enter a judgment declaring the rights of the parties not inconsistent with this opinion. Nevertheless, we will address the merits of the controversy. See Bushey v. Northern Assur. Co. of Am., 362 Md. 626, 651, 766 A.2d 598 (2001) (finding that the Court of Appeals \\\"may, in its discretion, review the merits of the controversy and remand for the entry of an appropriate declaratory judgment by the circuit court\\\"); Maryland Ass'n of HMO's v. Health Servs. Cost Review Comm'n, 356 Md. 581, 604, 741 A.2d 483 (1999) (requiring on remand that the circuit court enter a judgment which included a declaration of the rights of the parties). But see Woodfin, supra, 344 at 415, 687 A.2d 652 (remanding the case without reaching the merits of insurance policy coverage issues).\\nDISCUSSION\\nPhillips argues that the circuit court erroneously granted summary judgment because: (1) he was entitled to invoke his Fifth Amendment privilege against self-incrimination during the deposition; (2) he did not fail to cooperate during the EUO and his alleged lack of cooperation did not result in actual prejudice to Allstate; and (3) the misrepresentations were not material.\\nSTANDARD OF REVIEW\\nWe review a trial court's grant of summary judgment de novo, Remsburg v. Montgomery, 376 Md. 568, 579, 831 A.2d 18 (2003), determining whether the trial court was legally correct, Williams v. Baltimore, 359 Md. 101, 114, 753 A.2d 41 (2000) (internal citations omitted) (quoting Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 42-43, 656 A.2d 307 (1995)). If the trial court does not state its reasons for granting the motion, we will affirm the judgment so long as the record \\\"discloses it was correct in so doing.\\\" Casey Development Corp. v. Montgomery County, 212 Md. 138, 145, 129 A.2d 63 (1957).\\nWe determine first, however, whether a genuine dispute of material fact exists, \\\"and only where such dispute is absent will we proceed to review determinations of law.\\\" Remsburg, 376 Md. at 579, 831 A.2d 18. In so doing, \\\"we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party.\\\" Remsburg, 376 Md. at 579-80, 831 A.2d 18. If there is no \\\"genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and it is shown that the movant is entitled to judgment, the entry of summary judgment is proper.\\\" Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 8, 327 A.2d 502 (1974) (citing Selected Risks Ins. Co. v. Willis, 266 Md. 674, 296 A.2d 424 (1972)).\\nThe Insurance Policy\\nPhillips obtained an \\\"Indemnity Motorcycle Insurance Policy\\\" from Allstate. The policy contains general recitals and four separate \\\"Parts\\\" that address, respectively, liability insurance, medical payment coverage, uninsured motorists' insurance, and protection against loss. The general recitals provide that the policy \\\"is a legal contract between you and us.\\\" The policy is effective only \\\"during the policy period\\\" and \\\"applies to losses to the cycle, accidents and occurrences within the United States____\\\" With respect to fraud or misrepresentation, Allstate does\\nnot provide coverage for any loss which occurs in connection with any material misrepresentation, fraud, or concealment of material facts, or if any material misrepresentation or omission was made on your insurance application.\\n\\\"Part 4\\\" of the policy, which is captioned \\\"Protection Against Loss To The Motorcycle,\\\" provides: \\\"Allstate will pay for direct and accidental loss to your insured cycle not caused by collision. Loss caused by . . theft . is covered.\\\" In the event of a covered loss, the policy provides:\\n1. As soon as possible, any person making claim must give us written proof of loss. It must include all details reasonably required by us. We have the right to inspect the damaged property. We may require any person making claim to file with us a sworn proof of loss. We may also require that person to submit to examinations under oath.\\n2. Protect the cycle from further loss. We will pay reasonable expenses to guard against further loss. If you don't protect the cycle, further loss is not covered.\\n3. Report all theft losses promptly to the police.\\nNo person \\\"may sue [Allstate] under this coverage unless there is full compliance with all the policy terms.\\\"\\nThe Fifth Amendment\\nInvoking his Fifth Amendment privilege against self-incrimination, Phillips refused to answer ten questions during the deposition. At the summary judgment hearing, Allstate argued that judgment was proper because Phillips' refusal prevented a full investigation into the alleged theft.\\nThe Fifth Amendment privilege against self-incrimination may be asserted by a party or witness in civil proceedings, \\\"not only at trial, but at the discovery stage as well.\\\" Kramer v. Levitt, 79 Md.App. 575, 582, 558 A.2d 760 (1989). On the other hand, a party may not testify at trial about any matters in which the privilege was asserted. Faith v. Keefer, 127 Md.App. 706, 724, 786 A.2d 422 (1999). Moreover, a party may not \\\" 'use this privilege as a means to hide witnesses [or other relevant evidence] until trial.' \\\" Id. (quoting Kramer, 79 Md.App. at 589, 558 A.2d 760).\\nIf information about his finances could have resulted in a criminal prosecution, Phillips was entitled to invoke his Fifth Amendment privilege against self-incrimination. Invocation of that privilege would not in itself provide the basis upon which summary judgment could be granted prior to trial.\\nCooperation and Actual Prejudice\\nPhillips argues that he did not fail to cooperate by refusing to answer questions about his finances during the EUO. In his view, the insurance policy only requires that he \\\"submit\\\" to an EUO; he is not required to answer every question. Phillips also contends that his alleged lack of cooperation did not result in actual prejudice to Allstate.\\nAllstate denied coverage because of Phillips' lack of cooperation arising from his refusal to answer questions about his finances during the EUO. Unlike the other \\\"parts\\\" of the policy at issue in this case, the section addressing coverage for theft of the motorcycle did not contain an express general cooperation clause, but, instead, required that an insured \\\"must do\\\" three things in the event of a loss, including \\\"submit[ting] to examinations under oath.\\\"\\nWe have not been directed to, nor have we found, any Maryland cases that discuss the scope of an EUO and whether an insured's failure to answer questions is a failure to cooperate when a policy does not contain an express cooperation clause. Nevertheless, we are persuaded that, under the circumstances of this case, appellant's refusal to answer relevant, material questions during the required EUO was a breach of the insurance contract and, in effect, a failure to cooperate. Therefore, Allstate would be permitted to disclaim coverage without a showing of actual prejudice. We explain.\\nGenerally, during an EUO, an insurer is \\\"entitled to conduct a searching examination, though all questions should be confined to matters relevant and material to the loss.\\\" 13 Couch on Insurance \\u00a7 196:11, p. 196-20 (3d ed.2003). An insured is not required to answer immaterial questions, and the materiality of a question \\\"is determined in the context of the insured's claim and the insurer's investigation.\\\" Id. at 196-21. In a theft case, the insurer may ask questions \\\"relating to possible motives for fraud, such as prior loss or claim history, and financial circumstances of the insureds.\\\" Id.\\nIn Powell v. United States Fid. & Guar. Co., 88 F.3d 271 (4th Cir.1996), the insureds' home was destroyed by fire. Under their homeowners' insurance policy, the insureds were required to \\\"submit to questions under oath and sign and swear to them.\\\" Powell, 88 F.3d at 272. During the EUO, the insureds refused to answer several questions and \\\"to turn over financial and other documents,\\\" claiming that an EUO did not permit the insurer to \\\"delve into financial or other information relating to the [insureds'] possible motives to intentionally set the fire . . but . [was] instead limited . . to an examination relating to the existence and extent of loss under the policy.\\\" Id. The United States Court of Appeals for the Fourth Circuit disagreed, stating that an EUO \\\"encompasses investigation into possible motives for suspected fraud.\\\" Id. at 273. The court cited 5A John A. Appleman & Jean Appleman, Insurance Law & Practice \\u00a7 3522, p. 561 (1970), which provided that an EUO \\\"is not restricted to amount of loss, but the insurer has the right to examine the insured and his witnesses as to any matter material to the insurer's liability and the extent thereof.\\\" Id.\\nThe materiality of questions asked during an EUO has been addressed by the United States Supreme Court. In Ins. Companies v. Weides, 81 U.S. 375, 14 Wall. 375, 20 L.Ed. 894 (1872), the insureds submitted to an EUO, but refused to answer questions \\\"respecting the amounts for which they had made settlements with other insuring companies.\\\" Id. at 381. At trial, the insurer requested that the trial court instruct the jury that if it believed that the insureds had refused to answer any questions \\\"by which the [insurer] could fairly estimate or reasonably infer [the insureds'] real loss in the insured property,\\\" then the \\\"verdict must be for\\\" the insurer. Id. at 381-82. The Supreme Court found no error in the trial court's refusal to give the instruction, stating:\\nOf course, it is to be understood that the examination contemplated relates to matters pertinent to the loss. In these cases, the [insureds] did submit to an examination, but declined to answer questions respecting the amounts for which they had made settlements with other insuring companies. We are unable to perceive that the questions proposed had any legitimate bearing upon the inquiry, what was the actual loss sustained in consequence of the fire. If the [insureds] had claims upon other insurers, and compromised with some of them for less than the sums insured, it is not a just inference that their claim against these insurers was exaggerated. A compromise proposed or accepted is not evidence of an admission of the amount of the debt.\\nId. at 881. Thus, we conclude that the scope of an EUO properly includes questions that are relevant and material to an insurer's liability for a loss and the extent of that loss. An insured's failure to answer such questions constitutes a failure to comply with a policy requirement to submit to an EUO.\\nIn this case, Phillips' motorcycle allegedly was stolen approximately ten days after it had been purchased. During a statement recorded by Allstate, Phillips lied about his employment and how he had acquired the money to purchase the motorcycle. Once Phillips put his financial circumstances in question, further questions related to his finances became material to a possible motive to submit a fraudulent claim. Although Phillips recanted the statements about his employment shortly thereafter, he refused to answer any questions at the EUO relating to his finances. This was sufficient to generate a concern that Phillips' claim might be fraudulent based on a need for money. Under these circumstances, questions relating to Phillips' financial circumstances clearly were relevant and material to possible motives for fraud, and his refusal to answer the questions violated the requirements of the policy and constituted a failure to cooperate.\\nAlthough materiality is generally a question of fact, we are persuaded that, under the circumstances of this case, it could be determined, as a matter of law, that the questions that Phillips refused to answer during the EUO were relevant and material. Because of Phillips' misrepresentations about his employment and method of paying for the motorcycle, coupled with the proximity in time between the purchase and the theft of the motorcycle, finances clearly were relevant. Moreover, because Phillips refused to answer all questions relating to his finances, this was not a case requiring a trier of fact to weigh the materiality of a particular question or questions. Under these circumstances, the issue may be resolved as a matter of law.\\nIn the alternative, Phillips argues that even if he failed to cooperate, Allstate is not excused from coverage absent a showing of actual prejudice, as required by Md.Code (1995, 2002 RepLVol.), \\u00a7 19-110 of the Insurance Article (\\\"Ins.\\\"). In Maryland, an insurer may not disclaim coverage on a liability insurance policy on the basis that an insured breached the policy by failing to cooperate or by not giving required notice, unless the insurer establishes that the breach resulted in actual prejudice. Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co., 363 Md. 106, 122, 767 A.2d 831 (2001). This concept has been codified at Ins. \\u00a7 19-110, which provides:\\nAn insurer may disclaim coverage on a liability insurance policy on the ground that the insured . has breached the policy by failing to cooperate with the insurer or by not giving the insurer required notice only if the insurer establishes by a preponderance of the evidence that the lack of cooperation or notice has resulted in actual prejudice to the insurer.\\nIn substance, Ins. \\u00a7 19-110 \\\"makes policy provisions requiring . cooperation with the insurer covenants and not conditions.\\\" St. Paul Fire & Marine Ins. Co. v. House, 315 Md. 328, 332, 554 A.2d 404 (1989).\\nBy its plain language, Ins. \\u00a7 19-110 applies to a \\\"liability insurance policy.\\\" A liability insurance policy is \\\"generally issued for the benefit of third parties who are injured and have a claim against a tortfeasor.\\\" 7 Couch on Insurance \\u00a7 104:8 (3d ed.2003). Indeed, in the Maryland cases that address Ins. \\u00a7 19-110, the issue has been whether an insurer could disclaim coverage and not pay benefits to a third party when the insured either failed to cooperate or to give timely notice. See Allstate, supra, 363 Md. 106, 767 A.2d 831 (insurer excused from providing liability coverage in a case involving an automobile accident because insured failed to cooperate); Sherwood Brands v. Hartford Accident & Indem. Co., 347 Md. 32, 698 A.2d 1078 (1997) (involving a liability insurance policy in an unfair and deceptive trade practices case); St. Paul Fire & Marine Ins. Co., supra, 315 Md. 328, 554 A.2d 404 (involving liability insurance in a medical malpractice case); Home Indem. Co. v. Walker, 260 Md. 684, 273 A.2d 429 (1971) (insurer not excused from coverage because it failed to establish actual prejudice from insured's alleged failure to give timely notice of a suit arising out of an automobile accident); Travelers Ins. Co. v. Godsey, 260 Md. 669, 273 A.2d 431 (1971) (liability insurance policy in a case involving an automobile accident); Warren v. Hardware Dealers Mut. Fire Ins. Co., 244 Md. 471, 224 A.2d 271 (1966) (declaratory judgment was premature in a motor tort case where insurer had not proven prejudice arising from insured's alleged lack of cooperation).\\nThere was no third-party claim in this case. Therefore, Ins. \\u00a7 19-110 was not applicable.\\nMaterial Misrepresentations\\nUnder the policy, Allstate will not provide coverage for any loss \\\"which occurs in connection with any material misrepresentation . of material facts.... \\\" Phillips contends that the misrepresentations he made during the recorded statement were not material. Generally, whether a statement is false and material is a question of fact for the jury. See Peoples Life Ins. Co. v. Jerrell, 271 Md. 536, 538, 318 A.2d 519 (1974). When, however, the evidence is \\\"clear and convincing or uncontradicted,\\\" a court may rule as a matter of law. Id.\\nIt was undisputed that Phillips, in his recorded statement, lied about his employment and how he had acquired the money to purchase the motorcycle. Because of that information, Allstate suspected that Phillips may have submitted a fraudulent claim. The misrepresentations were clearly material in this case because, as we have discussed above, they related to the validity of Phillips' claim.\\nCONCLUSION\\nIn summary, Phillips' invocation of the 5th Amendment privilege against self incrimination would not in itself provide the grounds upon which summary judgment could be granted prior to trial. However, under the facts and circumstances of this case, Phillips' refusal to answer questions about his finan cial circumstances during the EUO violated the terms of the policy and constituted a failure to cooperate. The circuit court did not err by granting summary judgment, but a declaration of the rights of the parties is required.\\nJUDGMENT AFFIRMED. CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY FOR ENTRY OF JUDGMENT IN ACCORDANCE WITH THIS OPINION.\\nCOSTS TO BE PAID BY APPELLANT.\\n. The three other \\\"Parts\\\" of the policy contain \\\"Assistance and Cooperation\\\" clauses that state, in part: \\\"At our request, an insured person will . cooperate with us and assist us in any matter concerning a claim or suit....\\\"\\n. Maryland cases that address breaches arising out of a failure to cooperate are generally premised upon a cooperation clause in a policy. See Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co., 363 Md. 106, 108, 767 A.2d 831 (2001): Roussos v. Allstate Ins. Co., 104 Md.App. 80, 84, 655 A.2d 40 (1995).\"}"
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+"{\"id\": \"3713563\", \"name\": \"SMITHFIELD PACKING COMPANY, INC. v. Ransom EVELY et al.\", \"name_abbreviation\": \"Smithfield Packing Co. v. Evely\", \"decision_date\": \"2006-05-01\", \"docket_number\": \"No. 806\", \"first_page\": \"578\", \"last_page\": \"608\", \"citations\": \"169 Md. App. 578\", \"volume\": \"169\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:49:01.808234+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SMITHFIELD PACKING COMPANY, INC. v. Ransom EVELY et al.\", \"head_matter\": \"905 A.2d 845\\nSMITHFIELD PACKING COMPANY, INC. v. Ransom EVELY et al.\\nNo. 806,\\nSept. Term, 2005.\\nCourt of Special Appeals of Maryland.\\nMay 1, 2006.\\nReconsideration Denied Sept. 22, 2006.\\nE. Duncan Getchell, Jr. (Amy M. Pocklington, Erin M. Sine, McGuire Woods LLP, on brief), Richmond, VA, Robert R. Niccolini, on brief, Baltimore, Steven B. Schwartzman, Hodes, Ulman, Pessin & Katz, PA, on brief, Towson, for appellant.\\nDaniel S. Kozma, Keith Watters, on brief, Washington, DC, for appellee.\\nPanel DAVIS, ADKINS and KRAUSER, JJ.\", \"word_count\": \"9254\", \"char_count\": \"55508\", \"text\": \"DAVIS, J.\\nAppellanVCross-Appellee, Smithfield Packing Company, Inc., appeals from a verdict rendered by a jury in the Circuit Court for Prince George's County, on its claim of malicious prosecution, in favor of appellee/cross-appellant, Kenneth Moore. The jury awarded Moore $560,523 in compensatory damages and $1,000,000 in punitive damages. The compensatory damage award included $52,947 in lost wages and $2,971 in interest on lost wages. The balance of the award was for non-economic compensatory damages. The court granted a remittitur reducing Moore's non-economic compensatory damages award to $304,605 and his punitive damages award to $200,000. The court granted appellant's motion for Judgment Notwithstanding the Verdict (JNOV) on the jury award of lost wages and interest on lost wages. Appellees/cross-appellants (hereinafter \\\"Evely\\\" and \\\"Moore\\\") filed a cross appeal from the trial court's order granting appellant's motion for JNOV on the jury's award of lost wages, Moore and Evely's claim for abusive discharge, and the remittitur reducing the compensatory and punitive damages award.\\nThe appellees filed a four count complaint on June 5, 2002 against appellant alleging malicious prosecution (Count 1), defamation (Count II), abusive discharge (Count III), and intentional infliction of emotional distress (Count IV). Appellant, on July 29, 2002, filed a motion to dismiss Counts II, III, and IV; the court granted the motion as to Count II, but denied it as to counts III and IV. On March 7, 2003, appellant filed a motion for summary judgment on the three remaining counts, which was denied on April 24, 2003. The case proceeded to trial on June 23, 2003.\\nFollowing a four-day trial, on June 26, 2003, the jury returned verdicts in favor of Evely and Moore. The jury found for Evely on Counts III and IV of the complaint, awarding damages in the amount of $308,716, and for Moore on Counts I, III, and IV and awarded damages in the amount of $488,601. The trial court refused to submit the issue of punitive damages to the jury because appellees were unable to prove the financial condition of appellant, pursuant to this Court's decision in Fraidin v. Weitzman, 93 Md.App. 168, 611 A.2d 1046 (1992). Appellees filed a post-trial motion, requesting a new trial on the issue of punitive damages, while appellant submitted a post-trial motion for JNOV as to all three counts of the complaint.\\nA hearing was held on the post-trial motions on April 23, 2004. The trial court granted appellant's motion for JNOV as to counts III and IV for both parties, ending the litigation with respect to Evely; however, it denied the motion on Moore's verdict for malicious prosecution. On June 8, 2004, the court issued an Order granting Moore a new trial on Count I for malicious prosecution on the underlying tort claim and the claim for punitive damages. In its order, the court states:\\nThe Court has reviewed the Issue of the Malicious Prosecution Count and re-reviewed the testimony concerning the March 5th encounter with Moore. The Court did not comply with Montgomery Ward v. Wilson, 339 Md. 701, 664 A.2d 916 (1995), frankly because the Court was unaware of this requirement and neither counsel made such a suggestion. In essence, it is incumbent upon the Court in a malicious prosecution case, where the issue of probable cause or lack thereof is disputed to outline for the jury the various contentions and instruct the jury as to what constitutes and does not constitute probable cause. After trial the Court is now aware of the wisdom behind the rule. Post-Trial the Court must now attempt to piece together what the jury could have concluded from the various factual contentions. The Court frankly would be in the position of guessing and does not believe that justice would be served. Accordingly, the Court will grant a new trial to Moore with respect to the issue of Malicious Prosecution both as to the underlying tort and any damages purportedly sustained.\\nThe court granted the motion for a new trial on the issue of punitive damages because post-trial, but prior to ruling on the motions, the Court of Appeals decided Darcars Motors of Silver Springs, Inc. v. Borzym, 379 Md. 249, 841 A.2d 828 (2004), which the court found effectively overruled Fraidin, supra, and permitted the issue of punitive damages to be decided by a jury, without first being presented evidence concerning the financial condition of the defendant.\\nIn the second trial, which was held on November 8-10, 2004, the jury found in favor of Moore. On November 29, 2004, appellant filed a motion for JNOV, which was opposed by appellee and a hearing was held on March 22, 2005. The court granted the motion for JNOV only as to Moore's award of lost wages, in the amount of $52,947 and interest in the amount of $2,971 and remitted and reduced the compensatory damage and punitive damage awards as stated, supra. The court reserved entering its final order to permit the parties to attempt to resolve the dispute through Alternative Dispute Resolution (ADR) and pending Moore's acceptance of the remittance. Appellee filed a motion for reconsideration of the court's June 8, 2004 grant of appellant's motion for JNOV as to the abusive discharge claims. The court denied the motion for reconsideration on May 16, 2005. Moore accepted the remittance and the court entered a final judgment in the case.\\nAppellant filed this timely appeal, presenting four issues for our review, which we quote:\\n1. Whether Moore established that Smithfield Packing instituted or continued criminal proceedings by providing false information, by giving inaccurate information, or by withholding information bearing on the decision to prosecute?\\n2. Whether Moore established that Smithfield Packing lacked probable cause to institute or continue criminal proceedings against Moore?\\n3. Whether Moore established that Smithfield Packing possessed the requisite malice in instituting criminal proceedings?\\n4. Whether Moore proved by clear and convincing evidence that Smithfield Packing was motivated by actual malice in instituting the criminal proceedings, so as to support punitive damages?\\nAppellees/cross-appellants present three questions for review.\\n1. Did the court err when it granted JNOV to Smithfield on the jury's award of lost wages and interest on lost wages proximately caused by Smithfield's malicious prosecution and subsequent termination of Mr. Moore's employment?\\n2. Did the court err when it granted a remittitur of the jury's award of noneconomic damages and a reduction of the jury's award of punitive damages without giving any reasons or rationale?\\n3. Did the court err when, after the first trial, it granted Smithfield's motion for JNOV on Mr. Moore's and Mr. Evely's claims of abusive discharge?\\nWe hold that the evidence was insufficient to sustain Moore's claim for malicious prosecution because, when the evidence is viewed in a light most favorable to appellees, appellant had probable cause to believe that Moore was involved in a theft. Consequently, we reverse the judgment of the Circuit Court for Prince George's County in favor of appellee. Our decision renders appellant's third and fourth questions, as well as appellees' first and second questions, moot; therefore, those questions will not be addressed in this opinion. Appellees' third assignment of error is dismissed.\\nFACTUAL BACKGROUND\\nIn November of 2000, appellant, believing that it may be the victim of employee theft at its Landover, Maryland facility, initiated an investigation. The investigation commenced on November 6, 2000 and continued until January 12, 2001 and was conducted by appellant's Head of Security, Danny Priest. As part of the investigation, Priest employed the services of William Britt to work undercover at the Landover facility as an employee in the shipping department. The record reveals that nine individuals were prosecuted by appellant for theft as a result of appellant's investigation, including Evely and Moore.\\nMoore and Evely were accused of theft as a result of an incident which occurred on December 18, 2000. Moore was employed as a truck driver by Smithfield and Evely as a shipping supervisor, at the Landover facility. On December 18, 2000, Moore arrived at the Landover facility to collect his shipment for transport to New Jersey. During a conversation with Evely, he was informed that his shipment was short two cases and he would have to attach the trailer to the truck and bring it back to the dock to have the cases loaded. Because Moore was in a hurry to go to dinner, he apparently did not want to connect the trailer and then disconnect it again before leaving for dinner, only to have to repeat the process before transporting the shipment. Evely then instructed two shipping employees, Britt and Thomas Perry (the latter having been one of the employees prosecuted for theft) to assist Moore in loading the two cases of hams into his tractor. After loading the cases in the tractor, Moore pulled away from the loading dock.\\nThe testimony of Priest revealed that the procedure was, as the products are being loaded onto the truck, the boxes are scanned and their location on the truck is marked on the load sheet. Once a load is complete, the trailer is sealed and moved to the yard to await transport. The undercover investigator, Britt, reported the incident by calling Priest and relaying the information, which Priest wrote down and later typed into his investigation report. The report stated the following:\\nSupervisor Ransom Everly [sic] gets (2) cases of hams and ask U.C. and Thomas Perry to take to door # 5 and give to driver. U.C. observed driver (later identified as Kenneth Moore) pull up in truck tractor # 653192 (bobtail) between two trailers and take the (2) boxes and put them into the cab of his truck. The driver said to U.C. and Thomas Perry his load was (2) boxes short.\\nPriest also testified that he reviewed the paperwork for Moore's load and his review did not show it to be two cases short; that placing the cases in the cab of the truck was a violation of procedure for food safety; and that Britt reported that it was nighttime and Moore did not have any lights on when he positioned the bobtail between the two trucks. Priest stated that, \\\"in view of the paper work and all these things combined, it was very suspicious activity to say the least.\\\"\\nFurther testimony by Moore, however, revealed facts that Britt could not have known from his position as an undercover agent working on the docks. Moore testified that Evely met him at the trailer, which was parked out in the yard where all the trailers are staged when they are ready for shipping, and loaded the two cases of hams into his trailer, closed and sealed the door and the two men went their separate ways.\\nEvely's testimony at trial was consistent. He testified:\\nI had told [Mr. Jones] it was two cases damaged on the load that was prestaging that load that day. And when the truck turned out, supposed [sic] to carry it to take that load out, that's when we load the truck, and I discovered it was two eases damaged. So I had to remove it from the pallet and sent [sic] it back to the packing room to get reboxed.\\nEvely continued stating that he instructed the \\\"loaders\\\" to put the boxes on Moore's truck. He further testified:\\nWhen Ken was\\u2014I was checking in about the load number. Then I know that was his load and I told him that its still two boxes still belong to that truck. You know, I told them to get the two boxes to get on his truck. I told him to get the trailer to bring it onto the docking, the trailer staging area for quite a while. And he just told me he was going to lunch. That he didn't want to hook up twice.\\nSo I told him to throw them and carry them on the truck to put them on the trailer.\\nWell, he said he didn't want to drop the trailer twice so I just told him to throw them in the cab of the truck.\\nThey just gave Kenny the boxes. And I walked through the warehouse, you know, where the trailer was in the trailer staging area. I popped the seal on it, he backed up to it and I put the boxes in the trailer and I just sealed the trailer and give [sic] him the paperwork and went on about my business.\\nPriest, during his testimony, also discussed the paperwork he reviewed, including the bill of lading, the log book at the gate (which tracks the incoming and outgoing vehicles), the loader sheet and the invoice. According to Priest, the paperwork reviewed did not support Moore's explanation that the load was two cases short and the cases had been placed in the trailer out in the yard. It was revealed on cross-examination that some of the documents contained errors. For example, the seal number, which is placed on the trailer after it is loaded\\u2014and prior to it being moved to the yard\\u2014was written on the bill of lading, but was not recorded on the loader sheet, which is completed as the truck is being loaded. Additionally, the guard log, which Priest testified did not show that Moore left the facility bobtail to get something to eat, also contained several errors in recording other incoming and outgoing vehicles.\\nOn January 10, 2001, in conjunction with the Prince George's County Police Department, a sting operation was conducted at the Landover Maryland facility. Three of the nine employees charged with larceny were observed stealing from the facility. Neither Moore or Evely was observed. A final report, prepared by Priest, on January 25, 2001, detailing the investigation into the thefts at the Landover facility was turned over to Detective Teletchea of the Prince George's County Police Department. The report, among other things, provides that the type of case is larceny, that the status is charges pending, that the surveillance was performed by himself and Loss Prevention Specialist Chris O'Brient and that the charge against each individual is larceny. Each of the employees identified in Priest's report, except Evely and Moore, was fired on January 11, 2001, following the sting operation. Evely was suspended on January 11, 2001, following a meeting with Jones, where he explained the events of December 18, 2000, consistent with his testimony, and no action was taken with respect to Moore at that time. Evely, however, was later terminated, on February 5, 2001. Notwithstanding that Jones was in possession of Priest's January 25, 2001 report, the reason for Evely's termination was not theft, but inadequate supervision.\\nBy February 27, 2001, charges had been filed by the Prince George's County Police Department against all nine individuals named in Priest's report. The statement of charges was filed by Detective Teletchea, without having conducted any further independent investigation into the matter. The statement of charges provided:\\n[O]n or about December 18, 2000 at 5801 Columbia Pike Rd. Landover, Prince George's Coutny [sic], Maryland, the above named Defendant was employed as a truck driver for Smithfield Packing Co. The defendant Mr. Kenneth Moore took two boxes of hams valued at $249.00. The defendant took the hams from the grounds of the plant without paying for them. The theft was observed by Mr. Chris O'Briant a loss prevention officer for the company. The hams taken are the property of Smithfield Packing Co. and are the responsibility of Mr. Danny Priest. All events occurred in Prince George's County, Maryland.\\nOn March 5, 2001, Moore was called to Tarheel, North Carolina for a meeting with Randy Svitak, the head of the transportation department and Moore's supervisor. No one had contacted Moore between the date of the incident and the meeting. Priest was also present at the meeting and testified that he understood the purpose of the meeting was to suspend Moore based on the theft allegations. Priest also stated that he did not call the meeting, but only took Moore's statement, which was consistent with the testimony of both Moore and Evely and that he recorded the statement and provided Moore with an opportunity to correct any errors and to sign the statement.\\nMoore was suspended at the March 5, 2001 meeting. He testified that he was told \\\"you probably will be placed on suspension until further investigation.\\\" When asked whether he had been informed about the charges that had been filed on February 27, 2001, Moore replied that he had not been informed and stated: \\\"[Priest] said you are suspended until further investigation. You will probably be charged?\\\" Moore did not receive the documents indicating he had been charged with theft until April 3, 2001. Moore also testified that, at the March 5, 2001 meeting, in exchange for not being terminated, he was asked by Priest to admit that Evely had given him the cases of hams. Specifically, Moore stated:\\nWhen I got to the door, he said you haven't been in trouble before, have you? I said no. You never been prosecuted? I said no. He said, well, if you go ahead and admit that Ransom gave you the ham, I'll save your job. I told him that I will not lie for Smithfield.\\nPriest denied ever having made the offer to Moore. Moore was terminated by Smithfield on September 12, 2001, effective March 2, 2001, the date of his suspension for \\\"violation of shop rules section 1.\\\"\\nEvely's case proceeded to trial and, on June 6, 2001, the District Court of Maryland for Prince George's County en tered a nolle prosequi in the case. Moore's case proceeded to trial and, on September 10, 2001, the court entered a judgement of acquittal. Additional facts will be provided.\\nSTANDARD OF REVIEW\\nUnder Maryland Rule 2-519(a) \\\"A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence.\\\" Subsection (b) of the Rule discusses the disposition of the motion. That section provides:\\nWhen a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.\\nSee also Spengler v. Sears, Roebuck & Co., 163 Md.App. 220, 235, 878 A.2d 628 (2005). The motion in this case was made during a jury trial; therefore, according to the Rule, the trial court, in deciding the motion, was to consider the evidence and inferences therefrom in a light most favorable to appellee.\\nIn reviewing a grant or a denial of a motion for judgment, we apply the same analysis as the trial court. See University of Baltimore v. Iz, 123 Md.App. 135, 149, 716 A.2d 1107 (1998); Spengler, 163 Md.App. at 235, 878 A.2d 628. \\\"We consider all the evidence, including the inferences reasonable and logically drawn therefrom, in a light most favorable to the non-moving party.\\\" Iz, 123 Md.App. at 149, 716 A.2d 1107 (citing Nationwide Mut. Fire Ins. Co. v. Tufts, 118 Md.App. 180, 189, 702 A.2d 422 (1997)); see also Spengler, 163 Md.App. at 235, 878 A.2d 628 (\\\"we 'assume the truth of all credible evidence on the issue, and all fairly deducible inferences therefrom, in light most favorable to the party against whom the motion is made.' \\\") (citations omitted); Houston v. Safeway Stores, Inc., 346 Md. 503, 521, 697 A.2d 851 (1997)(\\\"When reviewing a judgment n.o.v., 'this Court must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiffs right to recover\\u2014that is, the evidence must be viewed in the light most favorable to the plaintiff.' \\\") (citations omitted). This standard also applies to our review of a motion for Judgment n.o.v. Iz, 123 Md.App. at 149, 716 A.2d 1107 (citations omitted).\\nThus, \\\" '[i]f there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court would be invading the province of the jury by declaring a directed verdict.'\\\" Houston, 346 Md. at 521, 697 A.2d 851 (citing Impala Platinum v. Impala Sales, 283 Md. 296, 389 A.2d 887 (1978)); see also Iz, 123 Md.App. at 149, 716 A.2d 1107 (where the evidence is \\\"legally sufficient to generate a jury question, we may affirm the trial court's denial of the motion.\\\"). The opposite is also true, i.e., where the evidence is not sufficient to generate a jury question, or stated differently when the evidence \\\"permits but one conclusion, the question is one of law and the motion must be granted.\\\" Iz, 123 Md.App. at 149, 716 A.2d 1107 citing James v. General Motors Corp., 74 Md.App. 479, 484, 538 A.2d 782 (1988); see Houston, 346 Md. at 521, 697 A.2d 851, Spengler, 163 Md.App. at 235, 878 A.2d 628.\\nLEGAL ANALYSIS\\nThe gravamen of appellant's complaint is that the evidence was not legally sufficient to sustain appellees' claim for malicious prosecution. Appellant states that, of the four elements of the complaint, see Exxon Corp. v. Kelly, 281 Md. 689, 693, 381 A.2d 1146 (1978), appellee has only satisfied the fourth, i.e., that he was acquitted of the charges filed against him. In order to prevail on a claim for malicious prosecution, it must be established that (a) the defendant instituted or continued criminal proceedings against the plaintiff, (b) the defendant lacked probable cause for the proceedings, (c) there was \\\"malice\\\" or a primary purpose in instituting the proceedings other than that of bringing an offender to justice, (d) the proceedings ended in a favorable result for the plaintiff. Id. At the outset, we note that appellant makes no claim that the court improperly instructed the jury on the issues.\\nI\\nMALICIOUS PROSECUTION\\nA. INITIATION OR CONTINUATION OF PROCEEDINGS\\nAppellant claims that Moore failed to prove that it initiated the criminal proceedings. Appellant argues that it merely provided complete and accurate information to the police, which does not constitute the initiation of criminal proceedings. Appellant also contends that its failure to turn over Moore's March 5, 2001 statement to the police, does not support Moore's theory that it continued the prosecution against him.\\nWe have enunciated the basis for a finding that a defendant initiated the proceedings in the context of malicious prosecution in Wood v. Palmer Ford, Inc., 47 Md.App. 692, 425 A.2d 671 (1981), aff'd. in part and rev'd in part, 298 Md. 484, 471 A.2d 297 (1984). Where a party instigates, aides or assist in a criminal prosecution he/she may be liable even where he/she did not swear out a warrant. Wood, 47 Md.App. at 701, 425 A.2d 671 (citing Safeway Stores, Inc. v. Barrack, 210 Md. 168, 174, 122 A.2d 457 (1956)). A person may also be liable if he/she has \\\"instituted, instigated or inspired in any fashion a criminal proceeding against the (plaintiff) within the contemplation of the law of torts.\\\" Id. at 701-02, 425 A.2d 671 (citing Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972)). It is also well settled that a defendant may not be held liable for malicious prosecution for relying upon the independent judgment of a prosecutor or attorney where the defendant has made a full disclosure of all material facts relative to the charges being made. Brown v. Dart Drug Corp., 77 Md.App. 487, 493, 551 A.2d 132 (1989)(citing Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 287 A.2d 280 (1972)).\\nIn Dart Drug Corp., the Court considered whether summary judgment was properly granted in favor of appellee (Dart Drug) against appellant (Brown) on her claim of malicious prosecution. Id. at 489, 551 A.2d 132. Brown claimed that Dart Drug failed to turn over exculpatory statements to police after asking the police to initiate an investigation and furnishing the police with information tending to indicate Brown committed theft. Id. A theft at a Dart Drug store was investigated by two investigators from Dart Drug's internal investigations unit. Id. at 489-90, 551 A.2d 132. The investigators interviewed and took statements from a number of employees, then turned over the investigation to the police. Id. at 490, 551 A.2d 132. The investigators only turned over the statements of two of the four employee's interviewed. Later, the investigators were contacted by another employee, Forrester, who gave an exculpatory statement concerning Brown, which the investigators did not turn over to the police. Id.\\nDart Drug contended that the police commenced the action against Brown based upon an independent investigation of the theft. Id. at 491, 551 A.2d 132. The police had in fact conducted an independent investigation, but did not interview Forrester because she was not made known to them. Id. at 490-91, 551 A.2d 132. The Court reversed the grant of summary judgment, holding:\\nDart Drug denies responsibility and avers that Detective Frohlich commenced the criminal action against Ms. Brown based on his independent investigation.\\nIn Wood v. Palmer Ford, 47 Md.App. 692, 700-01, 425 A.2d 671 (1981), aff'd. in part and rev'd. in part, 298 Md. 484, 471 A.2d 297 (1984), Judge Orth cited Prosser, Law of Torts (4th ed.1971) p. 836-7, for the proposition that:\\nThe defendant may be liable either for initiating or for continuing a criminal prosecution without probable cause. But he cannot be held responsible unless he takes some active part in instigating or encouraging the prosecution. He is not liable merely because of his approval or silent acquiescence in the acts of another, nor for appearing as a witness against the accused, even though his testimony is perjured, since the necessities of a free trial demand that witnesses are not to be deterred by fear of tort suits, and shall be immune from liability. On the other hand, if he advises or assists another person to begin the proceedings, ratified it when it is begun in his behalf, or takes any active part in directing or aiding the conduct of the case, he will be responsible. The question of information laid before prosecuting authorities has arisen in many cases. If the defendant merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that his persuasion was the determining factor in inducing the officer's decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be held liable, (footnotes omitted).\\nIn the case at bar, Dart Drug directly aided the conduct of the police investigation by examining witnesses and taking statements. The manager, Stanley Klutz, filed a Crimes Against Property report the same day that the money was discovered missing and listed Kellie Brown as the number one suspect. Of the five statements that were taken by Dart Drug investigators, only two were furnished to Detective Frohlich. Most importantly, neither the exculpatory statement executed by Ms. Forrester nor Ms. Forrester's identity was ever made known to the police.\\nIt is settled law that a civil defendant may not avoid liability for malicious prosecution by relying on the independent judgment of a prosecutor or attorney unless that defendant has made a full disclosure of all material facts relative to the charges being made. Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 287 A.2d 280 (1972); Mertens v. Mueller, 122 Md. 313, 89 A. 613 (1914). It has been repeatedly held that the summary judgment procedure is not a substitute for trial but a hearing to determine whether a trial is necessary, when there is no genuine controversy. Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972). The critical question for the trial court on the motion for summary judgment is whether there exists a genuine dispute as to a material fact and, if not, what the ruling of law should be upon those undisputed facts. In determining whether a factual dispute exists, all inferences which may be drawn from the pleadings, from affidavits, or from admissions must be resolved against the moving party. Indeed, if the facts are susceptible of more than one inference, the materiality of that arguable factual dispute must be judged by looking at the inferences in a light most favorable to the person against whom the motion is made and in a light least favorable to the movant. Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985). We believe it clear that once Dart Drug had failed, for whatever reason, to provide the police with the exculpatory evidence regarding Ms. Brown, the issue of whether Dart Drug was liable on the theory of either malicious prosecution or negligence became a question for the fact finder. Accordingly, we hold that the trial court erred in granting the motion for summary judgment on behalf of Dart Drug.\\nId. at 491-493, 551 A.2d 132.\\nIn Nasim v. Tandy Corp., 726 F.Supp. 1021 (1989), the United States District Court for the District of Maryland considered the defendant's motion for summary judgment in a malicious prosecution case, in which the defendant claimed it did not institute or continue criminal proceedings against Nasim and there was probable cause to call the police to the Radio Shack store. Id. at 1023-24. Nasim had entered the Radio Shack store with a woman who attempted to use a stolen credit card and checks to make purchases. Id. at 1022. When the employee called to check the balance on the credit card, he was told by Master Card that the card was stolen and to call the police. Id. At some point, the woman left the store and Nasim remained. Id. The police were called and Nasim was arrested and charged with forgery and credit card offenses. Id. The charging documents were filled out by the police. Id. In granting the motion for summary judgment, the court found that Tandy employees did nothing more than call the police as Master Card suggested, identify Nasim as the holder of the stolen card, and testify at trial. Id. at 1025. The court also concluded that the police conducted their own independent investigation and that Tandy employees only provided truthful information to the police. Id.\\nIn the case at hand, on January 10, 2001, in cooperation with appellant, the police conducted a sting operation at the Smithfield plant. During the sting operation, three employees were observed stealing, but Moore was not among the three. It is uncontested that the sting operation was the extent of the police investigation into this matter. Any information the police had implicating Moore could have only been obtained from Priest's investigation report, which he turned over on January 25, 2001. The charges that the police lodged against Moore were drafted solely from information contained in the report. Thus, the narrow issue to be resolved is whether the police were persuaded or influenced to bring the charges against Moore, or whether the decision to charge Moore was solely within the discretion of the police.\\nThe testimony at trial was that Priest had no contact with the police between January 25, 2001, when the investigation report was submitted, and February 27, 2001, the date the charges were filed against Moore. Priest testified that it was his intention to bring charges against the nine people listed in his report, although only three of the nine had been observed during the sting. When asked, \\\"Did you tell him (Detective Teletchea) that you wanted him to bring charges against theses nine people,\\\" Priest responded \\\"yes, sir.\\\" Priest further testified, however, that it was his intention to turn over the information he had gathered to the police and allow them to conduct an investigation into the matter. No other evidence tending to show that appellant influenced the police decision to prosecute was adduced. This evidence is insufficient to demonstrate that appellant influenced or persuaded the police to file charges against Moore.\\nThere is no evidence to support a determination that the filing of charges was initiated or instigated by Priest. There was also no evidence presented to show that Priest or appellant aided the criminal prosecution of Moore. The uncontroverted evidence presented at trial was that Priest simply turned over his report to the police. Merely providing information to the police, as appellant claims it did, and leaving the decision to bring charges to the sole discretion of the police, cannot constitute the initiation of criminal proceedings. See Dart Drug Corp., supra.\\nThe failure of the police to further investigate the allegations against Moore cannot be attributed to any actions on the part of appellant. Appellant's actions on the day after the sting operation, on January 10, 2001, in our view, deprived the police of any opportunity to conduct a further investigation into the theft. Each of the employees named in the report, except Moore, was fired or suspended on the day following the sting operation, rendering it nearly impossible for the police to gather additional evidence against the individuals. Once the employees at the plant wer\\u00e9 on notice that appellant was investigating acts of theft and other violations of company policy, which could affect even those employees not implicated, any further police investigation would likely have been to no avail. Notwithstanding appellant's actions, it was within the province of the police to further investigate the matter had they chosen to do so.\\nAppellee alleges, as further support for the proposition that appellant initiated the proceedings, that Priest provided false, inaccurate, misleading or incomplete information to the police, based upon the charging documents filed by the police, after receiving Priest's report. Merely providing false infor mation, however, is not enough. That information must have also unduly influenced the authorities to commence or continue the proceedings. See Wood, 47 Md.App. at 701, 425 A.2d 671. Appellees claim that the charging document contained two false statements. The first statement is \\\"The defendant took the hams from the ground of the plant without paying for them.\\\"\\nA reading of the full text of the report prepared by Priest reveals that many of the events listed contain statements similar to the one, supra, but the event report concerning Moore does not. The event report for December 18, 2000, as appellee states, does not contain the statement that anyone witnessed Moore take the two cases of hams from the plant. The fact that Detective Teletchea, in preparing the charging statement, took liberties in recounting Priest's report does not give rise to the inference that Priest provided a false statement. The information provided by appellant\\u2014that Britt witnessed and helped appellee, along with another worker, in loading two cases of hams into the cab of his truck\\u2014was not false or misleading. The conclusions reached by Priest with respect to those events, however, could be viewed as false. The report makes it appear that Moore had committed larceny when there was no evidence that Moore had committed a crime.\\nThe second example that appellee identifies states: \\\"The theft was observed by Mr. Chris O'Briant a loss prevention officer for the company.\\\" The events of December 18, 2000 were not actually witnessed by O'Briant, but rather were witnessed by Britt. A complete reading of the report shows that O'Briant was present on two occasions to witness incidences of theft, on December 7, 2000 and January 10, 2001. No inference may be drawn that the errors in the charging documents are the result of false statements provided by Priest. Notwithstanding, the information contained in the charging documents is attributable to the report prepared by Priest. There is simply no way to attribute Detective Teletchea's embellishment of the information from the report, in drafting the charging document to Priest.\\nConsequently, under the standard articulated in Dart Drug Corp., there is insufficient evidence to support a conclusion that appellant initiated the criminal proceedings against Moore. There was no evidence to support a conclusion that Priest influenced the police to file charges against Moore by simply turning over to them the report which described what the undercover worker observed on December 18, 2000. Additionally, the information in the report concerning Moore was not false. The testimony supported the account of the events witnessed and described by Britt. Unlike Dart Drug Corp., appellant did not aide in or direct the investigation patently because the police, themselves, never engaged in an investigation at all. Appellant did not file the charging documents against Moore as did the manager in Dart Drug Corp. Even though a party can be liable for malicious prosecution when that party did not personally file the charges, the filing of charges is evidence that the party initiated the prosecution.\\nAppellant, however, could have been hable for continuing a prosecution, even where it was not responsible for actually initiating the proceedings. Appellee contends that, by not turning over an exculpatory statement to the police obtained during a March 5, 2001 meeting in Tarheel, North Carolina, appellant continued the prosecution against Moore. Appellant posits that the statement was inculpatory rather than exculpatory and that appellee failed to prove that the information would have influenced the authorities' decision to prosecute. See Dart Drug, supra. Appellant states that Priest investigated the information provided by Moore and found objective evidence that contradicted his statement. If Moore's statement constituted exculpatory evidence and appellant failed to reveal it to the police, once it was obtained by them, whether it would have influenced the decision to prosecute became a factual question for the jury. See Dart Drug Corp., supra (\\\"We believe it clear that once Dart Drug had failed, for whatever reason, to provide the police with the exculpatory evidence regarding Ms. Brown, the issue of whether Dart Drug was liable on the theory of either mali cious prosecution or negligence became a question for the fact finder.\\\").\\nExculpatory evidence is \\\"evidence favorable to an accused.\\\" Grandison v. State, 390 Md. 412, 431, 889 A.2d 366 (2005). The statement made by Moore on March 25, 2001, contained more information than the brief statement included in Priest's report, detailing that Moore's load was two cases short. In large part, the statement provides a reasonable explanation\\u2014 which none of the evidence obtained by Priest during his further investigation necessarily rebutted\\u2014that the cases of hams were only briefly placed in his cab to be transported to the trailer so that he could avoid having to connect and disconnect the trailer more than once. Specifically, the statement taken by Priest at the meeting provides:\\nI met Ransom the shipping supervisor going into the building. I asked him about the load I was picking up. He said yeah I've got it right here, holding it in his hand the paper work. He stated he had to add up the boxes again because he thought he was short 2 cases. He came up to me later and said he was (2) cases short and said to back the trailor [sic] to the door. I said I wanted to go to get something to eat and we could take care of it when I came back. He said he wouldn't be there. He said just pull up the tractor to the door and we'll throw the boxes on the truck and well [sic] take them around and put them on the trailor [sic]. The tall white guy handed them to me and I put them in the tractor on the front seat. Me and Ransom drove around to the trailor [sic] and put them on the trailor [sic]. Ransom broke the seal on the trailor [sic] and I passed them to him and he put them on the trailor [sic]. He placed them on the short pallet. He put them on the floor then climbed up into the trailor [sic] putting them on the short pallet. Ransom then closed the door placing a new seal on the trailor [sic]. I signed all the paperwork. Then I left immediately to go eat, bobtail. I returned and picked up the trailor [sic] and left.\\nThe statement was taken more than a month after appellant's investigation had concluded and only days following the filing of charges against Moore. It is unquestionable that Moore's statement provides information that was not disclosed prior to the filing of charges against Moore and that may have influenced the police and the prosecutor to conduct further investigation before deciding whether to proceed or to dismiss the charges. As stated, supra, Priest attempted to confirm Moore's account by further investigation. The gate log, at trial, however, was shown to be inaccurate on the date of the alleged theft. The fact that the shipping paperwork, reviewed by Priest, showed that the correct number of cases were loaded and delivered does not undercut Moore's account of what occurred.\\nMoreover, while we have determined that the charges filed against Moore were initiated as a result of the independent discretion of the police and prosecutors, appellant cannot rely on that independent discretion to shield itself where it has failed to make a \\\"full disclosure of all material facts relative to the charges being made.\\\" Dart Drug Corp., supra, (citing Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 287 A.2d 280 (1972)). Moore was unaware that charges had been filed against him at the time of the meeting on March 5, 2001, because he did not actually receive those documents until April 3, 2001. Priest was aware that charges had been filed, however, because he received a telephone call from Detective Teletchea advising him of that information. The purpose of the meeting, as explained by Priest, was to suspend Moore; however, Priest and Svitak took a statement from Moore before suspending him. Given that Priest claimed he did not have any contact with Moore prior to that meeting, he could not have known the information Moore provided at the meeting, i.e., that he and Evely loaded the cases into his trailer shortly after they were loaded into his bobtail tractor. These facts are material to the charges of larceny, insofar as they raise the question of whether the cases were driven off the property as part of the load or in the cab area of Moore's truck.\\nFinally, Moore testified that, following the meeting, Priest offered that, in exchange for his testimony against Evely, he would not be terminated. Priest testified that he never made such an offer to Moore, but it is the prerogative of the jury to choose whom to believe. The failure to turn over exculpatory evidence is sufficient evidence alone to support the conclusion that appellant continued the prosecution of Moore. When that failure is viewed in conjunction with the testimony that Moore refused the offer to testify against Evely, the evidence is more than sufficient to support a jury's determination that appellant continued the prosecution against Moore.\\nB. PROBABLE CAUSE\\nAppellant claims that the trial court erred in not deciding as a matter of law that Priest had probable cause to report Moore's behavior on December 18, 2000 to the police. Appellant's contention is that the operative facts were not disputed. The facts relied upon by appellant included:\\n1. The Smithfield Packing facility was experiencing serious problems with theft.\\n2. Britt had observed dockworkers and security guards stealing hams, on the night shift, and placing them in their private vehicles.\\n3. Thomas Perry was frequently observed stealing ham.\\n4. On the evening of December 18, 2000, Britt observed Moore drive the bobtail up with his lights off, and Perry give him two cases of ham that Moore placed in the cab of the truck.\\nAppellant characterizes the incident as no different from the other incidences contained in Priest's report and observed by Britt. Appellant also states that it investigated Moore's explanation that the load was two cases short and that it found no evidence to alter its conclusion that Moore stole the hams.\\nProbable cause has been defined as \\\" 'a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty.' \\\" Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 505-06, 287 A.2d 280 (1972) citing Banks v. Montgomery Ward & Co., 212 Md. 31, 39, 128 A.2d 600 (1957)(internal citations omitted). \\\" 'Mere belief, however sincere, is not sufficient. There must be such grounds of belief founded upon actual knowledge of facts as would influence the mind of a reasonable person.' \\\" Id. at 506, 287 A.2d 280. \\\"What facts are sufficient to show want of probable cause in any case is, of course, a question of law for the court; but whether such facts are proved by the evidence is a question for the jury.\\\" Id. (citing Cooper v. Utterbach, 37 Md. 282, 317 (1873)).\\nIn Okwa v. Harper, 360 Md. 161, 757 A.2d 118 (2000), the Court of Appeals, in discussing the concept of probable cause, stated:\\nProbable cause, as the term suggests, is a concept based on probability. See State v. Ward, 350 Md. 372, 396, 712 A.2d 534, 545-46 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 544 (1983)). It does not have a technical definition. Rather, the question of whether a law enforcement officer had probable cause to make a particular arrest is determined on \\\"factual and practical consideration of everyday life on which reasonable and prudent [people] . act.\\\" Id. We have defined probable cause as \\\" 'facts and circumstances sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.' \\\" DiPino [v. Davis], 354 Md. [18], 32, 729 A.2d [354,] 361 [ (1999) ] (citations omitted) (alterations in original).\\nId. at 183-84, 757 A.2d 118. In Exxon Corp., supra, the Court said:\\nIt is equally clear that if the facts, and the inferences to be drawn therefrom, relied on to constitute probable cause are clear and undisputed, the question is one of law for the court; where the facts are contested, however, whether they are proved is a question for the jury.... Thus when contested facts generate a jury issue, \\\"the jury, after being instructed as to what constitutes 'probable cause,' . should be left to determine its presence or absence.\\\"\\n281 Md. at 697-98, 381 A.2d 1146.\\nThe burden is upon the plaintiff in a malicious prosecution case to show that the defendant lacked probable cause. Nasim v. Tandy Corp., 726 F.Supp. 1021, 1026 (1989). We look at the evidence supporting probable cause as it existed at the time of the initiation of the action. See id. (\\\"Probable cause is 'measured by the circumstances as they reasonably appeared to [ ] [the defendant] at the time when he initiated action [and] is not dependent upon the actual state of the case as it may turn out upon subsequent investigation.' Brewer v. Mele, 267 Md. at 451, 298 A.2d 156\\\"); Carter v. Aramark Sports and Entertainment Serv., Inc., 153 Md.App. 210, 227, 835 A.2d 262 (2003).\\nIn providing the jury with the framework for evaluating appellant's evidence in support of the existence, vet non, of probable cause, the judge instructed the jury as follows:\\nSmithfield Packing acted without probable cause if it did not have reasonable grounds to believe in Mr. Moore's guilt. Mere belief, however sincere, is not sufficient. There must be such grounds for belief founded upon the actual knowledge of acts as would influence the mind of a reasonable person. To constitute probable cause for the prosecution of a criminal action against Mr. Moore in this case, the evidence must establish that; one, as to the events of December 18, 2000, Mr. Priest had a reasonable ground of suspicion that Mr. Evely was transferring two boxes of ham to Mr. Moore for Mr. Moore to steal them. Two, that it would appear to an ordinary and cautious person that Mr. Moore was stealing the two boxes of ham. If you find that the foregoing facts are true, you must find that there was probable cause for the prosecution of the criminal action against Mr. Moore. If you find such facts are not true, then you must find no probable cause for the prosecution of the criminal actions against Mr. Moore.\\nAppellant did not object to any of the jury instructions in this case. The facts contained in the report are insufficient to support a jury's finding that appellant lacked probable cause, ie., that there were not such grounds for belief that would influence the mind of a reasonable person that Moore was stealing.\\nAt the time the charges were filed against Moore or, more appropriately, at the time when the report was turned over to the police, the appellant's knowledge concerning the events of December 18, 2000 was limited to the information relayed by Britt. Both Evely and Perry had been previously identified as potential suspects involved in thefts at the plant. The cases were loaded into the bobtail tractor rather than the trailer, and Moore stated his load was two cases short. The facts, as they were described by Britt and included in Priest's report, were uncontested and should have been decided as a question of law. The jury was not entitled to consider the further explanation contained in Moore's statement. Moore's statement that his load was two cases short does not detract from the reasonableness of appellant's suspicion that the cases were being stolen. The court should not have submitted the issue to the jury because it should have decided the issue as a question of law. In any event, there was insufficient evidence to support the conclusion that appellant lacked probable cause to initiate the proceeding. In light of our disposition of this issue, the judgment in favor of appellee on his claim for malicious prosecution must be reversed. The presence of probable cause is a bar to the malicious prosecution claim. See Carter, 153 Md.App. at 233, 835 A.2d 262.\\nBecause we have reversed the claim for malicious prosecution, the remaining issues presented on appeal by appellant are rendered moot. The first two issues submitted by appellees on cross-appeal are also moot and will not be addressed as they relate to the claim for malicious prosecution.\\nII. PROCEDURAL DEFECT\\nAppellant's final issue, relating to the first trial, is dismissed. We explain.\\nAppellant claims that the third assignment of error arises from the first trial and that it did not claim any error with respect to those proceedings; therefore, appellees are not entitled to rely upon the statement of the case, or the statement of facts submitted in its initial brief. Appellees assert that, even if they are in violation of the Maryland Rules with respect to the issue of abusive discharge, the violation is \\\"not substantial\\\" because the issue is not intensely factual but rather a question of law.\\nAppellant's assertions are alleged violations of Maryland Rule 8-504. Subsection (a) of the Rule provides: \\\"A brief shall comply with the requirements of Rule 8-112 and include the following items in the order listed.\\\" Subsection (a)(4) states that the brief shall contain \\\"A clear concise statement of the facts material to a determination of the questions presented, except that the appellees' brief shall contain a statement of only those additional facts necessary to correct or amplify the statement in the appellant's brief. Reference shall be made to the pages of the record extract supporting the assertions.... \\\" Finally, subsection (c) provides the consequences of noncompliance with the Rule. That section states, \\\"For noncompliance with this Rule, the appellate court may dismiss the appeal or make any other appropriate order with respect to the case, including an order that an improperly prepared brief be reproduced at the expense of the attorney for the party for whom the brief was filed.\\\"\\nWith respect to the third issue raised, appellees concede that they did not set out a statement of facts as the Rule requires. Specifically, appellees state, in their brief, at footnote 6, \\\"Mr. Moore and Mr. Evely will not set forth a separate statement of facts for the first trial. The evidence introduced at the first trial is essentially the same as that admitted at the second trial, although there was some additional evidence with respect to Mr. Evely's claims.\\\" While the Rule provides that we may dismiss for failure to comply with the dictates of the Rule, it is a matter left to our discretion. See Esteps Electrical & Petroleum Co. v. Sager, 67 Md.App. 649, 657, 508 A.2d 1032 (1986).\\nAppellees' failure to provide a statement of the facts and a statement of the case, with respect to their claim that the trial court erred in dismissing their claim of abusive discharge, is fatal to their request that we review that ruling on appeal. The issues raised by that claim are unique to the first trial where the issues were decided. Appellees have not outlined the evidence presented at that trial to support their claim for abusive discharge. Appellees' argument that the evidence at the second trial is virtually identical to that presented at the first trial is unpersuasive. Appellees have not, at the very least, directed us to the testimony in the transcript of the first trial which they believe supports their claim. Additionally, with full knowledge that appellant had raised the issue, appellees submitted a reply brief in this case, but failed to include even a brief statement of the facts, procedural history or provide appendix references. We, therefore, decline to address appellees' challenge to the trial court's dismissal of their abusive discharge claims.\\nJUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGES'S COUNTY IS REVERSED.\\nCOSTS TO BE PAID BY APPELLEE.\\n. The docket entries reflect that the jury awarded Moore $848,141 in damages, however, a Memorandum of Court dated November 12, 2003, recognized and corrected the mathematical error.\\n2. On March 5, 2002, as will be explained, infra, Moore attended a meeting with the Head of Corporate Security for Smithfield (Priest) and others, where he alleged he was asked, by Priest, to testify falsely against Evely.\\n. In addition to the investigation report, which was turned over to the Prince George's County Police Department, Priest testified that there were observation notes created. The observation notes differed from the investigation report in that the notes contained information about violations of company policy as well as poor business practices.\\n. Bobtail refers to the tractor portion of an eighteen wheel truck that is driven while separated from the trailer.\\n5. Mr. Jones is the plant supervisor at the Landover Maryland facility.\"}"
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+"{\"id\": \"3716553\", \"name\": \"DEUTSCHE BANK NATIONAL TRUST COMPANY As Trustee for the Certificate Holders of ISAC 2006-5 MTG Pass-Through Certificates and Bank of America, N.A., as Successor by Merger to BAC Home Loans Servicing, LP v. Angela BROCK\", \"name_abbreviation\": \"Deutsche Bank National Trust Co. v. Brock\", \"decision_date\": \"2013-03-22\", \"docket_number\": \"No. 55\", \"first_page\": \"714\", \"last_page\": \"733\", \"citations\": \"430 Md. 714\", \"volume\": \"430\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:22:36.092062+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DEUTSCHE BANK NATIONAL TRUST COMPANY As Trustee for the Certificate Holders of ISAC 2006-5 MTG Pass-Through Certificates and Bank of America, N.A., as Successor by Merger to BAC Home Loans Servicing, LP v. Angela BROCK.\", \"head_matter\": \"63 A.3d 40\\nDEUTSCHE BANK NATIONAL TRUST COMPANY As Trustee for the Certificate Holders of ISAC 2006-5 MTG Pass-Through Certificates and Bank of America, N.A., as Successor by Merger to BAC Home Loans Servicing, LP v. Angela BROCK.\\nNo. 55,\\nSept. Term 2012.\\nCourt of Appeals of Maryland.\\nMarch 22, 2013.\\nGary C. Tepper, (Ballard Spahr LLP, Washington, D.C.; Robert A. Scott of Ballard Spahr LLP, Baltimore, MD), on brief, for Petitioner.\\nJohn Hautman, Sterling, VA, (John H. Harman, Rockville, MD), on brief, for Respondent.\\nArgued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, McDONALD, JJ.\", \"word_count\": \"6044\", \"char_count\": \"36628\", \"text\": \"HARRELL, J.\\nThis case arises out of a challenge by a borrower, Respondent Angela Brock (\\\"Brock\\\"), to the authority of various individuals and entities to effectuate a valid foreclosure on her residential property. After a foreclosure sale was scheduled in Montgomery County by the substitute foreclosure trustees, Edward S. Cohn, Stephen N. Goldberg, Richard E. Solomon, and Richard J. Rogers (referred to collectively as the \\\"Substitute Trustees\\\"), but before the sale took place, Brock filed a separate action in the Circuit Court for Montgomery County, seeking compensatory damages and declaratory and injunctive relief, against the Substitute Trustees, Deutsche Bank National Trust Company (as Trustee for the Certificate Holders of ISAC 2006-5 MTG Pass-Through Certificates) (\\\"Deutsche Bank\\\"), and BAC Home Loans Servicing LP (\\\"BAC\\\") (now known as Bank of America, N.A.), for alleged defects in the foreclosure process and the authority of the named Defendants to foreclose on her property. Deutsche Bank and BAC (referred to collectively as \\\"Petitioners\\\" ) filed a motion for summary judgment in Brock's action, which motion was granted by the Circuit Court, which concluded that no genuine dispute of material fact existed as to the Petitioners' authority to foreclose on the property and dismissed Brock's complaint in its entirety. The Court of Special Appeals reversed, in an unpublished opinion, finding, pursuant to this Court's decision in Anderson v. Burson, 424 Md. 232, 35 A.3d 452 (2011), that Petitioners did not prove they were persons entitled to enforce the promissory note, and thus genuine disputes of material fact existed precluding summary judgment. We are asked here to determine whether, based on the indorsements to the promissory note at issue, Petitioners are entitled to enforce the Note. For the reasons explained below, we determine that BAC is entitled to enforce the Note. Therefore, we reverse the judgment of the Court of Special Appeals.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nOn 28 September 2006, Brock executed a promissory note in the principal amount of $544,000 to her lender, Amerifund Mortgage Services, LLC (\\\"Amerifund Mortgage\\\"), for the purpose of financing the purchase of improved residential real property located in Silver Spring, Maryland. The promissory note (the \\\"Note\\\") was secured by a deed of trust, signed by Brock that same day, in favor of Amerifund Mortgage.\\nAlthough the loan originated with Amerifund Mortgage, it was sold and securitized thereafter. As we explained in Anderson v. Burson,\\n[s]eeuritization starts when a mortgage originator sells a mortgage and its note to a buyer, who is typically a subsidiary of an investment bank. The investment bank bundles together the multitude of mortgages it purchased into a \\\"special purpose vehicle,\\\" usually in the form of a trust, and sells the income rights to other investors. A pooling and servicing agreement establishes two entities that maintain the trust: a trustee, who manages the loan assets, and a servicer, who communicates with and collects monthly payments from the mortgagors.\\n424 Md. at 237, 35 A.3d at 455 (internal citations and footnote omitted). A special purpose vehicle \\\"is a business entity that is exclusively a repository for the loans; it does not have any employees, offices, or assets other than the loans it purchases.\\\" Id. at 237 n. 7, 35 A.3d at 455 n. 7 (quoting Christopher L. Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. Cin. L.Rev. 1359, 1367 (2010)).\\nHere, although the Note originated with Amerifund Mortgage, it appears that it was sold later. The allonge attached to the Note contains the following three indorsements:\\nPAY TO THE ORDER OF:\\nAmerican Brokers Conduit WITHOUT RECOURSE,\\nAmerifund Mortgage Services, LLC PAY TO THE ORDER OF:\\nIMPAC FUNDING CORPORATION WITHOUT RECOURSE:\\nAmerican Brokers Conduit\\nPAY TO THE ORDER OF WITHOUT RECOURSE IMPAC FUNDING CORPORATION\\nThe allonge does not indicate on what date each indorsement was made. Although not reflected in the Note's indorsements, Petitioners contend that ownership of the Note was assigned ultimately to a trust, the beneficiaries of which are the Certificate Holders of ISAC 2006-5 MTG Pass-Through Certificates. According to a Pooling and Servicing Agreement for the 2006-5 MTG Pass-Through Trust (the \\\"Trust\\\"), Deutsche Bank National Trust Company is the Trustee, and IMPAC Funding Corporation (\\\"IMPAC\\\") is denominated the Master Servicer. IMPAC entered into a Sub-Servicing Agreement with BAC, pursuant to Section 3.02 of the Pooling and Servicing Agreement, to be the sub-servicer for the loan. Under the Pooling and Servicing Agreement, therefore, both BAC and IMPAC have the power of attorney from Deutsche Bank, as Trustee, to fulfill their duties \\u2014 including, but not limited to, instituting legal proceedings and appointing attorneys for the purpose of effectuating foreclosure.\\nDue to personal financial difficulties, Brock fell behind on her loan payments. After she became delinquent, BAC appointed, in 2009, substitute trustees to initiate foreclosure proceedings. The Substitute Trustees filed an Order to Docket Foreclosure of Residential Property, pursuant to Maryland Rule 14-207, in the Circuit Court for Montgomery County, thus commencing a foreclosure proceeding against Brock and her property. The record in this case does not indicate when the Order to Docket was filed, but a foreclosure sale was scheduled for 24 February 2010.\\nOn 16 February 2010, Brock filed a Complaint for Injunctive Relief, Breach of Fiduciary Duty, and Fraud in a separate action in the Circuit Court for Montgomery County, naming as defendants Deutsche Bank, BAC, and the Substitute Trustees (referred to collectively as \\\"Defendants\\\"). Brock contended that: (1) Deutsche Bank and BAC lacked authority to appoint the Substitute Trustees; (2) the Substitute Trustees breached their fiduciary duty to Brock by attempting allegedly to foreclose unlawfully on the property and failing to investigate the authority of Deutsche Bank and BAC to initiate foreclosure; and, (3) Deutsche Bank defrauded Brock by attempting to foreclose on the property. Brock sought: (a) a permanent injunction preventing the Defendants from selling or foreclosing on the property under the deed of trust; (b) a declaration that Deutsche Bank is neither the beneficiary nor the lender under the deed of trust and thus is not empowered to enforce it or appoint substitute trustees; (c) compensatory and puni tive damages; and, (d) attorneys fees and costs. Brock filed additionally, on 18 February 2010, a motion for a temporary restraining order seeking to enjoin the Substitute Trustees from proceeding with the foreclosure sale until the court decided Brock's claims. In response, the Substitute Trustees cancelled voluntarily the foreclosure sale, pending the outcome of Brock's suit. In light of the Substitute Trustees' action, the trial court denied the motion for a temporary restraining order.\\nOn 16 September 2010, Petitioners filed a motion for summary judgment, contending principally that, because indisputably BAC has physical possession of the Note, indorsed in blank, it is entitled to enforce it, regardless of who owns the Note. In support of its contentions, Petitioners attached portions of the Pooling and Servicing Agreement, as well as an affidavit from Ron Morrison, Executive Vice President of IMPAC, stating that the Trust is the owner, IMPAC the Master Servicer, and BAC the sub-servicer of the Note. Additionally, Petitioners provided an affidavit from Lindsay Weiss, a litigation specialist at BAC, stating that according to BAC's records, although the Trust is the owner of the Note, BAC is in physical possession of the Note. Both affidavits, stated that, pursuant to the Pooling and Servicing Agreement, BAC has a Power of Attorney from Deutsche Bank to do \\\"all things that are necessary to foreclose and sell the Property per the Deed of Trust.\\\"\\nBrock filed on 4 October 2010 an Amended Complaint for Injunctive Relief, Negligence, and Declaratory Judgment, claiming that, because the Trust made its last filing with the Securities and Exchange Commission (\\\"SEC\\\") in 2007 and terminated its SEC registration, the Trust exists no longer. Alternatively, Brock claimed, as she had in her original com plaint, that the Trust does not own the Note and thus had no authority to appoint the Substitute Trustees or invoke the power of sale under the deed of trust. Brock sought a declaration that the deed of trust was \\\"null and void,\\\" and an order requiring \\\"such Deed of Trust and all related filings to be removed from the land records of Montgomery County.\\\" The same day, Brock filed a memorandum opposing Petitioners' summary judgment motion, arguing that genuine material facts existed as to the existence of the Trust and the ownership of the Note, and that Petitioners were required to support their motion for summary judgment with \\\"the best evidence available to them,\\\" referring to the actual assignment documents. In support of her contention that the Trust existed no longer, Brock produced her personal affidavit, stating that, as a result of the Trust's Notice of Suspension of Duty to File Reports with the SEC in 2007, \\\"[t]he inference to be drawn from this delisting action so soon after the Trust registered in December 2006 is that the Trust ceased to exist or perhaps never even was in existence.\\\" Further, she argued that only the lender may authorize foreclosure, and that \\\"there is nothing in the Deed of Trust or in the Maryland Code which permits a mere holder of a note secured by a deed of trust to institute foreclosure proceedings under a deed of trust where the holder can not also establish it is the owner of the note and beneficiary of the deed of trust.\\\"\\nOn 3 November 2010, Petitioners filed a second motion for summary judgment, arguing that the contentions raised in Brock's opposition memorandum were without merit, and that, because BAC is the sub-servicer and the holder of the Note, it was entitled to and could proceed properly with a foreclosure action. In support, Petitioners provided a second affidavit by Ron Morrison of IMPAC, stating: \\\"The Trust is still in existence today. Securities and Exchange Commission Rules provide that the Trust is not required to continue to file reports after a certain time period runs. The transaction is no longer public so further filings are not required. That is the only reason the Trust no longer files SEC reports.\\\"\\nAt a hearing on 1 December 2010, a Circuit Court judge granted Petitioners' motion for summary judgment and dismissed the complaint, with prejudice, finding that there was no material fact in dispute that would prohibit the foreclosure from proceeding, and that the Defendants had established that they were the appropriate entity entitled to proceed. The order dismissing the complaint was entered on 6 December 2010. Brock noted timely an appeal to the Court of Special Appeals.\\nBefore the intermediate appellate court, Brock argued that the Circuit Court erred in granting summary judgment because a genuine dispute of material fact had been raised as to the following: (1) the legal existence of the Trust; (2) the authority of Deutsche Bank to appoint the Substitute Trustees; (3) the ownership of the Note; (4) the adequacy of the pre-foreclosure notice; (5) the duty of care owed by the Substitute Trustees; and, (6) the authority of specific entities to release the Deed of Trust. In an unreported opinion, the Court of Special Appeals reversed the Circuit Court's judgment granting Petitioners' motion for summary judgment. In so holding, the court considered primarily Brock's contentions regarding the existence of the Trust and the ownership of the Note. Noting that Petitioners bore the burden of establishing the Trust's continued existence in their second motion for summary judgment, the court determined that a genuine dispute of material fact existed with respect to the continued existence of the Trust. Specifically, because the Trust was a separate entity from IMPAC and the affidavit offered in support of the Trust's continued existence was signed by an IMPAC employee, Morrison, the court determined that \\\"the affidavit is devoid of an explanation\\\" regarding Morrison's personal knowledge of the Trust's continued existence. Thus, the court held that a genuinely disputed material fact existed with regard to the Trust's existence.\\nAdditionally, the court examined the admissible facts offered by Petitioners to determine if there was generated a genuine dispute of material fact regarding the ownership of the Note. The court concluded that, because the affiants did not provide an adequate basis for their asserted personal knowledge, the two affidavits offered by Petitioners were insufficient to establish that the Trust owned the Note (citing The Great Atlantic & Pacific Tea Co. v. Imbraguglio, 346 Md. 573, 598, 697 A.2d 885, 897 (1997); Ehrlich v. Bd. of Educ. of Balt. County, 257 Md. 542, 546, 263 A.2d 853, 855 (1970)). Thus, the intermediate appellate court looked solely to the Note and allonge to determine ownership. In examining the Note, the court observed that, although Petitioners argued that the Note belonged to the Trust, the allonge did not reflect a transfer to the Trust. Thus, the court concluded that \\\"the allonge demonstrates that there was a dispute of fact as to the owner of the Note.\\\"\\nThe court went further, stating that, \\\"[e]ven assuming there was no dispute [of material fact regarding ownership], a review of the enforcement rights demonstrate[s] that summary judgment should not have been granted.\\\" Describing the chronology of the life of the Note, the court stated that the original holder was Amerifund Mortgage. After subsequent negotiation and transfer, American Brokers Conduit, and later IMPAC, became holders of the Note. The court did not consider explicitly the last indorsement on the Note, made by IMPAC.\\nNoting the parties' agreement that BAC possessed the Note, the Court of Special Appeals characterized BAC as a \\\"nonholder in possession of the Note,\\\" which permitted BAC to \\\"enforce the Note [pursuant to \\u00a7 3-301 (ii) of the Commercial Law Article] as long as it had 'the rights of a holder, i.e., a transferee in possession or nonholder in possession.' \\\" (quoting Anderson, 424 Md. at 248, 35 A.3d at 462). Because the court characterized BAC as a nonholder in possession, it noted that BAC did not \\\"enjoy the statutorily provided assumption of the right to enforce the instrument that accompanies a negotiated instrument.\\\" (quoting Anderson, 424 Md. at 249, 35 A.3d at 462). Thus, the court concluded that BAC was required to provide evidence demonstrating how BAC obtained the Note, but did not do so on the record before the court. As a result, the court determined that \\\"Deutsche Bank and BAC failed to establish that BAC had the authority to appoint the Substitute Trustees.\\\"\\nPetitioners filed a motion for reconsideration with the Court of Special Appeals, which was denied on 5 June 2012. We issued, on Petitioners' petition, a writ of certiorari, 427 Md. 606, 50 A.3d 605 (2012), to consider the following question:\\nWhether an entity in possession of a promissory note indorsed in blank \\u2014 the most common type of indorsement for thousands of notes owned by mortgage-backed security trusts \\u2014 is not a holder and is merely a non-holder in possession, in conflict with Title 3 of the Maryland UCC and a misinterpretation of this Court's decision in Anderson v. Burson, 424 Md. 232, 35 A.3d 452 (2012)?\\nSTANDARD OF REVIEW\\nOn review of an order granting or denying summary judgment, we must first determine whether a genuine dispute of material fact was made manifest on the record before the tidal court. D'Aoust v. Diamond, 424 Md. 549, 574, 36 A.3d 941, 955 (2012) (quoting Appiah v. Hall, 416 Md. 533, 546, 7 A.3d 536, 544 (2010)). The mere presence of a factual dispute, however, will not generally render inappropriate summary judgment. O'Connor v. Balt. Cnty., 382 Md. 102, 111, 854 A.2d 1191, 1196 (2004) (citing Beatty v. Trailmaster, 330 Md. 726, 738, 625 A.2d 1005, 1011 (1993)). Rather, the crux of the inquiry is whether the disputed fact is material, or, \\\"a fact the resolution of which will somehow affect the outcome of the case.\\\" Lippert v. Jung, 366 Md. 221, 227, 783 A.2d 206, 209 (2001) (quoting King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608, 614 (1985)). \\\"If no genuine dispute of material fact exists, this Court determines 'whether the Circuit Court correctly entered summary judgment as a matter of law,' \\\" Whitley v. Md. State Bd. of Elections, 429 Md. 132, 148, 55 A.3d 37, 47 (2012) (quoting Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 571, 948 A.2d 11, 18 (2008)), without deference to the lower courts' assessment of the law. Rhoads v. Sommer, 401 Md. 131, 148, 931 A.2d 508, 517-18 (2007).\\nDISCUSSION\\nPetitioners argue that, in determining that a genuine issue of material fact existed as to the ownership of the Note and the existence of the Trust, the Court of Special Appeals erred in failing to recognize that the last indorsement of the Note (by IMPAC) was an indorsement in blank. Thus, Petitioners argue, because BAC was in possession of the Note, indorsed in blank, BAC was the holder of the Note pursuant to \\u00a7 3-205 of the Commercial Law Article and was, therefore, entitled to enforce it. See Md.Code (1975, 2002 Repl.Vol.), Com. Law Art., \\u00a7 3-301. Because the Commercial Law Article gives BAC the right to enforce the Note, Petitioners contend, in essence, that any issues of fact regarding the existence of the Trust and the ownership of the Note are not material and may not defeat their motion for summary judgment. Brock does not appear to contradict Petitioners' asser tion that BAC is the holder of the Note, but rather counters that the alleged factual disputes are indeed material. Specifically, she argues that summary judgment is inappropriate because (1) if the Trust does not exist, the Deed of Appointment was executed on behalf of a non-existent legal entity and thus is insufficient to grant the Substitute Trustees the authority to seek foreclosure; and (2) it is Deutsche Bank, as Trustee, and not BAC, which is seeking to foreclose on the property; thus it is Deutsche Bank's, and not BAC's, status as a holder, or a non-holder, of the Note that is relevant.\\nA deed of trust securing a negotiable promissory note \\\"cannot be transferred like a mortgage; rather, the corresponding note may be transferred, and carries with it the security provided by the deed of trust.\\\" Anderson, 424 Md. at 246, 35 A.3d at 460 (citing Le Brun v. Prosise, 197 Md. 466, 474, 79 A.2d 543, 548 (1951)). Thus, once the note is transferred, \\\"the right to enforce the deed of trust follow[s].\\\" Svrcek v. Rosenberg, 203 Md.App. 705, 727, 40 A.3d 494, 507 (2012); Md.Code (1975, 2002 Repl.Vol.), Com. Law Art., \\u00a7 9-203(g) & cmt. 9 (codifying \\\"the common-law rule that a transfer of an obligation secured by a security interest or other lien on . real property also transfers the security interest or lien\\\"). As a result, because a negotiable promissory note secured by a deed of trust is governed by the Commercial Law Article of the Maryland Code, so too is the resolution of the parties' dispute in the present case. Shepherd v. Burson, 427 Md. 541, 551, 50 A.3d 567, 573 (2012); Anderson, 424 Md. at 246, 35 A.3d at 460. We determine that, contrary to the panel of the Court of Special Appeals, BAC is a holder of the Note and that, therefore, the remaining disputes of fact are not material to the resolution of this case.\\nThe Commercial Law Article provides that the person or entity obligated on a promissory note must pay the obligation to, in relevant part, \\\"a person entitled to enforce the instrument.\\\" Md.Code (1975, 2002 Repl.Vol.), Com. Law Art., \\u00a7 3-412; see also In re Veal, 450 B.R. at 910 (noting that \\\"the person obligated on the note . must pay the obligation represented by the note to the 'person entitled to enforce' it\\\"). If the maker of a note \\u2014 in this case, Brock \\u2014 pays a person entitled to enforce that promissory note, the maker's obligations under the note are discharged to the extent of the payment. Md.Code (1975, 2002 Repl.Vol.), Com. Law Art., \\u00a7 3-602(a). Thus, any payment that Brock made to a person or entity entitled to enforce the Note \\u2014 and thus any action taken to foreclose on the collateral secured by the Deed of Trust \\u2014 is sufficient, to the extent paid, to discharge Brock's liability on the Note.\\nPursuant to the Commercial Law Article, a promissory note may be enforced by:\\n(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to \\u00a7 3-309 or \\u00a7 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.\\nId. at \\u00a7 3-301. In this context, a \\\"holder\\\" is \\\"[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.\\\" Id. at \\u00a7 1-201(b)(21)(i). A promise or order is payable to bearer if it states that: (a) it is payable to bearer or to cash; (b) indicates that an individual or entity in possession of the promise or order is entitled to payment; (c) does not state a payee; or, (d) otherwise indicates that it is not payable to an identified person. Id. at \\u00a7 3-109(a). Thus, the person in possession of a note, either specially indorsed to that person or indorsed in blank, is a holder entitled generally to enforce that note.\\nBrock contends that, regardless of which entity is the holder of the Note, only the owner may enforce the Note and bring an action to foreclose. The Commercial Law Article makes clear, however, the distinction between a holder and an owner. As the Comment to \\u00a7 3-203 states, \\\"[t]he right to enforce an instrument and ownership of the instrument are two different concepts.\\\" The holder of a note is \\\"entitled to enforce the instrument even [if it is] not the owner of the instrument or is in wrongful possession of the instrument.\\\" Id. at \\u00a7 3-301. See also In re Veal, 450 B.R. 897, 909 (9th Cir. BAP 2011) (\\\"Article 3 does not necessarily equate the proper person to be paid with the person who owns the negotiable instrument.\\\"); SMS Financial, LLC v. ABCO Homes, Inc., 167 F.3d 235, 238-39 (5th Cir.1999) (noting that a party's status as a holder and its attendant right to enforce an instrument is separate from the party's status as the owner of that instrument); In re Walker, 466 B.R. 271, 280 (Bankr.E.D.Pa.2012) (\\\"[T]he borrower's obligation is to pay the person entitled to enforce the note (who need not be the 'owner' of the note).\\\"); In re Simmerman, 463 B.R. 47, 60 (Bankr.S.D.Ohio 2011) (noting that \\\"the holder of the note may differ from the owner of the note\\\"). As the court noted in In re Veal, \\\"[u]nder established rules, the maker [of a note] should be indifferent as to who owns or has an interest in the note so long as it does not affect the maker's ability to make payments on the note.\\\" 450 B.R. at 912. Here, Brock does not contend that she does not know to which entity her payments are due, and thus, the question of which entity owns the Note is irrelevant to the resolution of the present case.\\nThe Court of Special Appeals determined that IMPAC, as the last named entity on the allonge, and not BAC, was the holder of the Note. Apparently because the Note was not indorsed specially to BAC, the intermediate appellate court instead characterized BAC as a nonholder in possession, thus permitted to enforce the Note only so long as it possessed the rights of a holder and required to \\\"account for possession of the unindorsed instrument by proving the transaction through which [it] acquired it.\\\" (quoting Anderson, 424 Md. at 249, 35 A.3d at 462). Because the record does not demonstrate how BAC obtained the Note, however, the Court of Special Appeals determined that BAC did not have the right to enforce it.\\nPetitioners contend that the Court of Special Appeals misconstrued the requirement in Anderson that a party seeking to enforce an unindorsed instrument must prove its transfer history by applying it to the present case. Specifically, Petitioners contend that, in reaching its conclusion that BAC was merely a transferee in possession of the Note and requiring BAC to prove the Note's transfer history, as in Anderson, the intermediate appellate court ignored the last indorsement on the Note, which read:\\nPAY TO THE ORDER OF:\\nWITHOUT RECOURSE IMPAC FUNDING CORPORATION\\nBecause the instrument was indorsed in blank by IMPAC (which the Court of Special Appeals characterized as a holder of the Note), Petitioners argue that the Note could be transferred by possession alone. See Md.Code (1975, 2002 Repl.Vol.), Com. Law Art., \\u00a7 3-205(b). Thus, because there is no dispute that BAC is in possession of the Note, Petitioners argue, BAC is therefore a holder of the Note and entitled to enforce it, free of any requirement to prove how it came into possession of the Note.\\nWe agree that the Court of Special Appeals's recourse to Anderson in this context is unhelpful. In Anderson, we considered the enforcement rights of a reputed transferee in possession (also Deutsche Bank) of an unindorsed note. Notably, we determined in Anderson that, due to the lack of indorsement on the note assigning the note to Deutsche Bank, Deutsche Bank was not a holder of the note, and had not received it by negotiation. 424 Md. at 247-48, 35 A.3d at 461-62. We noted that \\\"[a] nonholder in possession . cannot rely on possession of the instrument alone as a basis to enforce it.\\\" Id. at 248-49, 35 A.3d at 462. Rather, because \\\"[t]he transferee's right to enforce the instrument derives from the transferor (because by the terms of the instrument, it is not payable to the transferee),\\\" those rights must be proved. Id. We stated, \\\"The transferee does not enjoy the statutorily provided assumption of the right to enforce the instrument that accompanies a negotiated instrument, and so the transferee 'must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it.' \\\" Id. at 249, 35 A.3d at 462 (quoting Md.Code, Com. Law Art., \\u00a7 3-203 cmt. 2).\\nIn stark contrast to Anderson, however, the present case involves a Note that contains all necessary indorsements. There is no gap in the indorsements purporting to transfer the Note and, indeed, Brock does not argue in this Court that the indorsements were insufficient to negotiate the Note to BAC. BAC is in possession of the Note that is indorsed in blank. BAC is therefore the holder of the Note, and, as the holder, is a person or entity entitled to enforce it. See Md.Code (1975, 2002 Repl.Vol.), Com. Law Art., \\u00a7 3-301. Thus, whether the Trust is (or is not) the owner of the Note is irrelevant for present purposes.\\nBrock maintains that the existence of the Trust is a material fact because the Deed of Appointment of the Substitute Trustees was executed by BAC as \\\"attorney in fact\\\" on behalf of the Trust. Brock argues that, if the Trust is nonexistent, the Deed of Appointment is ineffective, and the Substitute Trustees and BAC do not have authority to foreclose, because \\\"BAC can not act as agent for an entity which does not legally exist.\\\" As Petitioners note, however, whether BAC signed the Deed of Appointment on its own authority or as agent on behalf of the Trust \\\"is a distinction without a difference.\\\" In either capacity, BAC has the authority to appoint the Substitute Trustees and is bound by the Deed of Appointment. Thus, even if there is a dispute of fact over the Trust's continued existence, it is not material to the outcome of this case. Accordingly, we reverse.\\nJUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.\\n. Although the Substitute Trustees were named parties to the action in the Circuit Court and the Court, of Special Appeals, they did not file a petition for certiorari or a brief with this Court. Therefore, they are not parties to the appeal.\\n. A copy of the deed of trust is not included in the record.\\n. An allonge is generally a \\\"slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.\\\" Anderson, 424 Md. at 240 n. 10, 35 A.3d at 457 n. 10 (quoting Black's Law Dictionary 88 (9th ed.2004)). Pursuant to Maryland Code (1975, 2002 Repl.Vol.), Com. Law Art., \\u00a7 3-204(a), an allonge is considered to be a part of the Note.\\n. Although Brock, in oral argument before us, expressed doubt regarding the validity of the indorsements on the Note, the authenticity of the indorsements was not an issue raised in or considered by the Court of Special Appeals. Thus, because the question of the validity of the indorsements contained on the allonge are not before this Court, we assume, without deciding, that the indorsements are valid.\\n. The record does not indicate definitively the chronological trail of the loan \\u2014 specifically, when or to whom Amerifund Mortgage sold the loan, or when or what entity securitized the loan into the Trust. According to an affidavit by Lindsay Weiss, a litigation specialist for BAC, the Trust was formed \\\"through the transfer of various mortgage loans to the Trust by IMPAC,\\\" which included the Brock loan. Although Petitioners contend that the Trust owns the Note, Brock argues that the true ownership of the Note is an open question precluding, on this record, Petitioners' enforcement of the Note.\\n. Bank of America, N.A. is the successor by merger to BAC Home Loans Servicing, which was known formerly as Countrywide Home Loans Servicing LP.\\n. Specifically, the Pooling and Servicing agreement provides, in relevant part:\\nThe Master Servicer may perform its responsibilities relating to servicing through other agents or independent contractors, but shall not thereby be released from any of its responsibilities as hereinafter set forth. The authority of the Master Servicer, in its capacity as master servicer, and any Sub-Servicer acting on its behalf, shall include, without limitation, the power to (i) consult with and advise any Sub-Servicer regarding administration of a related Mortgage Loan; (ii) approve any recommendation by a Sub-Servicer to foreclose on a related Mortgage Loan; (iii) supervise the filing and collection of insurance claims and take or cause to be taken such actions on behalf of the insured Person thereunder as shall be reasonably necessary to prevent the denial of coverage thereunder; and (iv) effectuate foreclosure or other conversion of the ownership of the Mortgaged Property securing a related Mortgage Loan, including the employment of attorneys, the institution of legal proceedings, the collection of deficiency judgments, the acceptance of compromise proposals, the filing of claims under any Insurance Policy and any other matter pertaining to the delinquent mortgage loan.\\nSubject to Section 3.16, the Trustee shall execute, at the written request of the Master Servicer, and furnish to the Master Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Master Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Master Servicer a power of attorney to carry out such duties.\\n. According to Brock, BAC executed a Deed of Appointment of Substitute Trustees, dated on or about 3 December 2009, which is not included in the record. The Deed of Appointment was signed allegedly by Darlene Buzzard as \\\"Attorney in Fact\\\" on behalf of BAC, acting as \\\"Servicing Agent\\\" for Deutsche Bank. BAC does not dispute that it appointed the Substitute Trustees.\\n. Brock contended that because the deed of trust listed Amerifund Mortgage as the lender and stated that only the lender has the authority to invoke the power of sale, Deutsche Bank did not have the power of the lender and could not foreclose under the deed of trust.\\n. Brock's negligence claim in her First Amended Complaint was in essence the same as the breach of fiduciary duty claim she asserted against the Substitute Trustees in her original Complaint.\\n. The Substitute Trustees filed a motion to dismiss the amended complaint on 18 November 2010, contending that, as a matter of law, it failed to state a claim upon which relief could be granted. At the hearing on December 1, the trial judge stated that he was not considering the Substitute Trustees' motion, but rather limited his decision to the motion for summary judgment offered by Petitioners.\\n. Although the Court of Special Appeals discussed in its opinion Brock's contentions regarding the pre-foreclosure notice, duty of care, and authority to release the Deed of Trust, these issues were beyond the scope of Petitioners' motion for summary judgment. This is so because they were not included in either of Petitioners' motions for summary judgment, Brock's response, or decided or relied on by the Circuit Court judge at the summary judgment hearing.\\n. The Court of Special Appeals determined that Brock's contention that Deutsche Bank lacked the authority to appoint the Substitute Trustees was not preserved for appellate review because Brock con ceded before the trial court that it was BAC, and not Deutsche Bank, that possessed the Note and appointed the Substitute Trustees. Without deciding the merits of the three remaining issues raised on appeal by Brock, the court noted that, as a consequence of its reversal of the decision below on other grounds, the issues were preserved for trial.\\n. Brock argues also that the intermediate appellate court ruled correctly that: (1) there was a material fact in dispute as to whether the Substitute Trustees were negligent; and, (2) there was a material fact in dispute as to whether a declaratory judgment should be issued to quiet title. These issues are not before this Court properly, as they were not considered expressly or raised by the parties in the summary judgment hearing, nor raised in Petitioners' petition for writ of certiorari.\\n. The person or entity obligated on a promissory note is referred to generally as the \\\"maker\\\" of the note. See Md.Code (1975, 2002 Repl.Vol.), Com. Law Art., \\u00a7 3-103(a)(5).\\n. Pursuant to Commercial Law Article, \\u00a7 3-205,\\n(a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a \\\"special indorsement\\\". When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person....\\n(b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a \\\"blank indorsement\\\". When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.\\n. We discussed recently in Anderson v. Burson the enforcement rights accompanying a negotiation or transfer of a negotiable instrument. See 424 Md. at 246-47, 35 A.3d at 461. Here, however, the parties do not dispute the validity of the indorsements on the Note, nor argue that the indorsements were insufficient to negotiate the Note to the last specially indorsed holder on the allonge, IMPAC. Thus, we assume that IMPAC was a holder of the Note at the time the final indorsement in blank was made.\"}"
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+"{\"id\": \"3719467\", \"name\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Richard Valentine PATTON, III\", \"name_abbreviation\": \"Attorney Grievance Commission v. Patton\", \"decision_date\": \"2013-06-27\", \"docket_number\": \"Misc. Docket AG No. 24\", \"first_page\": \"359\", \"last_page\": \"385\", \"citations\": \"432 Md. 359\", \"volume\": \"432\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T18:44:21.154420+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Richard Valentine PATTON, III.\", \"head_matter\": \"69 A.3d 11\\nATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Richard Valentine PATTON, III.\\nMisc. Docket AG No. 24,\\nSept. Term, 2012.\\nCourt of Appeals of Maryland.\\nJune 27, 2013.\\nLydia E. Lawless, Assistant Bar Counsel (Glenn M. Gross-man, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.\\nHarvey J. Myerberg, Esquire (Jacobson and Myerberg, P.A., Towson, MD), for Respondent.\\nArgued before BELL, C.J. HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.\", \"word_count\": \"7479\", \"char_count\": \"47134\", \"text\": \"GREENE, J.\\nThe Attorney Grievance Commission of Maryland (\\\"Petitioner\\\"), acting pursuant to Maryland Rule 16-751(a), filed a \\\"Petition For Disciplinary or Remedial Action\\\" against Richard Valentine Patton, III (\\\"Respondent\\\" or \\\"Patton\\\"), and we referred the case to the Honorable David W. Young, Circuit Court for Baltimore City, to conduct a hearing. On June 12, 2012, Respondent was personally served with the Petition for Disciplinary or Remedial Action as well as interrogatories and a request for documents relating to his practice of law. When Patton failed to answer the Petition or provide documents twenty-three (23) days after service, Petitioner filed and was granted a Motion for Order of Default.\\nAfter Respondent filed his Answer untimely, on or about August 1, 2012, Petitioner filed and was granted a Motion to Vacate Order of Default, Motion to Compel, Motion to Shorten Time to Respond to Petitioner's Motion to Compel, Motion for Mental Examination, and Motion to Shorten Time to Respond to Petitioner's Motion for Mental Examination. A scheduling conference was held on August 23, 2012, where Petitioner and Respondent agreed, on the record, that Respondent would provide Petitioner with discovery documents by Monday, August 27, 2012. When Respondent failed to provide documents as agreed, on August 29, 2012, Petitioner filed a Motion for Sanctions and a Motion to Shorten Time to Respond to Petitioner's Motion for Sanctions. The hearing court granted the Motion to Shorten Time to Respond to Petitioner's Motion for Sanctions and directed Respondent to file a written response within five (5) days.\\nJudge Young held an evidentiary hearing on September 20, 2012. Petitioner's Motion for Sanctions was also considered and Respondent admitted to failing to respond to Petitioner's request for information and documents. After consideration of arguments from both Petitioner and Respondent and the record in the case, the hearing judge granted Petitioner's Motion for Sanctions. The hearing judge then ordered that, during the disciplinary hearing, Respondent would not be permitted to offer any documents, evidence, or testimony that would contradict the charges in the Petition and that Respondent would only be allowed to testify as to mitigation. Because Respondent has admitted to failing to respond to Petitioner's request for information and documents and did not file a timely answer to Petitioner's complaint, the averments in the complaint are considered admitted.\\nBased upon, among other things, testimony from a number of witnesses, the hearing judge entered the following Findings of Fact and Conclusions of Law.\\nFINDINGS OF FACT\\n\\\"Richard Valentine Patton, III . has been a member of the Maryland Bar since June 15, 2004.\\\" At the time of the underlying incidents, \\\"he maintained a solo law practice in Maryland.\\\"\\nBar Counsel\\nIn 2010 and 2011 Respondent sublet office space at 11 E. Lexington Street in Baltimore from Harold Weisbaum. Near the end of 2011 Respondent was asked to move out of the office and change his mailing address after he failed to pick up his mail, Respondent's clients came looking for him and it became impossible to reach him by telephone. On December 12, 2011, Mr. Weisbaum contacted the Attorney Grievance Commission. On December 16, 2011, Respondent was directed by Bar Counsel to update his address with the Client Protection Fund and courts where he had entered appearances as well as the firm's website. \\\"Respondent did not change his mailing address with the Client Protection Fund or courts until March of 2012[,]\\\" and, \\\"[i]n August 2012, communications from Respondent's bank regarding his IOLTA account were still being delivered to 11 E. Lexington Street.\\\"\\nSeveral times Respondent failed to appear in the Circuit Court for Baltimore County on behalf of clients Danielle N. Kraemer, Andrew R. Lloyd, Kevin R. Jones, and Harry J. Gillis. Respondent was unavailable when repeated attempts were made by clients, opposing counsel, and judges to contact him after he had scheduled court appearances on behalf of clients. Clients would appear in court without counsel and were forced to resolve their cases without the benefit of Respondent's representation \\u2014 for which they had paid. In the case of Danielle N. Kraemer, where she was hospitalized and unable to appear in court on April 7, 2011 (and had timely notified Respondent), a bench warrant was issued for her arrest after Respondent failed to notify the court of Ms. Kraemer's hospitalization. Ms. Kraemer filed, pro se, a motion to quash the warrant.\\nIn April 2011, the Honorable Susan Souder, one of the judges before whom Respondent had failed to appear, referred him to the Baltimore County Lawyer Assistance Committee. After Judge Souder was advised that Respondent was non-cooperative, both she and the Honorable Thomas Bollinger, another judge before whom Respondent had failed to appear, filed a complaint with the Attorney Grievance Commission.\\nOn October 19, 2011, when Respondent failed to appear for a second time on behalf of Andrew R. Lloyd in a case before the Honorable John Grason Turnbull, II, Judge Turnbull sent a letter to Respondent requiring him to explain his unexcused absences. When Judge Turnbull received no response from Respondent, Judge Turnbull filed a complaint with the Attorney Grievance Commission on November 1, 2011. On November 28, 2011, Respondent again failed to appear before Judge Turnbull on behalf of his client Kevin R. Jones, notifying only the State's Attorney's office that he would not appear because of medical reasons.\\nRespondent was also involved in various criminal offenses during the period he was neglecting his clients' affairs. The hearing judge found that \\\"[o]n April 18, 2011, Respondent was indicted for illegal possession of a firearm, discharging a firearm and possessing a controlled dangerous substance (oxycodone) in the Circuit Court for Baltimore County [ ].\\\" The hearing judge further found that this case resulted in a stet conditioned on Respondent's consent: (1) to the \\\"forfeit[ure of] all interest in any property seized in the execution of the search warrant including any firearms and weapons;\\\" (2) to the completion of a 28-day inpatient and 48 week after care program through the Right Turn Addictions Program; (3) to provide a status update to the State upon completion of the inpatient program and then every other month throughout the after care program, and (4) to remain law abiding.\\nRespondent did not complete the Right Turn inpatient program, or any other inpatient program, he did not provide any status updates to the State and he did not remain law abiding. In fact, on August 26, 2011, the morning after he agreed to the stet, Respondent was charged with driving negligently and impaired by the consumption of alcohol and drugs. He pled guilty to negligent driving and the State entered a nolle prosequi to the remaining charges. In the five months that followed this incident, Respondent was cited twice (on September 30, 2011 and January 13, 2012) for exceeding the speed limit.\\nIn addition, during the period of December 2011 to June 2012, Respondent was summoned for jury duty in Baltimore County and he failed to return the Jury Qualification Form and appear for jury duty. At a show cause hearing on June 27, 2012, Respondent appeared and was fined $500 to be paid within 30 days. Respondent did not pay the fine.\\nMichael B. Hendrickson\\nOn June 25, 2010, Mr. Hendrickson signed a retainer agreement with Respondent for a flat fee of $1,000. Respondent was to represent Mr. Hendrickson in a criminal matter scheduled to be heard in the District Court of Maryland sitting in Anne Arundel County on September 17, 2010. Both Respondent and Mr. Hendrickson appeared in court on September 17, but the case was postponed until December 18, 2010. According to their testimony, between September 17 and the morning of December 18, Mr. Hendrickson or his fiancee, Chrystal Shackelford, called Respondent approximately 30 times and sent him numerous text messages. Patton did not respond until he sent a text message to Ms. Shackelford the morning of December 18 stating that he was in the hospital and would not be appearing in court. Respondent suggested that Mr. Hendrickson ask the court for a postponement. The case was rescheduled for March 18, 2011, and Respondent was advised of the new date. Again, Mr. Hendrickson and Ms. Shackelford, by telephone and text message, attempted to contact Respondent numerous times with no success. Respondent did not appear in court on March 18 and the court had not been offered any reason for his absence. In addition, Mr. Hendrickson learned that Respondent failed to enter his appearance in the case. Additionally, Mr. Hendrickson never received a refund from Respondent.\\nMr. Hendrickson filed a complaint with the Attorney Grievance Commission against Respondent in May 2011. When Respondent received notification about the complaint, he called Mr. Hendrickson and told him that \\\"he should not have filed the complaint, other clients who filed complaints against Respondent did not succeed, and that Mr. Hendrickson should have asked if he wanted a refund.\\\" Mr. Hendrickson estimated that his telephone conversations with Respondent amounted to about 4-5 hours of conversation over a period of 20-25 calls. \\\"Respondent did not offer Mr. Hendrickson, Petitioner, or [the hearing] [c]ourt any additional evidence detailing the work performed and time spent on Mr. Hendrickson's case.\\\"\\nRobert A. Tryson\\nRobert Tryson's fiancee asked Respondent to represent Tryson in a drug possession and conspiracy case in Washington County in November 2010. Mr. Tryson's fiancee paid Respondent $5,000 by charging it to her credit card.\\nRespondent and Mr. Tryson met for the first time on November 4, 2010, at which time Mr. Tryson signed a retainer agreement specifying that Respondent would charge him a flat fee of $5,000. The hearing judge determined that representation for this fee would \\\"include arranging bail, negotiating a plea and/or jurisdiction [sic] . through the Preliminary Hearing in the District Court[]\\\" using Respondent's \\\"best efforts.\\\" Although Respondent did not explain to Mr. Tryson the purpose of the attorney trust account or that funds in Respondent's operating account were subject to Respondent's creditors, the retainer specified that Mr. Tryson authorized Respondent to place the fee in Respondent's operating account.\\nThe hearing judge noted that Mr. Tryson \\\"was re-arrested [on November 30, 2010] under a sealed indictment in Baltimore County for an incident related to the Washington County arrest.\\\" After the arrest Respondent and Mr. Tryson's fiancee exchanged a number of text messages and, on the afternoon of November 30, 2010, Mr. Tryson called Respondent from the detention center and was told that there \\\"was nothing that could be done until Mr. Tryson appeared before the Commissioner and [Respondent] told Mr. Tryson to call him when he was released.\\\"\\nWhen Mr. Tryson was released on bond the morning of December 1, 2010, he immediately sent Respondent a text message and Respondent replied that he would contact him later that day. He did not contact Mr. Tryson and did not respond to Mr. Tryson's multiple attempts to reach him by text message or telephone over the next several days. Pinal ly, on December 3, 2010, Mr. Tryson retained other counsel and informed Respondent by voicemail that same day. \\\"Respondent did not respond to the December 3rd voicemail or otherwise acknowledge that the representation had been terminated.\\\"\\nOn December 7, 2010, Mr. Tryson's new counsel waived the scheduled preliminary hearing in Washington County. Even though Respondent had been advised that Mr. Tryson had new counsel, Respondent sent Mr. Tryson several text messages that same day [December 7] stating \\\"that he was 'still working' on the preliminary hearing.\\\" To make clear to Respondent that he had new counsel, Mr. Tryson sent Respondent an e-mail on December 10, 2010, asking for a billing statement and requesting reimbursement of the remainder of the $5,000 retainer. On December 20, 2010, Respondent notified Mr. Tryson via text message that \\\"he had fulfilled the fee agreement and no refund would be provided.\\\" Mr. Tryson sent Respondent an e-mail on December 21, 2010, outlining Respondent's representation. The hearing judge summarized Mr. Tryson's e-mail to Respondent as follows:\\nRespondent helped to arrange bail and have Mr. Tryson released following the Washington County arrest; Respondent had no contact with the State's Attorney on the Washington County matter until after Thanksgiving; Respondent provided little assistance in arranging for Mr. Tryson's release following the Baltimore County arrest; Respondent did not communicate with Mr. Tryson following the Baltimore County arrest; Respondent did not withdraw his representation immediately following the termination of the attorney-client relationship on December 3, 2010; and Respondent failed to communicate with Mr. Tryson following the termination of the representation.\\nRespondent did not return any portion of Mr. Tryson's $5,000 retainer fee.\\nMITIGATION\\nAs to mitigation, the hearing judge found that Respondent admitted his dependency on \\\"narcotics and tranquilizers.\\\" In spite of this admission, Respondent has not committed to a treatment program. Although he did meet with James Quinn, Director of the Lawyer Assistance Program for the Maryland State Bar Association, he did not actively participate in the program's structured events. The hearing judge concluded that,\\nRespondent did not seek referrals from the program, did not regularly participate in the weekly group meetings, attended only three or four over a period of months, nor did he enroll in the urine screening program, and eventually, stopped communicating at all with the program. In July 2011, [he] indicated a desire to get back on track and start participating in the program.\\nRespondent, however, only attended one Alcoholics Anonymous (AA) meeting. Also the hearing judge found that in July 2011 Respondent enrolled in Father Martin's Ashley inpatient program but \\\"was discharged early, without completing the program for a pattern of rebelliousness or unwillingness to comply with some of the program's rules.\\\"\\nRespondent did not complete the Right Turn 28-day inpatient program he enrolled in as part of his stet agreement with the State in August 2011. Specifically, \\\"[h]e completed ten (10) days, left, re-enrolled for three (3) days, and then left again.\\\"\\nDr. Christiane Tellefsen was qualified as an expert in the field of forensic psychiatry and testified before the hearing judge that she had met with Respondent and reviewed his medical and treatment records, including those from his then \\u2014 treating physician, Dr. Richard Bombeck. Dr. Tellefsen concluded that even though Respondent had testified under oath that he had been sober since January 2012, records from Dr. Bombeck indicated that was not the case and that he was still using on a daily basis as recently as July 2012.\\nAccording to the record, \\\"Dr. Tellefsen considered the fact that Respondent has made several failed efforts at treatment programs, that he has continued to use despite being in treatment and that he has a history of oppositional behavior and rebelliousness to treatment plans and support groups . that he does not believe in taking medication to assist in his recoveryt ]\\\" and concluded that Respondent's \\\"prognosis was guarded to poor.\\\"\\nThe hearing court accepted Dr. Tellefsen's testimony that \\\"Respondent's diagnosis and prognosis interfere with his ability to practice law and that his sobriety is simply too tentative, and relapse too likely, to make him reliable enough to practice law.\\\"\\nCONCLUSIONS OF LAW\\nThe hearing judge found, by clear and convincing evidence, that Respondent had violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 1.15, 1.16, 3.4, 8.1, and 8.4 of the Maryland Lawyers' Rules of Professional Conduct (\\\"MLRPC\\\") and Md. Rule 16-604 as follows:\\nRespondent violated Rule 1.1 (Competence) when he failed to appear in court on behalf of clients Danielle N. Kraemer, Andrew R. Lloyd, Harry J. Gillis, Kevin R. Jones, and Michael B. Hendrickson. Respondent violated Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer) when he failed to appear in court: on April 7, 2011 for Ms. Kraemer; on April 7, 2011 and October 19, 2011 for Mr. Lloyd; on April 11, 2011 and May 9, 2011 for Mr. Gillis; on November 28, 2011 for Mr. Jones. He also violated Rule 1.2 by \\\"failing] to maintain control of the Kraemer matter by allowing a bench warrant to be issued for [Ms. Kraemer][,]\\\" and by \\\"preventing] the timely resolution of the Jones matter\\\" when \\\"Respondent was not present in court to advise the State whether Mr. Jones wanted to accept or reject a plea.\\\"\\nNot only did Respondent fail to appear in court on behalf of these clients but also he failed to let them know that he would not be appearing. In addition, Respondent regularly ignored clients by not returning their phone or text messages. Further, Respondent failed to file a motion to quash Ms. Kraemer's bench warrant, instead leaving Ms. Kraemer \\\"no other choice than to represent herself.\\\" Respondent failed to pick up his mail from a leased office, failed to change his address with the Client Protection Fund, with any court where his appearance was entered and on his firm's website. Respondent also failed to return calls from Judge Bollinger or respond to Judge Turnbull's letter. Therefore, Respondent violated Rule 1.3 (Diligence).\\nWhen Respondent failed to keep his clients \\\"apprised of the status of their cases . by not making or returning phone calls to his clients . [or] showing] up in court on their behalf without prior notice to his clients or the court[,]\\\" and when \\\"he failed to comply with the reasonable requests of Judges Turnbull and Bollinger to give an explanation for his failure to appear in court on behalf of his clients!,]\\\" according to the hearing judge, Respondent violated Rule 1.4 (Communication).\\nThe hearing judge determined that \\\"Respondent violated Rule 1.5 (Fees)[ ] by charging Mr. Tryson an unreasonable flat fee of $5,000.00 for a minuscule amount of work.\\\" Respondent's representation of Mr. Tryson lasted less than 30 days. \\\"While the fee may have been reasonable when agreed to on November 4, 2010, it became unreasonable at the termination of the representation [on December 3, 2010] and in consideration of the actual services performed.\\\"\\nWhen Respondent deposited Mr. Tryson's entire fee into his operating account prior to earning the fee and did not advise Mr. Tryson of the purpose and function of Respondent's trust account, the hearing judge concluded that Respondent violated MLRPC Rule 1.15 (Safekeeping Property) and Md. Rule 16-604 (Trust account \\u2014 Required deposits). Respondent testi fled that he did not intend to violate Rule 1.15, but the hearing judge concluded that whether Respondent \\\"intended to violate the rule is of no consequence.\\\"\\nThe hearing judge further determined that \\\"[continuing to represent clients when [Respondent] knew, or reasonably should have known, that his dependency on narcotics and tranquilizers was interfering with his ability to adequately represent his elients[,]\\\" violated Rule 1.16(a)(2). From the end of 2010, throughout 2011 and into 2012, Respondent regularly did not show up in court when he was scheduled to appear on behalf of clients. Respondent ignored communications from judges as well as clients seeking an explanation.\\nAccording to the hearing judge, Respondent violated Rule 3.4(c) \\\"when he failed to promptly enter his appearance as counsel for Mr. Hendrickson as required by Maryland Rule 4-213(a), and when Respondent failed to appear in court without explanation on December 18, 2010 and March 18, 2011.\\\"\\nAfter considering all the evidence, the hearing judge determined that Respondent violated MLRPC 8.1 when he lied \\\"in a deposition given under oath on August 30, 2012, that he had not used narcotics or tranquilizers since January 2012\\\" when in fact he had admitted to Dr. Bombeck in contradiction that he had been using \\\"on a daily basis as recently as June 2012.\\\" Further, Respondent failed to answer Bar Counsel's request for information about his practice of law.\\nThe hearing judge found by clear and convincing evidence that the totality of Respondent's behavior violated Rule 8.4. Respondent's violations of several other MLRPC were sufficient for the hearing judge to find violations of Rule 8.4(a). Furthermore, the hearing judge determined that Respondent's illegal possession, use and dependency on narcotics and tranquilizers violated Rule 8.4(b). The hearing judge stated \\\"Respondent's repeated disregard for the State of Maryland's criminal laws against the possession and use of controlled dangerous substances prior to January 2012 and from January 2012 to on or about June or July 2012 reflects adversely on his honesty, trustworthiness, and general fitness as a lawyer.\\\" Additionally, by \\\"deceitfully concealing] from the State's Attorney that he failed to comply with three of the four conditions of his stet agreement^]\\\" and \\\"misrepresenting] the length of time that he had been using controlled dangerous substances to Bar Counsel, under oath, during a deposition[ ]\\\" Respondent violated Rule 8.4(c). Also, in his representation of Mr. Hendrickson, Respondent violated 8.4(c) by, among other things, failing to return fees that he had not earned, and breaching his retainer agreement with Mr. Hendrickson when he did not appear for two of the three court dates. Respondent, additionally, violated 8.4(c) by charging both Mr. Hendrickson and Mr. Tryson unreasonable fees for a small amount of work, also in violation of MLRPC 1.5, and improperly depositing client retainer fees in his operating account and using the fees for personal expenses before they were earned, rather than depositing the fees in his trust account, also in violation of MLRPC 1.15.\\nThe hearing judge also determined that Respondent \\\"violated [MLRPC] 8.4(d) on numerous occasions.\\\" These violations included: faffing to report to jury duty four (4) times and pay the $500 fine imposed by the court for the violation; faffing to return phone calls from Judge Souder's chambers and Judge Bollinger's chambers when he failed to appear in court; faffing to respond to \\\"Petitioner's discovery requests and misrepresenting] the length of time he illegally used controlled dangerous substances under oath to Bar Counsel.\\\" These actions constituted \\\"engaging] in conduct that was prejudicial to the administration of justice.\\\"\\nFinally, the hearing judge stated that Respondent \\\"has been in a downward spiral due to drug dependency from the end of 2010 until at least July 2012[,]\\\" which has led to him: \\\"failing] to appear in court on behalf of clients eight (8) times; failing] to appear for jury duty four (4) times; [being in] a car accident for which he was at fault; receiving] four (4) speeding tickets; ple[ading] guilty to negligent driving; [having] his driver's license suspended and subsequently reinstated for work purposes only; and [having] criminal charges against him and failing] to fulfill the stet agreement conditions.\\\" The hearing judge also noted that Respondent did not offer the hearing judge any assurance or information of his sobriety or participation in any treatment program \\\"for any significant length of time.\\\" Lastly, the hearing judge stated that \\\"Respondent has not shown th[e hearing c]ourt that he can effectively represent clients and simultaneously cope with the stress of being a criminal defense attorney.\\\" Consequently, the hearing judge found by clear and convincing evidence that \\\"Respondent's drug dependency has incapacitated him\\\" to perform the duties of a lawyer.\\nSTANDARD OF REVIEW\\n\\\"This Court has original and complete jurisdiction over attorney discipline proceedings,\\\" and \\\"conduces] an independent review of the record.... \\\" Attorney Grievance Comm'n v. Jarosinski, 411 Md. 432, 448, 983 A.2d 477, 487 (2009) (citations and quotations omitted). In accordance with Rule 16- 759(b)(1), we review the hearing judge's conclusions of law de novo. See Rule 16-759(b)(1); Attorney Grievance Comm'n v. McLaughlin, 372 Md. 467, 493, 813 A.2d 1145, 1160 (2002). In our review of the record, the hearing judge's findings of fact will not be disturbed unless clearly erroneous. Rule 16-759(b)(2); Attorney Grievance Comm'n v. Guida, 391 Md. 33, 50, 891 A.2d 1085, 1095 (2006).\\nDISCUSSION\\nOnly Petitioner takes exception to the hearing judge's conclusions of law. Petitioner challenges the hearing judge's conclusion that Respondent violated MLRPC 1.4(a)(3) because he failed \\\"to comply with the reasonable requests of Judges Turnbull and Bollinger to give an explanation for his failure to appear in court on behalf of his clients.\\\" Petitioner maintains that MLRPC 1.4(a)(3) deals with an attorney's communications with his or her client and not his or her communication or lack of communication with the court. We agree. Although Respondent should have responded to the judges' lawful inquiries, his failure to do so did not constitute a violation of MLRPC 1.4(a)(3). We also sustain Petitioner's exception that \\\"Respondent's failure to respond to Judge Turnbull's and Judge Bollinger's requests is clear and convincing evidence that Respondent violated MLRPC 8.4(d) rather than MLRPC 1.4(a)(3).\\\" Respondent's conduct in ignoring Judges Turnbull's and Bollinger's legitimate inquiries showed an obvious lack of respect for judicial authority and was conduct prejudicial to the administration of justice. See Attorney Grievance Comm'n v. Mahone, 398 Md. 257, 268, 920 A.2d 458, 464 (2007).\\nIn addition, Petitioner notes that the hearing judge determined that Respondent violated MLRPC 1.4(a)(3) \\\"by failing to respond to Petitioner's interrogatories, request for production of documents, electronically stored information and property, and motion for sanction.... \\\" Petitioner maintains that the hearing judge also concluded that the failure to respond to discovery and the motion violated MLRPC 8.1(b). According to Petitioner, (1) the failure to adequately communi cate with Bar Counsel cannot be a violation of MLRPC 1.4 as the failure to communicate was not between an attorney and the client; (2) the conduct complained about was not charged in the Petition for Disciplinary or Remedial Action; and (3) the failure to respond to written discovery and a motion for sanctions is not a basis for violation of the Rules of Professional Conduct but may be considered by this Court as an aggravating factor in imposing the appropriate sanction. We sustain the exceptions.\\nRespondent's failure to respond to discovery was never alleged to be a basis for Respondent's misconduct in this case. See Attorney Grievance Comm'n v. Sapero, 400 Md. 461, 487, 929 A.2d 483, 498 (2007) (stating that an attorney may not be found guilty of violating the Rules of Professional Conduct unless that Rule is charged). Nonetheless, we agree with Bar Counsel that the hearing judge's finding, that Respondent failed to respond to Bar Counsel's request for discovery in this case, is a factor that this Court may consider in determining the appropriate sanction.\\nLastly, Petitioner takes exception to the hearing judge's conclusion that Respondent's misrepresentation of facts during his deposition constituted a violation MLRPC 8.1(a), and 8.4(c) and (d). According to Petitioner, although the hearing judge found that Respondent knowingly misrepresented his sobriety to Petitioner, that finding may not be used as a basis for any Rule violation during the course of the disciplinary proceedings. See In Re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968) (quotation omitted) (recognizing that \\\"notice should be given to the attorney of the charges made and [an] opportunity afforded him [or her] for explanation and defen[s]e\\\"). Accordingly, we sustain Bar Counsel's exception to violations of MLRPC 1.4(a)(3), 8.1(b), 8.1(a), 8.4(c) and 8.4(d), to the extent that certain matters were not charged or are not violations of the MLRPC.\\nSANCTION\\nRespondent contends that the appropriate sanction for his misconduct is an indefinite suspension with the right to reapply within 90 days because addiction is the \\\"root cause\\\" of his misbehavior. In his view, the Court's imposition of an indefinite suspension should be conditioned upon Respondent's \\\"total abstinence, testing, monitoring and continuing education.\\\" Further, according to Respondent, an indefinite suspension with the right to reapply within 90 days is appropriate because this is the first grievance brought against him. To the contrary, Petitioner contends that the appropriate sanction is disbarment. Petitioner maintains that we should consider \\\"the extent and severity of Respondent's misconduct, the absence of any mitigation and the presence of multiple aggravating factors,\\\" and the fact that Respondent's \\\"addiction to or dependence upon an intoxicant or drug . has not been proven to be the root cause of the misconduct.\\\" Further, Petitioner emphasizes that Respondent has not acknowledged his misconduct, committed to treatment for his addiction, or made restitution.\\nIn arriving at the appropriate sanction, we are\\nguided by our interest in protecting the public and the public's confidence in the legal profession. The purpose of [disciplinary] proceedings is not to punish the lawyer, but should deter other lawyers from engaging in similar conduct. The public is protected when we impose sanctions that are commensurate with the nature and gravity of the violations and the intent with which they were committed.\\nAttorney Grievance Comm'n v. Guida, 391 Md. 33, 61, 891 A.2d 1085, 1101 (2006) (quoting Attorney Grievance Comm'n v. Davis, 375 Md. 131, 166-67, 825 A.2d 430, 451 (2003)). \\\"[W]e [also] consider the nature of the ethical duties violated in light of any aggravating or mitigating circumstances.\\\" Attorney Grievance Comm'n v. Paul, 423 Md. 268, 284, 31 A.3d 512, 522 (2011). In that regard, we tend to rely on the factors included in Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions:\\n(a) prior disciplinary offenses;\\n(b) dishonest or selfish motive;\\n(c) a pattern of misconduct;\\n(d) multiple offenses;\\n(e) bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency;\\n(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;\\n(g) refusal to acknowledge wrongful nature of conduct;\\n(h) vulnerability of victim;\\n(i) substantial experience in the practice of law;\\n(j) indifference to making restitution.\\n[ (k) illegal conduct, including that involving the use of controlled substances.]\\nAttorney Grievance Comm'n v. Bleecker, 414 Md. 147, 176-77, 994 A.2d 928, 945-46 (2010) (citation omitted).\\nConsideration of relevant mitigating factors, such as whether substance abuse may be the cause of the misconduct, requires a different analysis. \\\"In determining whether the evidence before the hearing judge was legally sufficient to establish a causal relationship between the misconduct and . alcoholism [or addiction], we have at times focused on whether the alcoholism [or addiction] was the 'root cause' of the professional misconduct, ie., whether it was responsible for the misconduct.... \\\" Attorney Grievance Comm'n v. White, 328 Md. 412, 418, 614 A.2d 955, 959 (1992) (citation omitted). In cases involving misappropriation of trust or client funds where alcoholism [or addiction] was offered as a mitigating circumstance, we have said that \\\"a sanction less severe than disbarment may be imposed if the evidence discloses that the alcoholism [or addiction], to a substantial extent, was the responsible, the precipitating, the root cause of the misappropriation.\\\" White, 328 Md. at 419, 614 A.2d at 959. Accordingly, in cases where alcoholism or addiction is allegedly implicated \\\"[a] sanction less than disbarment, to be justified, must therefore demonstrate more than that the attorney is an alcoholic [or addict]----\\\" White, 328 Md. at 418-21, 614 A.2d at 959-60. We note, however, that where there are a combination of factors contributing to an attorney's misconduct, in addition to alcohol or drags, we have been more critical of the substance abuse. In Attorney Grievance Comm'n v. Williams, 335 Md. 458, 472-73, 644 A.2d 490, 497 (1994), a case involving an attorney who was addicted to cocaine and his addiction affected his performance as an attorney, a majority of the Court of Appeals imposed disbarment based, in part, upon the findings of the hearing judge that he was \\\"not convinced that the misconduct was solely caused by the [attorney's use of the controlled substance.\\\" At the hearing, in the case, there was conflicting expert testimony from two psychiatrists about whether the attorney's drug abuse alone caused his misconduct. Williams, 335 Md. at 473, 644 A.2d at 497. We concluded that the hearing judge was \\\"free\\\" to believe or disbelieve each expert, and that although both experts testified that \\\"cocaine abuse impaired [the attorney's] ability to practice law[,][t]his . is not the same as saying that cocaine abuse caused him to lie, steal or neglect his clients.\\\" Id.\\nIn Attorney Grievance Comm'n v. Kenney, 339 Md. 578, 664 A.2d 854 (1995), the hearing judge found that Kenney's \\\"alcoholism was, to a substantial extent, 'the responsible, the precipitating, the root cause' of [his] misappropriation of trust and client funds.\\\" 339 Md. at 586, 664 A.2d at 858. We imposed a sanction of indefinite suspension, rather than disbarment. In doing so, we \\\"recognizefd] that alcoholism is a serious medical condition and we will be more sympathetic to attorneys who recognize their need for assistance and seek to rehabilitate themselves before their transgressions are discovered.\\\" Kenney, 339 Md. at 595, 664 A.2d at 862. In addition, we cautioned attorneys that \\\"absent truly compelling circumstances, alcoholism should not provide mitigation where an attorney has been found to have committed a violation which would ordinarily warrant disbarment. Because of our need to protect the public, the severity of such violations should not be denigrated because of an attorney's alcoholism.\\\" Kenney, 339 Md. at 591, 664 A.2d at 860. We noted that \\\"our duty to protect the public is strong and we cannot permit alcoholism to alleviate an attorney's responsibility to recognize the wrongfulness of his or her actions and to honor his or her commitments to his or her clients.\\\" Kenney, 339 Md. at 595, 664 A.2d at 862.\\nIn Attorney Grievance Comm'n v. Bakas, 323 Md. 395, 593 A.2d 1087 (1991), we made clear that \\\"[m]isappropriation of funds by an attorney is an act infected with deceit and dishonesty and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.\\\" 323 Md. at 403, 593 A.2d at 1091 (citation omitted). In Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001), we expounded upon this principle and held:\\n[I]n cases of intentional dishonesty, misappropriation cases, fraud, stealing, serious criminal conduct and the like, we will not accept, as \\\"compelling extenuating circumstances,\\\" anything less than the most serious and utterly debilitating mental or physical health conditions, arising from any source that is the \\\"root cause\\\" of the misconduct and that also result in an attorney's utter inability to conform his or her conduct in accordance with the law and with the [MLRPC]. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of stealing, dishonesty, fraudulent conduct, the intentional misappropriation of funds or other serious criminal conduct, whether occurring in the practice of law, or otherwise.\\nVanderlinde, 364 Md. at 413-14, 773 A.2d at 485 (emphasis omitted) (citation omitted).\\nIn the present case, the hearing judge found that Respondent, in his representation of six (6) clients, violated MLRPC 1.1; 1.2; 1.3; 1.4(a) and (b); 1.5; 1.15(a) and (c); 1.16(a) and (d); 3.4(c); 8.1; 8.4(a), (b), (c) and (d); and Md. Rule 16-604. In addition, the hearing judge found that, at least since January 2012, Respondent has been incapacitated due to addiction to or dependence upon an intoxicant or drug. The hearing judge, however, did not find that the root cause of Respondent's misconduct was drug addiction. In that regard, Judge Young determined that Respondent's addiction was not a mitigator. As this Court emphasized in Vanderlinde, to establish a sufficiently reduced or impaired mental capacity, alcoholism, or addiction as the root cause of attorney's misconduct:\\n[T]here . needs to be almost conclusive, and essentially uncontroverted evidence that would support a hearing judge's finding not only that the attorney had a serious and debilitating mental condition, but that the mental condition, in a sustained fashion, affected the ability of the attorney in normal day to day activities, such that the attorney was unable to accomplish the least of those activities in a normal fashion.\\nVanderlinde, 364 Md. at 418-19, 773 A.2d at 488. The evidence in this case did not support such a finding. Therefore, because the standard adopted in Vanderlinde was not met, Respondent's impairment \\\"[wa]s not the root cause of the misconduct,\\\" as a matter of law. Id.\\nRespondent's misappropriation of client funds, abandonment of clients, illegal activity (including the purchase, possession and use of controlled dangerous substances) and his denial about the serious nature of his drug abuse are a combination of aggravating factors that do not warrant a sanction less than disbarment. Notably, Respondent's alleged addiction, as grounds for mitigation of his misconduct, was determined by the hearing judge to be insufficient. Judge Young specifically found that \\\"Respondent sought a variety of drug treatment programs but did not commit to any of them.\\\" According to the hearing judge, Respondent's \\\"efforts to seek treatment did not excuse him from violating the aforementioned [MLRPC].\\\" The healing judge noted that \\\"[ijnstead of seeking treatment full time, [Respondent] chose to take on at least six (6) additional clients, who were all facing criminal charges, and render inadequate legal services.\\\" Further, the hearing judge found that Respondent \\\"intend[ed] to miss court on eight (8) separate occasions and 'hurt' his clients by rendering inadequate legal services and refusing to refund unearned fees.\\\"\\nMoreover, as Bar Counsel pointed out in his recommendation for a sanction, Respondent's misconduct warrants disbarment in light of eight (8) of the aggravating factors found in Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions. The evidence shows that Respondent was dishonest and selfish, (Standard 9.22(b)) by taking \\\"full fees, up front, from [three (3) clients] and then failing] to adequately represent [the] clients when he failed to appear for [their] trials.\\\" \\\"Second and third, Respondent has displayed a pattern of misconduct and multiple offenses [ (Standard 9.22(c) and (d)) ] . [which] has impacted every facet of his practice and personal life.... \\\" Fourth, as the hearing judge noted, \\\"Respondent 'knowingly made a false statement of material fact' during his deposition on August 30, 2012\\\" with respect to his sobriety (Standard 9.22(f)). \\\"Fifth and sixth, Respondent has refused to acknowledge the wrongful nature of his conduct and has displayed an indifference to making restitution [ (9.22(g) and (j)) ].\\\" Seventh, Respondent's victims were clients charged with criminal offenses and were vulnerable (9.22(h)) because Respondent abandoned them and, in some cases, thereby \\\"forced [them] to navigate the criminal justice system without any representation.\\\" As to the eighth factor, Respondent engaged in serious criminal conduct as a result of his \\\"purchase, possession and use of controlled dangerous substances [ (9.22(k)) ].\\\"\\nIn this case, in the absence of compelling extenuating mitigation, disbarment is the appropriate sanction in order to protect the public and the public's confidence in the legal system. See Attorney Grievance Comm'n v. Guida, 391 Md. 33, 62, 891 A.2d 1085, 1102 (2006) (holding that an attorney's \\\"severe major depression . (and related sequelae) was not so great that it satisfied the Vanderlinde threshold for mitigation of the sanction for his violations of the [Maryland Lawyers' Rules of Professional Conduct]\\\").\\nIT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST RICHARD VALENTINE PATTON, III.\\n. Maryland Rule 16\\u2014751 (a)(1) provides: \\\"Commencement of disciplinary or remedial action. (1) Upon approval or direction of Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals.\\\"\\n. Maryland Rule 16-754(a) states, in part: \\\"Within 15 days after being served with the petition, unless a different time is ordered, the respondent shall file with the designated clerk an answer to the petition and serve a copy on the petitioner.\\\"\\n. Notably, Md. Rule 16-754(c) permits the court to treat failure to file a timely answer as a default and Md. Rule 2-323(e) permits a court to treat averments in a pleading as admitted unless denied.\\n. MLRPC 1.1 provides: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.\\n. MLRPC 1.2 provides in pertinent part: (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testily.\\n. MLRPC 1.3 provides: A lawyer shall act with reasonable diligence and promptness in representing a client.\\n. MLRPC 1.4 provides in part: (a) A lawyer shall: (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers' Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.\\n. MLRPC 1.5 provides in part: (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.\\n. MLRPC 1.15 provides in part: (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the lawyer and shall be preserved for a period of at least five years after the date the record was created, (c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the lawyer's own benefit only as fees are earned or expenses incurred.\\n. Md. Rule 16-604 provides: Except as otherwise permitted by rule or other law, all funds, including cash, received and accepted by an attorney or law firm in this State from a client or third person to be delivered in whole or in part to a client or third person, unless received as payment of fees owed the attorney by the client or in reimbursement for expenses properly advanced on behalf of the client, shall be deposited in an attorney trust account in an approved financial institution. This Rule does not apply to an instrument received by an attorney or law firm that is made payable solely to a client or third person and is transmitted directly to the client or third person.\\n. MLRPC 1.16(a)(2) provides in part: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;\\n. MLRPC 3.4(c) provides: \\\"A lawyer shall not: . (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]\\\"\\n. MLRPC 8.1 provides in part: An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact[J\\n. MLRPC 8.4 provides in part: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers' Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice!.]\"}"
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+"{\"id\": \"3723062\", \"name\": \"The METROPOLITAN WASHINGTON ORTHOPAEDIC ASSOCIATION, CHARTERED, et al. v. Christina L. CERVIERI\", \"name_abbreviation\": \"Metropolitan Washington Orthopaedic Ass'n v. Cervieri\", \"decision_date\": \"2011-04-12\", \"docket_number\": \"No. 111\", \"first_page\": \"591\", \"last_page\": \"591\", \"citations\": \"418 Md. 591\", \"volume\": \"418\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:38:24.487834+00:00\", \"provenance\": \"CAP\", \"judges\": \"BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.\", \"parties\": \"The METROPOLITAN WASHINGTON ORTHOPAEDIC ASSOCIATION, CHARTERED, et al. v. Christina L. CERVIERI.\", \"head_matter\": \"17 A.3d 142\\nThe METROPOLITAN WASHINGTON ORTHOPAEDIC ASSOCIATION, CHARTERED, et al. v. Christina L. CERVIERI.\\nNo. 111,\\nSept. Term, 2010.\\nCourt of Appeals of Maryland.\\nApril 12, 2011.\\nKevin A. Dunne (Matthew T. Vocci of Ober, Kaler, Grimes & Shriver, Baltimore, MD), on brief, for petitioners.\\nJames R. Hammerschmidt (Paley, Rothman, Goldstein, Rosenberg, Eig & Cooper, Chartered, Bethesda, MD), on brief, for respondent.\\nDeborah Thompson Eisenberg, Esq., University of Maryland School of Law, Workers\\u2019 Rights Clinic, Adam Farra, Esq., Baltimore, MD, Julie Glass Martin-Korb, Esq., Rock-ville, MD, for Amicus Curiae brief of Maryland Employment Lawyers Association, Metropolitan Washington Employment Lawyers Association and Public Justice Center in Support of Respondent.\\nBELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.\", \"word_count\": \"170\", \"char_count\": \"1158\", \"text\": \"PER CURIAM ORDER.\\nThe petition for writ of certiorari in the above-entitled case having been granted and argued, it is this 12th day of April, 2011,\\nORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.\"}"
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+"{\"id\": \"4001908\", \"name\": \"Derek T. STEVENS v. Yoko TOKUDA\", \"name_abbreviation\": \"Stevens v. Tokuda\", \"decision_date\": \"2014-02-25\", \"docket_number\": \"No. 2724\", \"first_page\": \"155\", \"last_page\": \"178\", \"citations\": \"216 Md. App. 155\", \"volume\": \"216\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:34:41.243398+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Derek T. STEVENS v. Yoko TOKUDA.\", \"head_matter\": \"85 A.3d 321\\nDerek T. STEVENS v. Yoko TOKUDA.\\nNo. 2724,\\nSept. Term, 2011.\\nCourt of Special Appeals of Maryland.\\nFeb. 25, 2014.\\nDavid P. Kennedy (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.\\nNo argument on behalf of the appellee.\\nPanel: DEBORAH S. EYLER, WOODWARD, and ZARNOCH, JJ.\", \"word_count\": \"6956\", \"char_count\": \"42025\", \"text\": \"WOODWARD, J.\\nThe Circuit Court for Carroll County found Derek Stevens, appellant, in constructive civil contempt for failure to pay child support to Yoko Tokuda, appellee, on October 18, 2010. The circuit court did not impose a sanction, but ordered appellant, as a purge provision, to pay $800.00 per month toward his child support arrearage, as well as provide the court and appellee's attorney with his job search information on a regular basis. When appellant failed to comply with the purge provision, the court ultimately imposed 179 days of incarceration as a sanction in an order dated February 2, 2012.\\nDuring the same time period, appellant filed a motion to modify his child support obligation. A hearing was held before a master, who recommended that appellant's child support payments be reduced from $1,000.00 per month to $708.00 per month, notwithstanding a finding that appellant was currently unemployed. Appellant filed exceptions, and the court sustained those exceptions in part, but did not decide the new amount for appellant's child support payments. About six months later the court again considered appellant's motion to modify child support and decided to remand the motion to the master for the purpose of taking additional evidence. The remand order was contained in the same February 2, 2012 order that imposed the sanction of incarceration for appellant's contempt. This appeal followed.\\nOn appeal, appellant presents five questions, which we have re-phrased into three:\\n1. Did the circuit court err in finding appellant in constructive civil contempt and imposing a purge provision of future acts in its order of October 18, 2010?\\n2. Did the circuit court err by ordering appellant incarcerated for 179 days without a purge provision in its February\\n2, 2012 order and also err by denying appellant's petition for writ of habeas corpus seeking immediate release from incarceration?\\n3. Did the circuit court err by remanding appellant's motion to modify child support to a master for further evidence?\\nAs we will explain, (1) we do not reach question 1 because of a lack of jurisdiction, (2) we vacate the balance of the period of incarceration imposed on appellant, and (3) we affirm the February 2, 2012 order of the circuit court in all other respects.\\nBACKGROUND\\nAppellant and appellee are the parents of a child, Raiden, who was born January 14, 1999. On August 27, 2009, the circuit court entered a judgment of absolute divorce between the parties. As part of the divorce judgment, the court ordered appellant to pay $1,000.00 per month in child support to appellee.\\nI. Contempt\\nOn March 8, 2010, appellee filed a Petition for Contempt, alleging in part that appellant had failed to make the required child support payments in violation of the circuit court's order. A hearing was held on appellee's petition on October 14, 2010, at the conclusion of which the court, among other things, found appellant in contempt for failure to pay the court-ordered child support payments. The court did not impose a sanction for appellant's contempt, but did include in its order dated October 18, 2010, the following purge provisions:\\nORDERED, that [appellant] shall pay $300.00 per month to purge the present child support arrearage, and it is further,\\nORDERED, that on the first day of each month, beginning on December 1, 2010 and extending until [appellant] is employed on a full-time basis, [appellant] shall provide this Court, and [appellee's] attorney, with a log containing the following information: the dates of any and all job interviews; a list of the names and addresses of any and all employers which [appellant] interviews with or submits resumes and/or applications to; the dates that any interviews take place or that applications and/or resumes are submitted; and any and all information regarding the status of any pending applications for employment....\\nIn its October 18, 2010 order the circuit court also scheduled a review hearing on appellee's petition for contempt for February 2011, which was subsequently postponed to March 17, 2011. Following a hearing on March 17, 2011, the court issued an order dated March 18, 2011, in which the court found that appellant was in contempt of the purge provisions of the October 18, 2010 order. The court expressly deferred ruling on any sanction for appellant's contempt, but did modify the previous purge provisions to require appellant's job search information be submitted to the court and to appellee's counsel on a weekly, instead of monthly, basis and to advise the court and appellee's counsel of appellant's employment within forty-eight hours of obtaining the same.\\nOn January 5, 2012, appellee filed a Motion to Show Cause and Impose Sanctions, in which appellee alleged that appellant violated the March 18, 2011 order by failing to submit any job search information after July 2011. Appellee requested that the court impose sanctions on appellant.\\nOn February 2, 2012, the circuit court held a hearing on appellee's January 5 motion to show cause. At the conclusion of the hearing on February 2, 2012, the court issued an order in which it found \\\"by clear and convincing evidence that [appellant] has failed to comply with this Court's purge provisions of March 18, 2011 having the present ability to do so.\\\" The court then imposed on appellant the following sanction for his contempt:\\nORDERED, that this Court imposes a sanction of One Hundred and Seventy-Nine (179) days to the Carroll County Detention Center; and it is further,\\nORDERED, that this Court orders a furlough from the Carroll County Detention Center of five (5) days in order to give [appellant] the opportunity to find employment; and it is further,\\nORDERED, that on [appellant's] five (5) furlough days, [appellant] shall be allowed to leave the Carroll County Detention Center at 9 a.m.; and it is further,\\nORDERED, that on [appellant's] five (5) furlough days, [appellant] shall return to the Carroll County Detention Center by 5 p.m.; and it is further,\\nORDERED, that [appellant's] employment search is confined to Carroll County, Maryland, Howard County, Maryland and Baltimore County, Maryland; and it is further, ORDERED, that if [appellant] finds employment within the five (5) furlough days, [appellant] shall provide to the Court actual documentation that he has obtained employment.\\nAs a result of the trial court's February 2, 2012 order, appellant was incarcerated. Appellant noted an appeal to this Court on February 29, 2012. After failing to obtain release from incarceration via either bail pending appeal or a petition for writ of habeas corpus, appellant moved this Court to stay the judgment of the circuit court and to release him from incarceration. This Court granted appellant's motion, and he was released on March 29, 2012.\\n2. Modification of Child Support\\nOn December 17, 2010, while the litigation of appellee's petition for contempt was ongoing, appellant filed a motion to modify child support. In his motion appellant claimed that he was then unemployed and had been unable to maintain employment since the Fall of 2008. Appellant supported his claim by reference to his testimony at the October 14, 2010 hearing on appellee's petition for contempt.\\nOn March 31, 2011, a hearing was held before a master on appellant's motion to modify child support. The master issued his report and recommendations on April 8, 2011, in which he found, inter alia, that appellant was currently unemployed, but had the present ability to earn $50,000.00 per year. Based on that potential income, the master recommended a modification of appellant's child support payments from $1,000.00 per month to $708.00 per month. Appellant filed exceptions to the master's report, challenging, among other things, the finding that he could presently earn $50,000.00 per year. Appellee did not oppose or otherwise respond to appellant's exceptions. On August 30, 2011, the circuit court sustained appellant's exceptions in part. In a Memorandum Opinion, the court explained its decision, in relevant part:\\nMaster Constantinides found that [appellant] has been unemployed since 2009. The Master stated that [appellant] has tried to find work and he has been seeking positions with lower skill levels than he possesses and with lower pay. The Master did indicate that [appellant] did make $75,000.00 when he worked as a subcontractor with Lockheed Martin. However, the Master did not make a specific finding that [appellant] has voluntarily impoverished himself. [Appellant], by his employment logs and testimony, appeared to be seeking employment in the Washington D.C. area, as well in other geographic locations. Since the Master did not make a finding that [appellant] has voluntarily impoverished himself, the Master could not determine what [appellant's] potential income could be. The Master would have to determine his support obligation by using [appellant's] actual income at the time which was $0.00. However, it appears [appellant] has recently secured employment. As soon as [appellant] is able to document his income to this Court, this Court will recalculate his support obligations based on his new actual income.\\nBased on the Memorandum Opinion, the trial court issued an Order dated August 30, 2011 that simply \\\"ORDERED, that [appellant's] Exceptions be, and are hereby, SUSTAINED in part.\\\" No further action was taken by the court at that time regarding appellant's child support obligation as a result of appellant's exceptions to the master's report and recommendations.\\nAppellant's motion to modify child support was considered again by the circuit court at a hearing on February 2, 2012. At that hearing, appellee's counsel reminded the court that it had sustained appellant's exceptions \\\"based on the fact that the Master did not find that before he imputed any income to [appellant] that he did not make a finding of fact that [appellant] was voluntarily impoverishing himself.\\\" Appellee's counsel advised the court: \\\"My position would be that you send the case back to the Master for evidence on whether or not I can prove\\u2014[appellee] can prove that [appellant] has voluntarily impoverish[ed] himself.\\\" In other words, according to appellee's counsel, a remand was necessary to \\\"flesh out the facts as best we can to determine what the appropriate amount of child support is because it is really kind of inconceivable that [appellant] just says well, you know, my child support obli gation is zero because I make no money.\\\" The trial court agreed, and in its February 2, 2012 order directed\\nthat this matter be, and is hereby, REMANDED to the Master on the issues that the Court sustained [appellant's] Exceptions on for the purpose of taking additional evidence and testimony on those particular issues[.]\\nAs previously indicated, appellant noted a timely appeal from the court's February 2, 2012 order. Additional facts will be set forth as necessary to our discussion of the issues presented in the instant appeal.\\nDISCUSSION\\n1. The Circuit Court's October 18, 2010 Contempt Order\\nAppellant contends that the circuit court erred in holding appellant in contempt in its October 18, 2010 order. In support of this assertion, appellant argues that \\\"the evidence before the [circuit] Court at the October 14, 2010 hearing was such that the Court was clearly erroneous\\\" in finding appellant in contempt after concluding that appellant did not sustain his \\\"burden of showing, by a preponderance of the evidence, that he was unable to pay more than he did pay.\\\" Appellant further contends that the October 18 order \\\"was improper for the [ ] reason that it purported to impose a purge provision requiring that [appellant] take actions into the indefinite future in order to purge the contempt.\\\" Appellant claims that \\\"[s]etting [ ] open-ended tasks as purge provisions implicitly to avoid the future immediate imposition of a sanction of incarceration was not a lawful provision of a civil contempt order.\\\"\\nWe do not reach appellant's contentions, however, because no timely appeal was taken from the circuit court's October 18, 2010 contempt order. Appellant did not file an appeal until February 29, 2012. Ordinarily, an appeal will only lie from a \\\"final judgment.\\\" See Md.Code (1973, 2006 Repl. Vol.), \\u00a7 12-301 of the Courts and Judicial Proceedings Article (\\\"CJ II\\\"). Nevertheless, \\u00a7 12-301 \\\"does not apply to appeals in contempt cases, which are governed by \\u00a7 12-304 and 12-402\\\" of the Article. CJ II \\u00a7 12-302(b). \\\" 'A contempt proceeding, even though it may grow out of or be associated with another proceeding, is ordinarily regarded as a collateral or separate action from the underlying case and as separately appealable, with appellate review normally limited to the contempt order itself.' \\\" Blake v. Blake, 341 Md. 326, 332, 670 A.2d 472 (1996) (quoting Unnamed Attorney v. Attorney Grievance Comm'n, 303 Md. 473, 483, 494 A.2d 940 (1985)). The time period for filing an appeal from a finding of contempt is thirty days after the entry of the order making that finding. See In re Ariel G., 153 Md.App. 698, 704 & n. 1, 837 A.2d 1044 (2003) (citing CJ \\u00a7 12-304(a) (1973, 1998 Repl. Vol., 2001 Cum.Supp.); Md. Rule 2\\u2014601(b); Md. Rule 8-202(a)), ajfd, 383 Md. 240, 858 A.2d 1007 (2004). Even if no party challenges the appealability of an order, appealability is a jurisdictional issue that we must resolve sua sponte. See Johnson v. Johnson, 423 Md. 602, 605-06, 32 A.3d 1072 (2011).\\nAt oral argument before this Court, appellant asserted that, because no sanction was imposed in the October 18, 2010 order, he had a right to appeal the contempt order at the time that the sanction was imposed on February 2, 2012, citing Bryant v. Howard County Department of Social Services, 387 Md. 30, 874 A.2d 457 (2005), as authority. Appellant's reliance on Bryant, however, is misplaced.\\nIn Bryant, the Court of Appeals faced the question of \\\"whether an appeal lies from a contempt finding that is unaccompanied by any sanction.\\\" Id. at 41, 874 A.2d 457. The Court traced the historical evolution of Maryland jurisprudence on the appealability of contempt orders. Id. at 42-45, 874 A.2d 457. Specifically, the Court reiterated that its dictum in Lynch v. Lynch, 342 Md. 509, 677 A.2d 584 (1996), that \\\" 'a finding of contempt, [even] where there is no possibility of enforcing compliance with the court order to which it relates, . is a form of punishment,' \\\" remained good law. Id. at 45, 677 A.2d 584 (emphasis omitted) (quoting Lynch, 342 Md. at 529, 677 A.2d 584). The Court held that, \\\"[e]ven if we were not to regard [a mere contempt finding] as punishment, the plain wording and a common sense reading of [CJ] \\u00a7 12-304 indicate an intent to permit an appeal from the adjudication of contempt itself, without regard to whether an immediate sanction is imposed.\\\" Id. What the Bryant Court did not say, contrary to appellant's argument, is that a party could wait to appeal a contempt order until a sanction was imposed.\\nOur conclusion on this issue is further compelled by our opinion in In re Ariel G., 153 Md.App. 698, 837 A.2d 1044. In Ariel G., the circuit court entered an order finding the appellant in contempt on August 6, 2001. Id. at 701, 837 A.2d 1044. Following subsequent hearings, the circuit court entered three other orders\\u2014on January 16, 2002, June 26, 2002, and September 29, 2002\\u2014in each of which it found that the appellant had not yet purged her contempt. Id. at 701-03, 837 A.2d 1044. The appellant filed an appeal from only the June 26, 2002 order. Id. at 701, 703, 837 A.2d 1044. We held that we did not have jurisdiction over the August 6, 2001, January 16, 2002, or September 29, 2002 orders, because \\\"[t]he period for filing an appeal expired thirty days after that order was entered.\\\" Id. at 704 and n. 1, 837 A.2d 1044 (citing CJ \\u00a7 12-304(a) (1973, 1998 Repl. Vol., 2001 Cum.Supp.); Md. Rule 2-601(b); Md. Rule 8-202(a)).\\nIn the case sub judice, the circuit court issued a contempt order on October 18, 2010 and imposed the sanction of incarceration in an order dated February 2, 2012. The October 18, 2010 order was not formally entered on the docket until October 22, 2010. Appellant could have filed a timely appeal any time within thirty days after that date, i.e., on or before November 21, 2010. See Md. Rule 8-202(a) (requiring an appeal to be brought within thirty days of the entry of an order or judgment). The instant appeal was not filed, however, until February 29, 2012, well over a year later. Thus, although we have jurisdiction over the February 2, 2012 order, we do not have jurisdiction over the October 18, 2010 order.\\n2. The Circuit Court's February 2, 2012 Order of Incarceration\\nAppellant asserts that the circuit court erred by ordering the punitive sanction of 179 days incarceration in the Febru ary 2, 2012 order, because the order did not give appellant \\\"the present ability to purge the contempt.\\\" Appellant argues that \\\"[ijncarceration for constructive civil contempt is available only to compel immediate performance of an act, such as payment of a sum of money, which the Court finds the obligor is presently able to perform, but contumaciously refuses to.\\\" We agree.\\n\\\"In support enforcement actions, contempt proceedings are guided by Maryland Rule 15-207.\\\" Jones v. State, 351 Md. 264, 272, 718 A.2d 222 (1998). The issue that appellant presents requires this Court to undertake a legal interpretation of Rule 15-207. Consequently, we review this issue de novo. See Rawlings v. Rawlings, 362 Md. 535, 555 n. 19, 766 A.2d 98 (2001) (noting that issues of interpretation of Maryland Rules are treated the same as statutory interpretation issues).\\nConstructive civil contempt in a support enforcement action is governed by Maryland Rule 15-207(e). Before a court may make a finding of contempt, the party seeking relief must prove \\\"by clear and convincing evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing.\\\" Md. Rule 15-207(e)(2). If the court concludes that the party has met its burden of proof, the burden shifts to the alleged contemnor to prove\\nby a preponderance of the evidence that (A) from the date of the support order through the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make payment, or (B) enforcement by contempt is barred by limitations as to each unpaid spousal or child support payment for which the alleged contemnor does not make the proof set forth in subsection (3)(A) of this section.\\nMd. Rule 15\\u2014207(e)(3). If the alleged contemnor is unable to meet his burden, the court is instructed to make a finding of constructive civil contempt and must issue a written order. See Md. Rule 15-207(e)(4).\\nIn issuing a constructive civil contempt order, the trial court must specify \\\"(A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged.\\\" Id. Rule 15\\u2014207(e)(4) further requires that, \\\"[i]f the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future times and perform specified acts to enable the contemnor to comply with the direction to make payments.\\\" Id. Of particular importance to the case sub judice,\\nthe court may specify imprisonment as the sanction if the contemnor has the present ability to purge the contempt.\\nIf the contemnor does not have the present ability to purge the contempt, an example of a direction to perform specified acts that a court may include in an order under subsection (e)(4) is a provision that an unemployed, able-bodied contemnor look for work and periodically provide evidence of the efforts made. If the contemnor fails, without just cause, to comply with any provision of the order, a criminal contempt proceeding may be brought based on a violation of that provision.\\nMd. Rule 15-207 committee note (emphasis added). In this regard, the Court of Appeals has counseled that, \\\"unless and until the contemnor has been 'given an opportunity to show that he ha[s] neither the estate nor the ability to pay his obligation and fail[s] to make such a showing, he should not [be] incarcerated.' \\\" Jones, 351 Md. at 276, 718 A.2d 222 (alterations in original) (quoting Johnson v. Johnson, 241 Md. 416, 420, 216 A.2d 914 (1966)).\\nMaryland law has long recognized a clear distinction between civil contempt and criminal contempt. Whereas a criminal probationer found to be in contempt may be immediately incarcerated, \\\"[imprisonment of the civil contemnor is conditional. It is based entirely upon the contemnor's continued defiance, and thus, the civil contemnor is said to hold the keys to the jailhouse door, and may terminate the incarceration any time he or she satisfies the purge provision.\\\" Id. at 277, 718 A.2d 222 (internal citations and quotation marks omitted). To that end, a court may not impose incarceration as a sanction for civil contempt when the defendant is unable to meet the purge condition in time to avoid that incarceration. See Arlington v. Dep't of Human Res., 402 Md. 79, 107, 935 A.2d 432 (2007).\\nIn our view, Arrington is dispositive of this issue. There, the named appellant was bound by orders to pay child support to two mothers for his three children. Id. at 82, 935 A.2d 432. The appellant had had intermittent periods of employment but was not consistently earning a full salary. Id. at 83, 935 A.2d 432. The circuit court found that the appellant had the present ability to work, that he did work during the relevant period, and that he willfully failed to comply with the court's support orders; as a result, the court held the appellant in civil contempt. Id. at 84, 935 A.2d 432. The court then directed appellant to carry out future acts\\u2014 namely, that he pay a lump sum on each arrearage and continue to pay child support. Id. At a subsequent hearing, one of the mothers informed the court that the appellant had failed to make the lump sum payments required under the court's order. Id. The court then decided, in response to this violation, to incarcerate the appellant and place him immedi ately on work release. Id. at 84-85, 935 A.2d 432. The court set the work release itself as the purge provision. Id. at 85, 935 A.2d 432. At a later hearing, the appellant's attorney objected to appellant's incarceration, arguing that it was improper, because the court had not made a finding that the appellant was presently able to meet the purge provision to avoid incarceration. Id. at 85, 935 A.2d 432.\\nThe Court of Appeals vacated the circuit court's order of incarceration. Id. at 107, 935 A.2d 432. The Court initially noted that the \\\"[pjresent inability to comply with the support order or to meet a purge established by the court . does not preclude a finding of contempt.\\\" Id. at 97, 935 A.2d 432 (citing Md. Rule 15\\u2014207(e)(2)). The Court then carefully distinguished between merely making a finding of contempt based on the present inability to pay, which is permissible, from ordering imprisonment based on the present inability to pay, which is not. See id. at 97-98, 935 A.2d 432. Because the circuit court's order made it impossible for the appellant to immediately carry out the purge provision\\u2014and thus avoid incarceration\\u2014the Court held that the work-release condition was impermissible. See id. at 107, 935 A.2d 432. The Court then discussed in detail situations where the court requires future acts as a purge condition, rather than the payment of a sum of money:\\nIf unemployment is the problem, the court, upon determining the cause, may, under Rule 15-207(e)(4), enter reasonable and specific directives to deal with it. The court may order the defendant to pursue employment opportunities in a specific manner. It may order the defendant to pursue necessary education or a diploma, degree, certificate, or license that may be necessary or helpful in making the defendant eligible for meaningful employment. It may direct the defendant to seek a form of treatment for health or addiction problems that has a reasonable chance of dealing with the problem sufficiently to qualify the defendant for meaningful employment. In all instances, the directives must be specific and they must be reasonable. The programs must be available and affordable to the defendant, and they must be relevant to the objective. The court may order the defendant to report periodically, and it may monitor compliance. It may modify the requirements as circumstances warrant. If it appears that the defendant is wilfully not complying with the directives, the court may cause a criminal contempt proceeding to be filed, aimed at punishing defiance of the directives. If, as a result of that defiance, the underlying support order remains in arrears, the State's Attorney, if so inclined, may pursue a criminal action under Family Law Article, \\u00a7 10-203.\\nId. at 106, 935 A.2d 432 (emphasis added) (footnote omitted).\\nIn the instant case, the circuit court's February 2, 2012 contempt order was legally deficient. Although the court could properly require that appellant periodically file job search logs, it erred by not affording appellant the opportunity at the February 2 hearing to purge his contempt prior to incarcerating him. As the Court of Appeals has explained:\\nSanctions for contempt ordinarily fall into three general categories: (1) determinate sanctions, which are criminal sanctions, such as a jail sentence of one year; (2) coercive sanctions, which are civil sanctions, such as imprisonment until the contemnor complies with an order of the court or a fine to be applied until the contemnor complies; and (3) remedial sanctions, such as a civil fine payable to the plaintiff to compensate the plaintiff for losses suffered as a result of the contemnor's non-compliance.\\nJones, 351 Md. at 278, 718 A.2d 222.\\nIn civil contempt proceedings like in the case sub judice, \\\"'the sanction is coercive and must allow for purging.' \\\" Dodson v. Dodson, 380 Md. 438, 448, 845 A.2d 1194 (2004) (quoting State v. Roll, 267 Md. 714, 728, 298 A.2d 867 (1973)); see also Md. Rule 15-207(e)(4)(C). Indeed, the circuit court recognized the importance of this purge requirement, when it stated the following during the February 2 hearing:\\nTHE COURT: Let's say that . you still owe something.\\n[APPELLANT]: Yes, but also this doesn't just go about\\u2014 just that\\u2014this finds facts that basically says I don't have the ability to pay, okay? I\\u2014I\\u2014the original reason for me stopping\\u2014\\nTHE COURT: I understand. That is why I set future acts, [appellant]\\u2014\\n[APPELLANT]: Yes.\\nTHE COURT:\\u2014because if I say to somebody your purge provision is to pay as ordered or your purge provision is to pay X number of dollars in a lump sum by a certain date, then many times someone will say, \\\"Well, Judge I'm not working. I can't pay\\\" and I have to be able to find, in order to impose a sanction, that there is an ability to pay, okay?\\nSo what I did in this case was set certain acts as purge provisions. That is providing certain records, information, a log as a purge provision. The real issue is why did not you have the ability to do that?\\n(Emphasis added).\\nWhen considering the imposition of the sanction of incarceration, the issue is not why appellant was unable to submit the log in the past, but whether appellant was presently able to submit a log, because incarceration requires a present ability to comply with the purge condition and a willful choice by appellant not to comply in spite of that ability. See Md. Rule 15-207(e)(4). Furthermore, the court's imposition on appellant of a five-day work release program while he was incarcerated is identical in its essential features to the program that was expressly disallowed by the Arrington Court. See 402 Md. at 85-86, 107, 985 A.2d 432.\\nThere was nothing that appellant could do under the court's order of February 2, 2012 to prevent himself from being incarcerated on that day. Appellant was thus caught in an impermissibly punitive cycle: in order to purge the contempt, he was required to be in a work release program; however, in order to be in the work release program, he was required to be incarcerated. Requiring incarceration as a precondition to purging a contempt order is erroneous under Rule 15-207(e).\\nAlternatively, the circuit court could have sent the matter to the Office of the State's Attorney, which could then, in its discretion, initiate subsequent criminal contempt proceedings. See Md. Rule 15-207 committee note (noting that if the contemnor lacks the present ability to purge the contempt and then fails to comply with future court-ordered specified acts, \\\"a criminal contempt proceeding may be brought based on a violation of that provision\\\"). Although we sympathize with the circuit court when it was faced with the dilemma of multiple instances of contumacious behavior on the part of appellant, the court could not do what it did in this case: incarcerate appellant without setting a purge provision with which appellant had the present ability to comply to avoid incarceration. We shall, therefore, vacate the balance of appellant's 179-day sentence.\\n3. The Circuit Court's Order Remanding Appellant's Motion to Modify Child Support\\nAppellant contends that the circuit court erred in its February 2, 2012 order by remanding appellant's motion to modify child support \\\"for 'additional evidence and testimony' on issues already resolved in [appellant's favor in the Court's August 30, 2011 memorandum and the order sustaining his exceptions.\\\" Appellant claims that the circuit court's August 30, 2011 \\\"ruling that [appellant's] child support obligation during the period covered by his motion to modify was to be determined based on zero actual income\\\" was a final ruling. According to appellant, Maryland Rule 9\\u2014208(i) only permits a circuit court to \\\"remand a matter to the master for additional evidence . where the excepting party sets forth with partic ularity the evidence to be offered and the court determines that it should be considered.\\\" Because appellant \\\"as the excepting party did not ask for a remand for any additional evidence,\\\" appellant concludes that the court lacked legal authority to order a remand.\\nAs with the issue of the circuit court's order of incarceration, our resolution of this issue requires us to interpret a rule, namely, Rule 9-208, under a de novo standard. See Rawlings, 362 Md. at 555 n. 19, 766 A.2d 98.\\nAs a preliminary matter, we note that the circuit court shall refer the \\\"modification of an existing order or judgment as to the payment of . support\\\" to a standing master. Md. Rule 9-208(a)(l)(H). After receiving a matter on referral, the master shall hold a hearing and then make a report and recommendations to the circuit court, including factual findings and conclusions of law. See Md. Rule 9\\u2014208(b), (e). A party who disagrees with the master's report and recommendations may file exceptions with the circuit court within ten days after the recommendations are placed on the record or served on the parties. Md. Rule 9\\u2014208(f).\\nAlthough we accept appellant's contention that he did not ask for a remand, we disagree with his conclusion. Pursuant to Rule 9-208(h), a circuit court \\\"shall not direct the entry of an order or judgment based upon the master's recommendations . if exceptions are timely filed, until the court rules on the exceptions.\\\" Md. Rule 9\\u2014208(h)(1)(A) (emphasis added). In this case, the court never issued a final ruling on appellant's exceptions.\\nIn his exceptions to the master's report and recommendations, appellant stated that \\\"[tjhere is no testimony to support a finding the defendant has a present ability to pay 700[sic] in child support and no testimony to support an arbitrary imputed salary of $50,000.\\\" Appellant stated further that \\\"the Master [found] only the defendant is not currently employed and has been laid off since 2009. The [Report] & [Recommendations] made no finding of impoverishment of any, actual income.\\\" In its August 30, 2011 Memorandum Opinion, the circuit court sustained appellant's exceptions in part, explaining its reasoning as follows:\\nSince the Master did not make a finding that [appellant] has voluntarily impoverished himself, the Master could not determine what [appellant's] potential income could be. The Master would have to determine his support obligation by using [appellant's] actual income at the time which was $0.00. However, it appears [appellant] has recently secured employment. As soon as [appellant] is able to document his income to this Court, this Court will recalculate his support obligations based on his new actual income.\\n(Emphasis added). The court concluded that the \\\"Master did not make a finding that [appellant] voluntarily impoverished himself,\\\" and that appellant's \\\"child support obligation shall be based on his adjusted actual income.\\\" The order accompanying this Memorandum Opinion, however, stated simply that appellant's exceptions were \\\"SUSTAINED, in part.\\\" The order contained no other ruling of the court.\\nBoth the circuit court's August 30, 2011 Memorandum Opinion and order make clear that appellant's child support obligation should not have been $708.00 a month, but neither document sets forth what appellant's \\\"new\\\" or \\\"adjusted\\\" actual income, nor what his adjusted child support obligation should be. Indeed, the court explained at the February 2, 2012 hearing that it never made a final ruling on appellant's motion to modify child support:\\nTHE COURT: [R]emember[, appellant,] you were actually going to present some offer of employment. What we basically did is kind of deferred everything pending\\u2014we wanted to see something to document.\\n(Emphasis added). Appellant never filed any such document between August 30, 2011 and February 2, 2012. Thus the court's August 30, 2011 ruling remained \\\"pending,\\\" rather than final. See O'Brien v. O'Brien, 367 Md. 547, 555-56, 790 A.2d 1 (2002) (stating that \\\"[m]erely sustaining, or overruling, exceptions does not end the case in the Circuit Court, and it therefore does not constitute a judgment, even if the parties and the court believe that, for practical purposes, the case is over\\\").\\nIn addition, appellant himself acknowledged that the court's August 30, 2011 Order was not final. Appellant filed an \\\"Ex-Parte Motion for Relief' on December 28, 2011, in which he stated that he \\\"ha[d] yet to receive a child support order\\\" after the circuit court sustained his exceptions in part and sought, in pertinent part, \\\"finality . as a matter of law.\\\"\\nThe circuit court responded to appellant's request for a final order by holding a hearing just over a month later on February 2, 2012. Instead of issuing a final ruling at the conclusion of the February 2 hearing, the court decided that appellant's motion to modify child support should be remanded to the master \\\"for the purpose of taking additional evidence and testimony on those particular issues.\\\" This was proper, in our view.\\nThe Court of Appeals has previously explained that\\n[u]pon consideration of an exception, the court normally will come to one of three conclusions\\u2014that the exception has no substantive merit and that the court should act in conformance with the master's recommendation, that the exception has some substantive merit and that the court should therefore reject the recommendation, in whole or in part, and make a different ruling, or that there is or may be merit to the exception but that some further proceeding is required before a final ruling is appropriate.\\nO'Brien, 367 Md. at 555, 790 A.2d 1 (emphasis added); see also Levitt v. Levitt, 79 Md.App. 394, 399, 556 A.2d 1162 (1989) (explaining that the circuit court \\\"may remand to the Master or . conduct a de novo hearing, [ ] so that a sound factual base exists for the [court's] ultimate determination\\\"), cert. denied, 316 Md. 549, 560 A.2d 1118. That is precisely what happened here: the circuit court concluded that there was merit to appellant's exceptions, but determined that \\\"some further proceeding is required before a final ruling is appropriate.\\\" O'Brien, 367 Md. at 555, 790 A.2d 1.\\nAppellant asserts, nevertheless, that the remand was not authorized by Maryland Rule 9-208(i)(l), which provides that\\n[t]he exceptions shall be decided on the evidence presented to the master unless: (A) the excepting party sets forth with particularity the additional evidence to be offered and the reasons why the evidence was not offered before the master, and (B) the court determines that the additional evidence should be considered. If additional evidence is to be considered, the court may remand the matter to the master to hear and consider the additional evidence or conduct a de novo hearing.\\nRule 9-208(i)(l), however, governs the specific situation where the excepting party seeks to introduce new evidence that was not presented to the master; it does not govern the situation where, as here, the court determines that a remand is necessary for the master to consider further evidence. Such authority to remand to the master prior to a final ruling is derived from Maryland case law. See O'Brien, 367 Md. at 555-56, 790 A.2d 1; Levitt, 79 Md.App. at 399, 556 A.2d 1162.\\nFinally, at oral argument before this Court, appellant asserted that the circuit court implicitly found that appellant owed $0.00 in monthly child support going back to December 17, 2010, when appellant filed his motion to modify child support. We disagree.\\nAs previously indicated, the trial court did not make a final ruling on appellant's child support obligation as a result of the court's sustaining, in part, his exceptions to the master's report and recommendations. Even if the court had made such ruling, we cannot conclude that it would have automatically reduced the obligation going back to the date of the filing of appellant's motion to modify. Under Maryland law, \\\" '[tjhe court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.' \\\" Krikstan v. Krikstan, 90 Md.App. 462, 472-73, 601 A.2d 1127 (1992) (quoting Md.Code (1984, 1991 Repl. Vol.), \\u00a7 12-104(b) of the Family Law Article). However, \\\"[t]he decision to make a child support award retroactive to the filing of the [relevant motion] is a matter reserved to the discretion of the trial court.\\\" Petitto v. Petitto, 147 Md.App. 280, 310, 808 A.2d 809 (2002). Thus the court had the discretion to reduce appellant's child support obligation retroactive to December 17, 2010, or retroactive to any other date between the date of the filing of appellant's motion and the court's final ruling on the motion. On the record before us, we cannot say what the trial court would have done on the retroactivity issue.\\nTherefore, in the absence of a final ruling on appellant's motion to modify child support, and consistent with Maryland case law, we hold that the circuit court did not err by remanding such motion to the master for the taking of further evidence.\\nBALANCE OF THE 179-DAY SENTENCE OF INCARCERATION ORDERED BY THE CIRCUIT COURT FOR CARROLL COUNTY ON FEBRUARY 2, 2012 VACATED; ORDER AFFIRMED IN ALL OTHER RESPECTS. CARROLL COUNTY TO PAY COSTS.\\n. Appellant's questions, as originally phrased, were:\\n1. Did the circuit court err in finding Stevens in contempt because the only evidence before the court was that Stevens was not able to pay more in support during the time period in question?\\n2. Was the original order of contempt invalid insofar as it imposed a purge provision requiring Stevens to perform actions into the indefinite future?\\n3. Was the order incarcerating Stevens for 179 days an impermissible punitive sanction in a constructive civil contempt proceeding?\\n4. Was the Circuit Court's order remanding the matter of Stevens's motion to modify to the master improper?\\n5. Did the Circuit Court err in denying Stevens's petition for writ of habeas corpus seeking immediate release from unlawful incarceration?\\n. Appellee did not participate in the instant appeal.\\n. As will be explained infra, the trial court also held a hearing on appellant's motion to modify child support.\\n. Maryland Rule 15-207(e) \\\"applies to proceedings for constructive civil contempt based on an alleged failure to pay spousal or child support, including an award of emergency family maintenance under Code, Family Law Article, Title 4, Subtitle 5.\\\" Md. Rule 15-207(e)(l).\\n. The Arrington v. Department of Human Resources decision combined two cases, Arrington and Marcellas McLong v. Sharon Oliver, which were argued on the same day and which presented the same issues, causing the Court of Appeals to address the two cases in a single opinion. 402 Md. 79, 81 & n. 1, 935 A.2d 432 (2007). All citations to Arrington in this opinion refer to the contempt case involving defendant-appellant Brian Arrington only.\\n. This is exactly the situation that the Court of Appeals anticipated in a footnote in Arrington. The Court explained that, in theory, \\\"it would be possible to coerce compliance\\\" with requirements like having the contemnor provide job search logs in a civil contempt proceeding, but a court \\\"would likely run into the same problem of being unable to incarcerate the defendant unless it could find that the defendant had the current ability to meet any purge.\\\" 402 Md. at 106 n. 14, 935 A.2d 432.\"}"
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+"{\"id\": \"4024757\", \"name\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ronald Claude BRIGERMAN, Jr.\", \"name_abbreviation\": \"Attorney Grievance Commission v. Brigerman\", \"decision_date\": \"2014-12-18\", \"docket_number\": \"Misc. Docket AG No. 16\", \"first_page\": \"23\", \"last_page\": \"44\", \"citations\": \"441 Md. 23\", \"volume\": \"441\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:05:08.541582+00:00\", \"provenance\": \"CAP\", \"judges\": \"Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, and WATTS, JJ.\", \"parties\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ronald Claude BRIGERMAN, Jr.\", \"head_matter\": \"105 A.3d 467\\nATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ronald Claude BRIGERMAN, Jr.\\nMisc. Docket AG No. 16,\\nSept. Term, 2013.\\nCourt of Appeals of Maryland.\\nDec. 18, 2014.\\nCaroll G. Donayre, Assistant Bar Counsel (Glenn M. Gross-man, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.\\nRonald Claude Brigerman, Jr. (Cambridge, MD), for Respondent.\\nArgued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, and WATTS, JJ.\\n. In its pretrial statement, Petitioner withdrew its allegation that Respondent violated MLRPC 1.2(a). At the conclusion of the October 16, 2013, hearing, Petitioner withdrew its allegations that Respondent violated MLRPC 1.4(a)(4) and MLRPC 8.4(c).\", \"word_count\": \"5367\", \"char_count\": \"33720\", \"text\": \"BARBERA, C.J.\\nOn May 14, 2013, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action (the \\\"Petition\\\") against Respondent, attorney Ronald Claude Brigerman, Jr. The Petition alleged violations of the Maryland Lawyers' Rules of Professional Conduct (\\\"MLRPC\\\") in connection with Respondent's abandonment of one client, failure to communicate with several clients, misrepresentation to a client and Petitioner, and failure to cooperate with Petitioner's investigation. Specifically, the Petition alleged that Respondent violated MLRPC 1.1 (competence); MLRPC 1.2 (scope of representation and allocation of authority between client and lawyer); MLRPC 1.3 (diligence); MLRPC 1.4(a) and (b) (communication); MLRPC 1.15(a), (c), and (d) (safekeeping property); MLRPC 1.16(d) (declining or terminating representation); MLRPC 8.1(a) and (b) (bar admission and disciplinary matters); MLRPC 8.4(a), (c), and (d) (misconduct); and Maryland Rule 16-604 (trust account\\u2014required deposits).\\nOn May 20, 2013, this Court designated the Honorable Leah J. Seaton of the Circuit Court for Dorchester County (the \\\"hearing judge\\\") to conduct an evidentiary hearing and render written findings of fact and conclusions of law. Respondent was served with process, in compliance with Maryland Rule 16-753, and, after he requested and was granted an extension, filed an Answer to the Petition for Disciplinary or Remedial Action on August 1, 2013.\\nThe evidentiary hearing was held before the hearing judge on October 16, 2013. Thereafter, the hearing judge issued written findings of fact and conclusions of law, in which she concluded, by clear and convincing evidence, that Respondent had violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a) and (b) ; MLRPC 1.15(a), (c), and (d); MLRPC 1.16(d); MLRPC 8.1(a) and (b); MLRPC 8.4(a), (c), and (d); and Maryland Rule 16-604. On December 20, 2013, Petitioner filed Petitioner's Exceptions and Recommendation for Sanction (\\\"Petitioner's Exceptions\\\"), excepting to one of the hearing judge's legal conclusions. Respondent filed no exceptions.\\nOn September 4, 2014, this Court held oral argument. On September 10, 2014, we issued an Order of Remand, directing the hearing judge to clarify part of her discussion of the alleged mitigating circumstances in Respondent's case. The hearing judge then issued Supplemental Findings and/or Conclusions of Law as to Mitigating Factors (\\\"Supplemental Findings\\\") on September 30, 2014. Petitioner filed its response to the Supplemental Findings on October 9, 2014, and Respondent filed his response on October 14, 2014, in which he recommended a reprimand as the appropriate sanction for his misconduct.\\nUpon this Court's review of the hearing judge's findings of fact and conclusions of law, as well as the Supplemental Findings, we hold that Respondent violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a) and (b); MLRPC 1.15(a), (c), and (d); MLRPC 1.16(d); MLRPC 8.1(a) and (b); MLRPC 8.4(a), (c) , and (d); and Maryland Rule 16-604. We further hold, under the particular circumstances of this case, that the appropriate sanction is indefinite suspension.\\nI.\\nWe summarize, below, the hearing judge's written findings of fact and conclusions of law:\\nRespondent graduated from the University of Baltimore School of Law in 1989. Thereafter and until sometime in 1993, he worked in a non-lawyer capacity for State Farm Insurance Company. From 1993 to 2001, Respondent handled bodily injury claims for Nationwide Insurance Company. Respondent was admitted to the Bar of this Court on December 16, 2003.\\nThe current disciplinary matter stems from three separate complaints brought by three of Respondent's former clients, Kent Brummell, Renee Copper, and Terry Holden.\\nComplaint of Kent Brummell\\nIn 2010, Kent Brummell (\\\"Mr. Brummell\\\") retained Respondent to defend him in a criminal prosecution. Mr. Brummell was found guilty and sentenced to 35 years of incarceration.\\nOn January 11, 2012, Mr. Brummell filed a complaint with Petitioner, citing Respondent's failure to provide him with copies of documents from his case file. Mr. Brummell alleged that he had requested those documents several times prior to filing his complaint -with Petitioner but had received no reply from Respondent. Thereafter, Petitioner commenced an investigation.\\nIn a letter to Petitioner dated February 2, 2012, Respondent wrote that he never received Mr. Brummell's requests for the documents, adding that he would forward the documents upon his receiving Mr. Brummell's written request for the case file that included instructions on where to mail the file. On February 23, 2012, Mr. Brummell sent Respondent a request for the documents and provided Respondent with instructions on where to send the file documents. Respondent did not reply to Mr. Brummell's request.\\nPetitioner sent letters dated May 17, 2012, June 6, 2012, and July 11, 2012, to Respondent at his P.O. Box mailing address, at which Respondent was able to receive mail. The letters requested that Respondent respond to Mr. Brummell's complaint. Respondent received the letters, but did not reply.\\nAn investigator for Petitioner visited Respondent's office on August 7, 2012, and left his business card. That same day, Respondent called the investigator and said that he would send the documents to Mr. Brummell and respond to Petitioner's letters. In a subsequent e-mail, the investigator told Respondent to notify Petitioner if there would be a delay in sending the documents. On August 17, 2012, Respondent mailed Mr. Brummell's documents, via certified mail, to the correctional facility in which Mr. Brummell was incarcerated, yet Respondent did not inform Petitioner or the investigator that he had done so until the evidentiary hearing.\\nOn August 8, 2012, Petitioner sent a letter to Respondent stating that the case would be formally docketed for an investigation and possible disciplinary action. Petitioner followed up with a certified letter on August 20, 2012, but the letter was returned unclaimed and without a response. Both letters were sent to Respondent's physical office address, at which Respondent claimed he had difficulty receiving mail. Respondent, however, had instituted mail forwarding from the physical address to his correct P.O. Box mailing address. The hearing judge found that Respondent had received the letters but failed to respond to Petitioner.\\nBased on these facts, the hearing judge concluded that Respondent violated MLRPC 1.16(d); MLRPC 8.1(a) and (b); and MLRPC 8.4(a), (c), and (d).\\nComplaint of Renee Copper\\nIn or about March 2010, Renee Copper (\\\"Ms. Copper\\\") retained Respondent to represent her in a personal injury claim resulting from an August 14, 2009, automobile accident. Respondent filed a lawsuit on behalf of Ms. Copper on September 22, 2011. A trial date was set for June 22, 2012.\\nIn or about April 2012, Respondent advised Ms. Copper that the defendant's insurance company, Progressive Insurance Company (\\\"Progressive\\\"), provided a settlement offer of $10,000. Ms. Copper authorized Respondent to accept the offer and dismiss the case. Respondent told Ms. Copper that he would do so and then inform her when the case was dismissed.\\nIn May 2012, Progressive sent Respondent a $10,000 settlement check made payable to Respondent. On June 21, 2012, Respondent and defense counsel filed a Joint Line of Dismiss al of Ms. Copper's case. Respondent did not inform Ms. Copper of his receipt of the settlement check or the subsequent dismissal.\\nBetween June 1, 2012, and the scheduled trial date of June 22, 2012, Ms. Copper attempted to contact Respondent about her case and the settlement, but Respondent never replied. Ms. Copper only learned that her case had been dismissed when she called the court about her matter. On or about June 22, 2012, Ms. Copper contacted Progressive directly and learned that Progressive had issued a $10,000 settlement check to Respondent approximately one month earlier. The check had not yet been negotiated.\\nBy chance, on August 18, 2012, Ms. Copper encountered Respondent at the Salisbury Mall. She questioned him about the settlement check. Respondent told Ms. Copper that he had sent her a letter with the breakdown of settlement disbursements. Respondent never sent such a letter to Ms. Copper. Respondent also said that he would call Ms. Copper the following week, but he failed to do so.\\nOn September 12, 2012, Ms. Copper once again ran into Respondent by chance at a local store. She questioned Respondent about the settlement check, and Respondent told her to meet him the next day. That following day, Respondent and Ms. Copper met and deposited the check in Respondent's account. Respondent wrote Ms. Copper a check for her portion of the settlement proceeds.\\nPetitioner began investigating Ms. Copper's complaint in early August 2012. Petitioner sent Respondent letters dated August 2, 2012, September 4, 2012, October 2, 2012, October 16, 2012, and October 31, 2012. Respondent received, but did not respond to, Petitioner's letters.\\nBased on these facts, the hearing judge concluded that Respondent violated MLRPC 1.3; MLRPC 1.4(a)(1), (2), and (3); MLRPC 1.15(d); MLRPC 8.1(b); and MLRPC 8.4(a), (c), and (d).\\nComplaint of Terry J. Holden\\nOn June 6, 2012, Terry J. Holden (\\\"Ms. Holden\\\") retained Respondent to represent her as a defendant in a civil matter involving Ms. Holden's alleged failure to pay for contractual services involving a home improvement project. The trial date was set for August 6, 2012, in the District Court sitting in Caroline County.\\nRespondent met with Ms. Holden on June 6, 2012. Ms. Holden paid Respondent, by check, a flat fee of $2,500 and provided him court documents and photographs of her home. Sometime later, Respondent cashed the check without depositing or maintaining the fees in a trust account, and without receiving Ms. Holden's informed consent not to deposit or maintain the fees in trust.\\nRespondent participated in a five-minute telephone call with a potential expert witness to discuss the contractor's work in Ms. Holden's case. Respondent did not perform any additional work on the matter. After the initial June 6, 2012, meeting, Ms. Holden attempted to contact Respondent, but she was unable to reach him. Ms. Holden left several messages for Respondent between July 31, 2012, and August 3, 2012, none of which Respondent returned.\\nOn or about August 1, 2012, Ms. Holden filed a pro se notice of intention to defend her case in the District Court. Shortly thereafter, she filed a complaint with Petitioner. The hearing judge found that, during the course of Petitioner's investigation, Respondent received, but did not respond to, letters from Petitioner dated August 29, 2012, September 27, 2012, November 15, 2012, and November 27, 2012.\\nBased on these facts, the hearing judge concluded that Respondent violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a)(1), (2), and (3) and (b); MLRPC 1.15(a) and (c); MLRPC 1.16(d); MLRPC 8.1(b); MLRPC 8.4(a) and (d); and Maryland Rule 16-604.\\nMitigating and Aggravating Factors\\nIn response to this Court's Order of Remand, the hearing judge submitted Supplemental Findings in which she found, by a preponderance of evidence, several mitigating factors. First, the hearing judge found that Respondent \\\"is remorseful for 'dropping the ball' in Ms. Holden's case\\\" and has \\\"openly acknowledged his failures in that case, and apologized for his inaction.\\\" The hearing judge acknowledged, though, that \\\"Respondent's remorse did not cause him to take any corrective action\\\" until the October 16, 2013, evidentiary hearing when he stated that he \\\"was prepared to provide a refund.\\\" Petitioner informed this Court at oral argument that Respondent did provide the promised refund to Ms. Holden by handing her a money order for $2,500 on the day of the evidentiary hearing.\\nSecond, the hearing judge found \\\"that Respondent's marital and custody difficulties beginning in October 2011 and lasting through 2012\\\" constitute a mitigating factor. The hearing judge explained that \\\"Respondent credibly testified that he went through a divorce and experienced significant custody issues regarding his youngest daughter, which took an emotional toll on him.\\\" Finally, the hearing judge found that \\\"Respondent has not been formally disciplined previously for any professional misconduct and is not currently the subject of any other complaints to the Attorney Grievance Commission.\\\"\\nThe hearing judge further found, however, that \\\"Respondent took no responsibility for his mistakes in Mr. Brummell's and Ms. Copper's cases\\\" and repeatedly disregarded \\\"communications and requests from Mr. Brummell and Ms. Copper.\\\" Also, \\\"[wjhatever stress [Respondent] was under as a result of his marital breakup does not justify his seven month disregard of Mr. Brummell's request for his file, and ignoring Ms. Copper's request for her settlement check.\\\" Furthermore, Respondent \\\"displayed] an indifference to the disciplinary legal process\\\" when he ignored repeatedly communications from Bar Counsel.\\nII.\\nIn attorney discipline proceedings, this Court \\\"has original and complete jurisdiction and conducts an independent review of the record.\\\" Attorney Grievance Comm'n v. Page, 430 Md. 602, 626, 62 A.3d 163 (2013). We accept the hearing judge's findings of fact as correct unless shown to be clearly erroneous. Attorney Grievance Comm'n v. Lara, 418 Md. 355, 364, 14 A.3d 650 (2011). Neither Respondent nor Petitioner filed exceptions to the hearing judge's findings of fact. We therefore treat those findings as established. See Md. Rule 16-759(b)(2)(A).\\nWe review de novo the hearing judge's conclusions of law. Md. Rule 16-759(b)(l); Page, 430 Md. at 626, 62 A.3d 163. The ultimate decision as to whether an attorney has engaged in professional misconduct lies with this Court. Attorney Grievance Comm'n v. Agbaje, 438 Md. 695, 717, 93 A.3d 262 (2014).\\nIII.\\nPetitioner's Exception\\nRespondent did not file any exceptions to the hearing judge's conclusions of law. Petitioner filed one exception to the hearing judge's legal conclusion that Respondent violated MLRPC 8.4(c), \\\"by misrepresenting to Ms. Copper that he mailed her a letter containing a settlement breakdown.\\\" Petitioner agrees that the hearing judge's factual findings support that Respondent made this misrepresentation. Petitioner nonetheless argues that, because Petitioner did not charge Respondent with a violation of MLRPC 8.4(c) in connection with his representation of Ms. Copper, the hearing judge was precluded from finding that Respondent violated that rule while representing Ms. Copper.\\nWe agree. This Court has held that \\\"an attorney may not be found guilty of violating a Rule of Professional Conduct unless that Rule is charged in the Petition For Disciplinary or Remedial Action.\\\" Attorney Grievance Comm'n v. Sapero, 400 Md. 461, 487, 929 A.2d 483 (2007). This is because \\\"notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defen[s]e.\\\" In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). We therefore sustain Petitioner's exception to the hearing judge's conclusion that Respondent violated MLRPC 8.4(c) in connection with Respondent's representation of Ms. Copper.\\nRespondent's Misconduct\\nBased upon our de novo review of the hearing judge's remaining conclusions of law, we conclude that Respondent violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a) and (b); MLRPC 1.15(a), (c), and (d); MLRPC 1.16(d); MLRPC 8.1(a) and (b); MLRPC 8.4(a), (c), and (d); and Maryland Rule 16-604.\\nMLRPC 1.1\\nMLRPC 1.1 states that \\\"[a] lawyer shall provide competent representation to a client.\\\" We have held that \\\"[a] failure to make the proper and required filings in a client matter demonstrates a lack of the appropriate preparation and thoroughness necessary to provide competent representation.\\\" Attorney Grievance Comm'n v. Shakir, 427 Md. 197, 205, 46 A.3d 1162 (2012); see also Attorney Grievance Comm'n v. Garrett, 427 Md. 209, 223, 46 A.3d 1169 (2012) (holding that an attorney violated MLRPC 1.1 by failing to take the \\\"necessary, fundamental steps to further the clients' case[ ]\\\").\\nRespondent violated MLRPC 1.1, in connection with his representation of Ms. Holden, when he accepted Ms. Holden's fee and subsequently failed to provide her with competent or meaningful legal services. Respondent took a $2,500 fee from Ms. Holden, yet he failed to perform any legal services on her behalf beyond a five-minute telephone call with a potential witness.\\nMLRPC 1.3 and 1.15(d)\\nMLRPC 1.3 states that \\\"[a] lawyer shall act with reasonable diligence and promptness in representing a client.\\\" When an attorney \\\"d[oes] nothing whatsoever to advance the client's cause or endeavor[,]\\\" Attorney Grievance Comm'n v. Bahgat, 411 Md. 568, 575, 984 A.2d 225 (2009), or \\\"fail[s] to disburse funds to clients in a timely manner,\\\" Attorney Grievance Comm'n v. Zuckerman, 403 Md. 695, 713, 944 A.2d 525 (2008), the attorney violates MLRPC 1.3. MLRPC 1.15(d) provides, in relevant part, that, \\\"[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person[]\\\" and \\\"shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive.... \\\"\\nThe facts found by the hearing judge establish that Respondent failed to perform any meaningful legal services on Ms. Holden's behalf after entering into a retainer agreement. Respondent thereby violated MLRPC 1.3 in connection with his representation of Ms. Holden. The hearing judge found that Respondent \\\"failed to notify Ms. Copper in May 2012 that he had received the $10,000 settlement check\\\" and \\\"failed to promptly deliver the check to her. He received the check in May 2012, and did not deliver it to her until September 13, 2012.\\\" Those findings establish that Respondent violated MLRPC 1.3 and MLRPC 1.15(d) in connection with his representation of Ms. Copper.\\nMLRPC 1.4\\nMLRPC 1.4 states, in relevant part:\\n(a) A lawyer shall:\\n(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent . is required by these Rules;\\n(2) keep the client reasonably informed about the status of the matter;\\n(3) promptly comply with reasonable requests for information. .\\n(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.\\nDuring the course of their representation, both Ms. Copper and Ms. Holden repeatedly tried, without success, to contact Respondent. The hearing judge found that Respondent \\\"fail[ed] to inform [Ms. Copper] about the settlement and dismissal of her case, and [failed] to respond to her multiple, reasonable requests for information as to the status of her case and the expected settlement.\\\" The hearing judge further found that Respondent \\\"failed to communicate with Ms. Holden and failed to respond to her reasonable requests for information.\\\" Those findings establish that Respondent violated MLRPC 1.4(a), in connection with his representation of Ms. Copper, and MLRPC 1.4(a) and (b), in connection with his representation of Ms. Holden.\\nMLRPC 1.15(a), MLRPC 1.15(c), and Maryland Rule 16-604\\nMLRPC 1.15(a) provides that \\\"[a] lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules[.]\\\" MLRPC 1.15(c) provides that, \\\"[u]nless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account[.]\\\" Similarly, Maryland Rule 16-604 states that\\nall funds, including cash, received and accepted by an attorney or law firm in this State from a client or third person to be delivered in whole or in part to a client or third person, unless received as payment of fees owed the attorney by the client or in reimbursement for expenses properly advanced on behalf of the client, shall be deposited in an attorney trust account in an approved financial institution.\\nThe hearing judge found that, when Ms. Holden retained Respondent as her counsel, she provided him with a $2,500 check as a retainer for his services, yet Respondent \\\"fail[ed] to obtain Ms. Holden's informed consent in -writing to deposit the fees in any account other than a trust account.\\\" Those findings establish that Respondent violated Maryland Rule 16-604 by failing to deposit the monies into his attorney trust account; he violated MLRPC 1.15(a) by cashing the check and co-mingling his unearned fee with his own property; and he violated MLRPC 1.15(c) by not obtaining Ms. Holden's informed consent.\\nMLRPC 1.16(d)\\nMLRPC 1.16(d) provides, in pertinent part, that, \\\"[ujpon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client . [and] surrendering papers and property to which the client is entitled[.]\\\" An attorney violates MLRPC 1.16(d) when he or she \\\"abandon[s] the representation, fail[s] to provide all necessary services, and fail[s] to keep the clients informed concerning the representation[,]\\\" Attorney Grievance Comm'n v. Park, 427 Md. 180, 189, 46 A.3d 1153 (2012), and when he or she \\\"fail[s] to honor [the client's] request for a copy of his case file(s) at the end of the representation[,]\\\" Attorney Grievance Comm'n v. Brown, 426 Md. 298, 314, 44 A.3d 344 (2012). Even if the attorney \\\"eventually provide[s] a copy of [the] case file to [the client],\\\" failing to deliver promptly a client's papers and property constitutes a violation of this Rule. Attorney Grievance Comm'n v. Page, 430 Md. 602, 630-31, 62 A.3d 163 (2013).\\nThe hearing judge found that Respondent \\\"fail[ed] to respond to Mr. Brummell's requests, and Petitioner's requests, to return Mr. Brummell's file documents between January 2012 and August 2012.\\\" That finding establishes that Respondent violated MLRPC 1.16(d). This is so, notwithstanding that Respondent eventually returned those documents to Mr. Brummell. See Page, 430 Md. at 631, 62 A.3d 163. Respondent also violated MLRPC 1.16(d), in connection with his representation of Ms. Holden, when, as the hearing judge explained, Respondent effectively abandoned her without notice \\\"by taking no action to represent her, other than contacting a potential expert, by failing to enter his appearance on her behalf and by failing to file the Notice of Intention to Defend.\\\"\\nMLRPC 8.1(a) and 8.4(c)\\nMLRPC 8.1(a) provides, in pertinent part, that a lawyer shall not \\\"knowingly make a false statement of material fact[.]\\\" MLRPC 8.4(c) provides that \\\"[i]t is professional misconduct for a lawyer to . engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]\\\" \\\"We have said that [MLRPC] 8.1(a) and 8.4(c) are violated when an attorney acts dishonestly and deceitfully by knowingly making false statements to Bar Counsel.\\\" Attorney Grievance Comm'n v. Harris, 403 Md. 142, 164, 939 A.2d 732 (2008). Respondent violated MLRPC 8.1(a) and 8.4(c), in connection with his representation of Mr. Brummell, when he falsely told Petitioner and Mr. Brummell that he would return Mr. Brummell's case file upon his written request.\\nMLRPC 8.1(b)\\nMLRPC 8.1(b) states, in part, that an attorney shall not \\\"knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority[.J\\\" Failure to respond to letters from the Attorney Grievance Commission constitutes a violation of MLRPC 8.1(b). See Attorney Grievance Comm'n v. Gray, 436 Md. 513, 521-22, 83 A.3d 786 (2014) (holding that the attorney violated MLRPC 8.1(b) when he failed to respond to two letters from the Attorney Grievance Commission). The hearing judge found that Respondent failed to respond to a total of 14 letters from Petitioner regarding Mr. Brummell's, Ms. Copper's, and Ms. Holden's complaints. Those findings establish that Respondent violated MLRPC 8.1(b) in connection with his representation of Mr. Brummell, Ms. Copper, and Ms. Holden.\\nMLRPC 8.4(d)\\nMLRPC 8.4(d) provides that \\\"[i]t is professional misconduct for a lawyer to . engage in conduct that is prejudicial to the administration of justice[.]\\\" \\\"Conduct which is likely to impair public confidence in the profession, impact the image of the legal profession and engender disrespect for the court is conduct prejudicial to the administration of justice.\\\" Attorney Grievance Comm'n v. Agbaje, 438 Md. 695, 717, 93 A.3d 262 (2014). This includes \\\"[f]ail[ing] to represent a client in an adequate manner and lying to a client[,]\\\" Attorney Grievance Comm'n v. Reinhardt, 391 Md. 209, 222, 892 A.2d 533 (2006), as well as \\\"repeatedly failing] to respond in a timely manner to Bar Counsel's inquiries[,]\\\" Attorney Grievance Comm'n v. Fox, 417 Md. 504, 538, 11 A.3d 762 (2010). An MLRPC 8.4(d) violation also includes faffing to disburse promptly settlement funds, see Attorney Grievance Comm'n v. Mungin, 439 Md. 290, 315, 96 A.3d 122 (2014), and faffing to keep a client informed about the status of a case, see Attorney Grievance Comm'n v. De La Paz, 418 Md. 534, 556, 16 A.3d 181 (2011) (holding that an attorney violated MLRPC 8.4(d) by faffing to inform his client of the dismissal of his client's complaint).\\nRespondent violated MLRPC 8.4(d), in connection with his representation of Ms. Holden, when, in the hearing judge's words, he \\\"fail[ed] to perform any meaningful legal work\\\" on Ms. Holden's case after accepting her fee. Respondent violated MLRPC 8.4(d), in connection with his representation of Ms. Copper, when, as the hearing judge explained, Respondent \\\"failed to timely inform Ms. Copper of the settlement, delayed contacting her to disburse the settlement monies, misrepresented that he had mailed her a settlement breakdown letter, and failed to promptly respond to Bar Counsel[.]\\\" Respondent likewise violated MLRPC 8.4(d), in connection with his representation of Mr. Brummell, when Respondent misrepre sented to Bar Counsel that he would send promptly Mr. Brummell's case file to him, upon his written request.\\nMLRPC 8.4(a)\\nMLRPC 8.4(a) provides that \\\"[i]t is professional misconduct for a lawyer to . violate or attempt to violate the Maryland Lawyer's Rules of Professional Conduct!.]\\\" Based on Respondent's numerous other violations of the MLRPC, Respondent also violated MLRPC 8.4(a), in connection with his representation of Mr. Brummell, Ms. Copper, and Ms. Holden.\\nIV.\\nWe turn now to the appropriate sanction for Respondent's misconduct. Petitioner recommends disbarment. Respondent recommends a sanction of a reprimand, asserting that the mitigating circumstances found by the hearing judge substantially diminish the seriousness of his misconduct.\\nThe severity of the sanction for an attorney's misconduct \\\"depends on the circumstances of each case, the intent with which the acts were committed, the gravity, nature and effect of the violations, and any mitigating factors.\\\" Attorney Grievance Comm'n v. Ward, 394 Md. 1, 33, 904 A.2d 477 (2006) (citations omitted). The purpose of a sanction is not to punish the attorney, Attorney Grievance Comm'n v. Garcia, 410 Md. 507, 521, 979 A.2d 146 (2009), but rather, \\\"to protect the public and the public's confidence in the legal profession!,]\\\" see Attorney Grievance Comm'n v. Zimmerman, 428 Md. 119, 144, 50 A.3d 1205 (2012). \\\"Sanctions accomplish these goals by deterring intolerable conduct and keeping those unfit to practice law from doing so.\\\" Id.\\nWe have imposed the sanction of disbarment \\\"[i]n cases involving flagrant neglect of client affairs, including failure to communicate with clients or respond to inquiries from Bar Counsel!.]\\\" Attorney Grievance Comm'n v. Lara, 418 Md. 355, 365, 14 A.3d 650 (2011). In Lara, we held that disbarment was appropriate where the attorney deposited unearned fees into his personal account, effectively abandoned his clients, and failed to respond to Bar Counsel's requests for information, in violation of MLRPC 1.3, 1.4, 1.15, 1.16(d), 8.1(b), and 8.4(a) and (d). Id. at 361-65, 14 A.3d 650. Similarly, in Attorney Grievance Comm'n v. Tinsky, 377 Md. 646, 655, 835 A.2d 542 (2003), we disbarred an attorney for his \\\"lack of diligence, his lack of preparation, his failure to communicate with his clients, his charging of unreasonable fees, his failure to account for and return monies, his misrepresentations, and his failure to comply with Bar Counsel's requests[,]\\\" in violation of MLRPC 1.1, 1.3, 1.4(a) and (b), 1.16(d), and 8.4(d). See also Fox, 417 Md. at 544-45, 11 A.3d 762 (\\\"The combination of Respondent's violations\\u2014in particular, abandonment of his clients, misrepresentation, and failure to cooperate with Bar Counsel's investigation\\u2014convinces us that Respondent is unfit to practice law in Maryland and disbarment is the appropriate sanction to protect the public.\\\").\\nAs in Lara and Tinsky, Respondent effectively abandoned his representation of Ms. Holden when he took a fee from her and failed to perform any meaningful work on her matter. Respondent also neglected all three complainants when he failed to communicate with them or respond to their reasonable requests for information. Accordingly, Respondent committed the same violations as the attorneys in Lara and Tinsky, in which we held disbarment to be the appropriate sanction.\\nRespondent's misconduct is further exacerbated by his violations of MLRPC 8.1(a) and 8.4(c), which were not present in Lara and Tinsky, when he misrepresented to Mr. Brummell and Petitioner that he would return promptly Mr. Brummell's case file. In Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001), we held that disbarment is the default sanction \\\"in cases of intentional dishonesty, misappropriation cases, fraud, stealing, serious criminal conduct and the like\\\" and that \\\"we will not accept, as 'compelling extenuating circumstances,' anything less than the most serious and utterly debilitating mental or physical health conditions[J\\\" Vanderlinde, 364 Md. at 413, 773 A.2d 463. Since Vanderlinde, however, this Court has clarified that Vanderlinde is not a \\\"bright-line rule,\\\" and \\\"we must still examine the facts, circumstances, and mitigation in each case\\\" to determine the appropriate sanction. Attorney Grievance Comm'n v. Lane, 367 Md. 633, 647, 790 A.2d 621 (2002).\\nIn the end, \\\"[t]he appropriate sanction depends on the facts and circumstances of the ease before us, including our assessment of aggravating and mitigating factors[.]\\\" See Attorney Grievance Comm'n v. Levin, 438 Md. 211, 228, 91 A.3d 1101 (2014). Several facts point us in the direction of a sanction short of disbarment. We find significant the hearing judge's finding that Respondent was experiencing personal problems, stemming from his divorce and child custody proceedings, during the time of his misconduct. Prior to these difficulties, Respondent never had been formally disciplined. Moreover, as found by the hearing judge, much of Respondent's misconduct resulted from his personal issues, which took an emotional toll on him during this time, rather than solely a dishonest or selfish motive. Furthermore, during oral argument before us, Petitioner informed us that Respondent returned the $2,500 fee to Ms. Holden. Respondent's conduct diverges from that in Lara and Tinsky, in which the attorneys never returned their unearned fees. See Lara, 418 Md. at 362, 14 A.3d 650; Tinsky, 377 Md. at 650, 835 A.2d 542.\\nIn light of these factors, this case warrants a sanction less severe than disbarment. Personal issues, however, do not excuse an attorney's abrogation of his professional duties. Respondent's misconduct was severe\\u2014he abandoned Ms. Holden, made misrepresentations to Mr. Brummell and Petitioner, and failed utterly to cooperate with Petitioner's investigation. Under the totality of the circumstances, taking into account the mitigating factors, we conclude that the appropriate sanction is an indefinite suspension.\\nIT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761(b), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST RONALD CLAUDE BRIGERMAN, JR.\\n. At the conclusion of the October 16, 2013, hearing, Petitioner withdrew its allegation that Respondent violated MLRPC 1.4(a) with respect to Mr. Brummell's complaint.\\n. At the conclusion of the October 16, 2013, hearing, Petitioner withdrew its allegation that Respondent violated Maryland Rule 16-604 with respect to Ms. Copper's complaint.\"}"
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+"{\"id\": \"4116831\", \"name\": \"COMMUNITY CLINIC, INC. et al. v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE et al.\", \"name_abbreviation\": \"Community Clinic, Inc. v. Department of Health & Mental Hygiene\", \"decision_date\": \"2007-05-03\", \"docket_number\": \"No. 2344\", \"first_page\": \"526\", \"last_page\": \"549\", \"citations\": \"174 Md. App. 526\", \"volume\": \"174\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:14:41.237452+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COMMUNITY CLINIC, INC. et al. v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE et al.\", \"head_matter\": \"922 A.2d 607\\nCOMMUNITY CLINIC, INC. et al. v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE et al.\\nNo. 2344,\\nSept. Term, 2005.\\nCourt of Special Appeals of Maryland.\\nMay 3, 2007.\\nKathy S. Ghiladi (James L. Feldesman, on brief), Washington, for appellant.\\nJoel L. Tornan (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.\\nPanel DEBORAH S. EYLER, BARBERA and LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.\", \"word_count\": \"6213\", \"char_count\": \"39540\", \"text\": \"RODOWSKY, J.\\nIn this judicial review of an administrative decision, the appellants, two medical clinics, are aggrieved by the partial disallowance by the appellee, Maryland Department of Health and Mental Hygiene (DHMH), of the appellants' claims for reimbursement of costs under the Maryland Medical Assistance Program (Medicaid or the Program). See Maryland Code (2000, 2005 RepLVol.), \\u00a7 15-101(h) and 15-102 of the Health-General Article (HG). The disallowance was based upon DHMH's application of its regulation establishing a monetary cap on a class of costs included in appellants' requests for reimbursement. Appellants contend that the Maryland regulation does not comply with governing federal law. Theoretically, there are four possible outcomes: (1) the regulation is invalid in any application, (2) the regulation is invalid as applied in this case, (3) the regulation is valid as applied in this case, and (4) the regulation is valid in all applications. As explained below, we shall hold that the regulation was validly applied in the instant matter, thereby upholding the DHMH decision.\\nThe appellants are federally-qualified health centers (FQHCs). Appellant, Community Clinic, Inc. (Community or CCI), operates in Montgomery County; appellant, People's Community Health Center, Inc. (People's), operates in Baltimore City and northern Anne Arundel County. The fiscal years (July 1-June 30) and amounts of disallowances involved are: CCI: 1996-$108,370; 1997-$123,559; 1998-$32,875; and 1999-$21,624; People's: 1997-$62,612 and 1998-$6,939. The four CCI cases in the Office of Administrative Hearings (OAH) were respectively numbered DHMH-MCP-13200000011, 13-200000014, 13-200000015, and 13-1200100037. In the OAH, the claims by People's for the years 1997 and 1998 were one appeal, numbered DHMH-MCP-13200000012.\\nGeneral Legal Background\\nStates that elect to participate in Medicaid, as did Maryland, are required to submit to the U.S. Department of Health and Human Services a plan detailing how the state will expend federal funds. 42 U.S.C. \\u00a7 1396a (1994). That statute, entitled, \\\"State plans for medical assistance,\\\" provided in relevant part:\\n\\\"(a) Contents\\n\\\"A State plan for medical assistance must\\u2014\\n\\\"(13) provide\\u2014\\n\\\"(E) for payment for services . under the plan of 100 percent of costs which are reasonable and related to the cost of furnishing such services or based on such other tests of reasonableness, as the Secretary prescribes in regulations . or, in the case of services to which those regulations do not apply, on the same methodology used under section 1395\\u00cd (a)(3) [relating to Medicare] of this title[.]\\\"\\nReasonable, and necessary and proper, costs were defined in 42 C.F.R. \\u00a7 413.9 (1996) as follows:\\n\\\"(b) Definitions \\u2014 (1) Reasonable cost. Reasonable cost of any services must be determined in accordance with regulations establishing the method or methods to be used, and the items to be included. The regulations in this part take into account both direct and indirect costs of providers of services. The objective is that under the methods of determining costs, the costs with respect to individuals covered by the program will not be borne by individuals not so covered, and the costs with respect to individuals not so covered will not be borne by the program. These regulations also provide for the making of suitable retroactive adjustments after the provider has submitted fiscal and statistical reports. The retroactive adjustment will represent the difference between the amount received by the provider during the year for covered services from both Medicare and the beneficiaries and the amount determined in accordance with an accepted method of cost apportionment to be the actual cost of services furnished to beneficiaries during the year.\\n\\\"(2) Necessary and proper costs. Necessary and proper costs are costs that are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities. They are usually costs that are common and accepted occurrences in the field of the provider's activity.\\\"\\nAs part of its Program, Maryland adopted regulations for FQHCs. 18 Md. R. Issue 7 at 783 et seq. (Apr. 5, 1991); 18 Md. R., Issue 13 at 1482 (June 28, 1991). The regulation, entitled, \\\"Reimbursement Principles for FQHC Services Rendered Before and Including June 30, 1999,\\\" is currently codified in COMAR 10.09.08.05.C. As relevant to the issue before us, that regulation provides that\\n\\\"federally qualified health centers shall be paid 100 percent of their reasonable allowable costs, subject to the limitations contained in \\u00a7 C(4)-(7) of this regulation, that are related to the provision of covered services.\\\"\\nReimbursement of FQHCs is on a per visit basis. Reimbursement during a fiscal year is based on an interim per visit rate, with a final per visit rate determined for the entire year. \\u00a7 C(4)(a), (b), and (c). The regulation further requires that an FQHC's costs be divided into four categories, called \\\"centers.\\\" These are general service costs, primary care services costs, dental services costs, if applicable, and non-reimbursable costs. \\u00a7 C(4)(e). The instant matter concerns the \\\"[gjeneral service cost center\\\" which\\n\\\"is composed of those costs associated with the depreciation of the facility's building or buildings and equipment, the operation of the plant, the administration and management of the facility, medical records, and those administrative costs associated with pharmacy and EPSDT services which are not reimbursed under a different payment methodology[.r\\n\\u00a7 C(4)(e)(i). The parties have adopted \\\"administrative costs\\\" as the shorthand reference to this cost center.\\nThe regulation distinguishes between urban and rural clinics. \\u00a7 C(5)(a) and (b). Appellants' clinics are classified as urban. The disallowances at issue here result from the application of COMAR 10.09.08.05.C(5)(d)(i) (the Cap), which in relevant part provides:\\n\\\"(d) Within each area a rate shall be developed for primary care . using the following method:\\n\\\"(i) Based on the provider's cost report for the fiscal year end which falls in the calendar year immediately preceding the year in which the rate year begins and other available relevant data, calculate a per visit rate for primary care services.... In calculating these rates, the amount of general service cost center costs that are eligible for reimbursement is the lesser of the allowable general service costs shown on the cost report or the amount that results from, multiplying the provider's total adjusted costs by 33 1/3 percent. \\\"\\n(Emphasis added).\\nOAH Proceedings\\nThe Secretary of DHMH referred appellants' appeal of the disallowances to OAH in order to have an administrative law judge (ALJ) take testimony and make a recommended decision. See COMAR 10.01.03.07. Each of the parties moved for a summary decision before the ALJ. In support of its motions, DHMH furnished the materials described below.\\nI. A letter dated May 8, 1995, from the U.S. Department of Health and Human Services, Health Care Financing Administration (HCFA) (now the Centers for Medicare and Medicaid Service) to State Medical Directors, responding to \\\"numerous inquiries . concerning the application of limits on the payment of [FQHCs].\\\" The federal administrator said in part, \\\"[T]he State agency must: 1) determine and assure its system is based upon, and covers, the reasonable costs of providing FQHC (core) and other ambulatory services to Medicaid recipients))]\\\" The letter also said that\\n\\\"the payment requirements [in the federal Medicaid statute and in the State Medicaid Manual] do not, in any way, preclude States (when determining reasonable cost) from establishing limits on the direct and indirect costs of furnishing covered services under the FQHC benefit. Limits on indirect costs are permissible as long as the State appropriately defines and identifies these costs.\\\"\\nII. A copy of 42 C.F.R. \\u00a7 405.2468(d)(1), which recognizes that costs in excess of guideline amounts are not included in costs allowable for reimbursement \\\"unless the clinic or center provides reasonable justification[.]\\\" 42 C.F.R. \\u00a7 405.2468 is included in a subpart of the HCFA regulations dealing with FQHCs.\\nIII. A copy of \\u00a7 6303 of the State Medicaid Manual which directs:\\n\\\"Pay 100 percent of the costs which are reasonable.... Irrespective of the type of payment method utilized, the State must determine and assure that the payments are based upon, and cover, the reasonable costs of providing services to Medicaid beneficiaries. Such costs cannot exceed the reasonable costs as determined by the applicable Medicare cost reimbursement principles set forth in 42 C.F.R. Part 413.\\\"\\nIV. An affidavit by a DHMH official affirming that, in 1990, a committee composed of the Maryland Medicaid staff and representatives of FQHCs developed a cost report and that, as part of that process, the Medicaid staff proposed the Cap.\\nV. A copy of the Maryland Medicaid Plan, as proposed, together with correspondence relating to its ultimate federal approval in September 1991.\\nVI. An affidavit by a DHMH official stating that the Medicaid programs of five other states \\\"have included in their State plans caps on administrative costs,\\\" at levels of 30 percent and, in one instance, 40 percent of total eligible costs.\\nIn th\\u00e9ir motions for summary decision, appellants relied on the federal requirement for 100 percent reimbursement of reasonable, allowable costs and on their cost reports. They argued:\\n\\\"Federal cost principles applicable to FQHC costs under Medicaid do not allow a State to adopt an administrative cap such as Maryland's. The findings called for in HCFA's May 8, 1995 policy guidance to State Medicaid Directors were never made (and the State therefore cannot make the requisite assurances).\\\"\\nThe ALJ denied all of the motions. She reasoned, in part, that the review of Maryland's plan by HCFA, which she characterized as \\\"proforma\\\" was not dispositive, on summary decision, that the Cap complied with the federal reasonableness requirement. With respect to the appellants' motions, the ALJ concluded that they had \\\"to prove by a preponderance of the evidence that the cap, as applied, results in the FQHC not being reimbursed 100 percent of the costs which are reasonable and related to the cost of furnishing services to its Medical Assistance clients.\\\"\\nThe claims for reimbursement went to a hearing on the merits before the ALJ. Appellants produced witnesses who described the preparation of their cost reports and the oversight rendered by their auditors and boards of directors. Appellants also explained the salaries of their highest paid employees by reference to the difficulty faced in obtaining qualified people. DHMH did not present any testimony or documentary evidence. Instead, it asked the ALJ to take judicial notice of certain regulations and of sections of the Medicaid Provider Reimbursement Manual. Thereupon, DHMH moved for the ALJ \\\"to dismiss\\\" appellants' appeals on the merits. In a written opinion, she denied DHMH's motion to dismiss.\\nThe ALJ made findings of fact in each of the appeals. In the CCI case, the principal findings are set forth below (transcript references omitted):\\n\\\"6. The largest part of Community's administrative costs is its salaries and expenses related to operating its centers (rent and utilities).\\n\\\"7. Each Community center has a patient waiting room which is the largest space in each of its centers----\\n\\\"8. Patient waiting rooms, as well as patient bathrooms, medical records rooms and the doctor's offices (but not examining rooms) were all classified under administrative costs (and therefore subject to the cap on administrative expenses) by DHMH's designee.\\n\\\"9. Salaries are developed and reviewed by the senior staff at Community (Executive Director, Medical Director, Director of Operations, Director of Finance). The salaries are then reviewed and approved by the Board of Directors.\\n\\\"10. The position of Medical Director at Community became open three times during the cost years at issue. At one time the position of Medical Director was open for eight months.\\n\\\"11. A background in public health is preferred for the position of Medical Director.\\n\\\"12. One candidate for Medical Director during the cost years at issue rejected Community's offer of the position due to the salary being offered. Approximately six other individuals were not considered for the position after salary was discussed as part of the interviewing process.\\n\\\"13. The Executive Director tries to gauge what salaries are being offered by other non-profit health care centers by talking with his peers. The Executive Director is also aware of salary reviews conducted by the for-profit sector (by groups such as Medical Group Management Association) but these reviews are not a good indication of the salaries in the nonprofit sector.\\n\\\"14. Community seeks to employ physicians who are bilingual but is not always successful because bilingual physicians can command a higher salary than Community can afford to pay.\\n\\\"15. Physicians have left Community for positions with Kaiser or as an associate in a private practice because those positions provide better benefits and a higher salary.\\n\\\"16. The position of Director of Finance became open two times during the cost years at issue. Five candidates for Director of Finance rejected Community's offer of the position due to the salary being offered.\\n\\\"17. Community formerly employed nurse managers but no longer employs nurses, as it can not afford to pay the higher salaries. Instead, Community relies on medical assistants who work under the direct supervision of a physician and are trained in phlebotomy, taking vital signs, and administering immunizations.\\n\\\"18. A national model used by non-profit health centers employs two medical assistants per physician, a patient representative (receptionist) and a manager. Community has at least one physician at each center but if a center has more than one physician the center does not increase the number of medical assistants.\\n\\\"19. The cost reports submitted by Community for the years in question are prepared from Community's Financial Statement which is based on its records (salary records, invoices and expense records, etc.) which are maintained by Community using the accrual basis of accounting.\\n\\\"20. These records (salary records, invoices and expense records) are also used by Community to produce an audited Financial Statement.\\n\\\"21. An A-133 Report is required from all State, local governments and non-profit organizations which expend more than $300,000 per year in federal funding; these audits fall within the purview of the Office of Budget and Management.\\n\\\"22. Because Community expends more than $300,000 in federal funding, it must retain the services of an outside auditor to prepare the A-133 Report.\\n\\\"23. The outside auditor uses Community's Financial Statement in preparing the A-133 Report. In preparing the A-133 Report, the outside auditor does not review Medicaid methodology regulations or consider Medicare cost reimbursement principles. Medicare and Medicaid payments are not considered Federal awards subject to an A-133 report.\\\"\\nIn the People's case, the ALJ found facts as follows (transcript references omitted):\\n\\\"3. The Federal Bureau of Primary Health Care (BPHC) issues program expectations which are a series of guidelines that People's Board and staff must follow and a series of required services that must be provided.\\n\\\"4. Every three years People's is evaluated by the BPHC, which sends three outside experts to review People's performance in the areas of administrative, clinical, fiscal and MIS operations. This review is called the Primary Care Effectiveness Review.\\n\\\"5. As part of the Primary Care Effectiveness Review, People's must prove to BPHC how it sets its salary structure.\\n\\\"6. People's performs salary comparability studies using data from the Maryland Association of Nonprofits and the National Association of Community Health Centers. The Executive Director has studied every position at People's (including file clerks) and also obtained information on salaries by talking with her peers.\\n\\\"7. The Executive Director and the Chief Financial Officer gather data concerning salaries and reviews it with the personnel committee of the Board of Directors which makes the final decision on the salary structure.\\n\\\"8. The Board of Directors reviews and approves People's budget on an annual basis.\\n\\\"9. People's federal grant documents must include a global budget which shows every revenue source and every expense, including Medicaid revenue and anticipated Medicaid revenue.\\n\\\"10. Two of People's health centers are located in high crime areas in Baltimore City.\\n\\\"11. People's did not have to pay rent until 1999 when it acquired a practice in the Govans Community.\\n\\\"12. The largest part of People's administrative costs is its salaries. The second largest expense is the cost of operating the buildings.\\\"\\nThe ALJ's findings Nos. 13 through 17 in the People's appeal are identical with findings Nos. 19 through 23 in the CCI appeal.\\nIn her conclusions of law, the ALJ placed considerable emphasis on the discussion of reasonable costs in the Medicare Provider Reimbursement Manual, Part I, \\u00a7 2102.1 by quoting, inter alia, the following:\\n\\\" Tt is the intent of the program that providers will be reimbursed the actual costs of providing high quality care, regardless of how widely they may vary from provider to provider except where a particular institution's costs are found to be substantially out of line with other institutions in the same area which are similar in size, scope of services, utilization and other relevant factors.\\n\\\" '[Reasonable costs] do not exceed what a prudent and cost-conscious buyer pays for a given item or service[.]' \\\"\\nApplying the above-quoted standards, the ALJ found, in each appeal, that the appellant had shown that its costs were reasonable, because the Clinic was subjected to both internal and external checks on its fiscal practices, and there was no evidence of self-dealing or of any incentive to pay excessive salaries or rent. The ALJ reasoned, in part, that \\\"[t]here was no evidence presented, either through cross examination of the witnesses on behalf of the Appellant or through documents or witnesses for DHMH, that any of [appellants'] costs were 'substantially out of line.' \\\"\\nIn each case, the ALJ concluded:\\n\\\"DHMH provided no evidence that it analyzed comparable not-for-profit health centers (or for-profit institutions) in setting its mathematical formula at 33 and 1/3 percent. Despite DHMH's assertions that the purpose of the cap is to promote efficiency, I am left with the inescapable conclusion that if [the FQHC] somehow managed to cut its administrative costs in half, the administrative cap would be nevertheless be [sic] applied exactly as it was in the cost reports at issue in this appeal. The application of a strict mathematical formula, without any analysis of what constitutes an efficiently operated health center and how the cap achieves that result, is inconsistent with the reasonableness requirements of Federal law. [The FQHC] has persuasively demonstrated a nexus between the cap and not being reimbursed 100 percent of the costs that are reasonable and related to the cost of furnishing services to its Medical Assistance clients. Therefore, Maryland's regulation providing for the administrative cap, as applied in this case[] conflicts with Federal law and is arbitrary and capricious.\\\"\\n(Emphasis added).\\nThe ALJ prepared recommended orders which summarized the arguments and conclusions of law. She reiterated her conclusion, made when ruling on the cross motions for summary decision, \\\"that federal law does not prohibit DHMH from instituting a cap on administrative expenses.\\\" The ALJ further reiterated her conclusion that \\\"Maryland's regulation providing for an administrative cap, as applied in this case, conflicted with [federal law[.]\\\"\\nThe Secretary's Decision\\nDHMH excepted to the ALJ's recommended order that the disputed claims for reimbursement be paid. Appellants filed no exceptions. DHMH took the following exceptions:\\n\\\"(1) The ALJ's legal conclusion that the 33 1/3 percent administrative cap was not reasonable on its face is clearly erroneous.\\n\\\"(2) The ALJ's ruling that Community met its burden and proved . that the imposition of the administrative cap caused it to receive less than 100 percent of its reasonable costs for the cost years at issue is not supported by the evidence.\\n\\\"(3) The ALJ's legal conclusion that Community demonstrated that the regulation providing for an administrative cap, as applied, conflicts with [federal law, is clearly erroneous.\\\"\\nThe Secretary of DHMH rejected the ALJ's conclusion that the disallowed costs should be reimbursed. The Secretary expressly adopted the findings of fact that the ALJ had made on the cross motions for summary decision, but the Secretary declined to adopt the ALJ's reasoning and legal conclusions. With respect to the DHMH exception that assumed that the ALJ had concluded that the Cap was not reasonable on its face, the Secretary ruled that there was ample evidence supporting the reasonableness of the Cap. As evidence, the Secretary pointed to the materials that had been presented by DHMH in support of its motion for summary decision, namely, the public process in the adoption of the Cap, federal approval of the Program, and the utilization of relatively comparable caps in five other states. In addition, the Secretary pointed to a cap, utilized in the Program, on the reimbursable costs of managed care organizations.\\nWith respect to the ALJ's conclusion that the Cap, under federal law, was invalidly applied in the instant cases, the Secretary ruled that the appellants \\\"did not establish that their claimed administrative costs were reasonable.\\\" Although the Secretary accepted the testimony of appellants' witnesses, their testimony \\\"did not demonstrate, as the ALJ concluded, that it was reasonable and necessary for the [appellants] to incur administrative expenses in excess of one-third of their total adjusted patient care-related expenditures in order to provide . quality care.\\\" The appellants, in the Secretary's opinion, did not accomplish their burden of proving, with specificity, the reasonableness of their costs because they did not present \\\"evidence regarding administrative costs among FQHCs in general. They could have introduced salary studies or analyses of local rental costs for space similar to that needed by comparable FQHCs.\\\" Appellants presented no specific evidence that \\\"the range of [their] administrative costs across cost years was in line with other providers or consistent with cost-conscious purchasing.\\\"\\nThe Board of Review\\nAppellants appealed from the Secretary to the Board of Review of DHMH (the Board). After reviewing the record and hearing oral argument from the parties, the Board affirmed the Secretary, without further explanation. Under these circumstances, we consider that the Board's decision was based upon the same rationale as that articulated by the Secretary, and we shall refer hereinafter to the Secretary's ruling. The Board's action constituted the final agency decision for purposes of judicial review under the Administrative Procedure Act. HG \\u00a7 2-207(f)(2).\\nCircuit Court Review\\nAppellants petitioned for judicial review in the Circuit Court for Montgomery County. Their petition alleged that the ALJ had concluded that the Cap conflicted with \\\"federal law and was otherwise arbitrary and capricious.\\\" They referred only to DHMH's exception raising the issue of whether the Cap \\\"conflicted with requirements of federal law[.]\\\" Appellants asked the circuit court to declare the Cap invalid. Appellants further sought an order reversing the Secretary's decision and directing computation of their reimbursable costs without applying the Cap.\\nThe court, after simply noting that the Board's decision was supported by substantial evidence, affirmed the Board. This appeal followed.\\nAppellants' Arguments\\nFrom appellants' brief in this Court, we distill that they advance the following arguments:\\nI. The circuit court erred in applying a substantial evidence test.\\nII. The Secretary erred in not accepting the ALJ's conclusions of law, after accepting the ALJ's findings of fact.\\nIn this connection, appellants argue that the \\\"sole consideration before DHMH [when adopting the Cap] was cost savings.\\\" They put aside, as irrelevant, the public process in adopting the Cap, the use of caps for reimbursement of other types of Medicaid providers, and the federal approval of the Program. They submit that evidence of cost limits imposed by other states did not \\\"[a]lleviate DHMH of [performing [i]ts [o]wn [a]nalysis.\\\"\\nIII. \\\"[D]HMH Never Examined the Limits at Issue to Determine Whether They Unlawfully Curtailed the Health Centers' Reasonable Costs.\\\"\\nIn an argument consisting of exactly eight lines in their brief, appellants assert that DHMH was required, by general administrative law principles and by the HCFA advice to State Medicaid Directors of May 8, 1995, to have performed an analysis before it could assert that costs in excess of the Cap were unreasonable.\\nWe shall consider these arguments against the framework of the four theoretically possible outcomes with which we introduced this opinion.\\nIs the Cap Invalid Under All Circumstances?\\nThe ALJ did not recommend deciding that the Cap was invalid under all circumstances; she recommended deciding that it was invalid as applied to appellants. Although DHMH was not aggrieved by any holding of per se invalidity, it included that issue in its exceptions. Apparently out of an abundance of caution, the Secretary opined on the facial validity of the Cap. We shall assume that the raising of the issue of per se invalidity by DHMH inured to the benefit of appellants, who thereby were entitled to assert per se invalidity before the Board, the circuit court, and in this Court.\\nAt oral argument in this Court, in response to questions from the Court, appellants denied that they contend that federal law precluded use of a cap on reimbursement of costs claimed under a Medicaid program, and they denied that they contend that Maryland's having fixed its cap on administrative expenses at 33-1/3% was precluded by federal law. Thus, it appears that appellants' position for per se invalidity of the Cap is to be found in their argument III, supra, i.e., that DHMH did not demonstrate that it performed an analysis of costs when adopting the Cap.\\nIn essence, appellants contend that any allowable type of administrative cost, actually incurred, is reasonable, unless DHMH can prove that administrative costs in excess of 33-1/3% of total costs are always unreasonable. Phrased another way, appellants contend that Maryland could not cap administrative expenses at a fixed percentage of total allowable costs unless it first had undertaken a study demonstrating that administrative costs above the chosen percentage are always unreasonable.\\nThe record reflects that the Cap was adopted in accordance with the Maryland Administrative Procedure Act and that it was approved by HCFA as complying with federal law. Consequently, the Cap is presumed to be valid, and the burden is upon appellants to demonstrate its invalidity. In Maryland, the test for determining the validity of the adoption of a regulation is whether it contradicts the language or purpose of the statute authorizing the regulation. See Comptroller of the Treasury v. Citicorp Int'l Communications, Inc., 389 Md. 156, 180, 884 A.2d 112, 126 (2005) (citing Lussier v. Maryland Racing Comm'n, 343 Md. 681, 684 A.2d 804 (1996)).\\nAppellants do not direct our attention to any federal or Maryland statute that required DHMH to undergird or document its conclusion, pegging the Cap at 33-1/3% of total costs, in order for the regulation to conform to governing statutes. Instead, appellants refer us to Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), where the Court held to be arbitrary and capricious the rescission by the U.S. Secretary of Transportation of a National Highway Traffic Safety Administration standard, that would have required manufacturers to equip motor vehicles with passive restraints (automatic seat belts) or airbags. The governing statutory criteria in that case expressly required consideration by the Secretary of \\\" 'relevant available motor vehicle safety data,' \\\" id. at 33, 103 S.Ct. at 2862, but the record demonstrated that the rescission reflected \\\"a change in plans by the automobile industry.\\\" Id. at 38, 103 S.Ct. at 2864.\\nAs representing federal law, appellants point to the May 8, 1995 HCFA communication to State Medical Directors. Presumably appellants rely on that portion of the communication advising that \\\"the State agency must: 1) determine and assure its system is based upon, and covers, the reasonable costs of providing FQHC\\\" services. That communication, however, further states that \\\"State agencies are free to establish and apply their own tests of efficiency and economy when paying FQHCs, as long as the requirements contained in section 6303 of the State Medicaid Manual.... are met.\\\" The May 8, 1995 document also expressly recognized that \\\"costs containment mechanisms (i.e., caps and screens)\\\" were permissible. This communication does not demonstrate a federal requirement that a state must conduct an economic survey in order to avoid per se invalidity of a cap under federal law.\\nConsistent with both of the bases touched in the federal directive, we hold that the federal requirement for state reimbursement of 100% of an FQHC's reasonable cost is satisfied by a state system that affords an FQHC the opportunity to demonstrate that its costs, albeit in excess of a cap, are reasonable.\\nIs the Cap Valid as Applied in this Case?\\nWhether the Cap was validly applied in the instant matter is the issue generated by appellants' argument II, that the Secretary erred in rejecting the ALJ's conclusions, after having accepted the ALJ's findings of fact. Based on the specific findings of fact which we have set forth, supra, the ALJ concluded that appellants' administrative costs, in excess of the Cap, were reasonable. The latter is either a conclusion of law, a mixed question of fact and law, or a question of fact. Assuming, most favorably to appellants, that reasonableness in this case is a question of fact, that determination is, nevertheless, a matter of inference to be drawn from all of the primary facts in the record. Where, as here, a hearing officer and the final decision-maker in an agency differ with respect to a question of fact, Maryland cases recognize a distinction between credibility-based determinations of fact and inferences drawn from primary facts.\\nJudge Motz (now a judge of the United States Court of Appeals for the Fourth Judicial Circuit), writing for this Court in Department of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 641 A.2d 899 (1994), clearly articulated the distinction.\\n\\\"[W]hen an administrative agency overrules the recommendation of an ALJ, a reviewing court's task is to determine if the agency's final order is based on substantial evidence in the record. In making this judgment, the ALJ's findings are, of course, part of the record and are to be considered along with the other portions of the record. Moreover, where credibility is pivotal to the agency's final order, ALJ's findings based on the demeanor of witnesses are entitled to substantial deference and can be rejected by the agency only if it gives strong reasons for doing so. If, however, after giving appropriate deference to the ALJ's demeanor-based findings there is sufficient evidence in the record to support both the decision of the ALJ and that of the agency, the agency's final order is to be affirmed \\u2014 even if a court might have reached the opposite conclusion. This approach preserves the rightful roles of the ALJ, the agency, and the reviewing court: it gives special deference to both the ALJ's demeanor-based credibility determinations and to the agency's authority in making other factual findings and properly limits the role of the reviewing court.\\\"\\nId. at 302-03, 641 A.2d at 908-09. See also Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Consumer Prot. Div. v. Morgan, 387 Md. 125, 196-203, 874 A.2d 919, 961-65 (2005); Anderson v. Department of Pub. Safety & Corr. Servs., 330 Md. 187, 623 A.2d 198 (1993).\\nIn Shrieves, we quoted favorably from Penasquitos Village, Inc. v. National Labor Relations Bd., 565 F.2d 1074 (9th Cir.1977), where the distinction was expressed in terms of an ALJ's testimonial inferences as compared with an agency's derivative inferences. We said:\\n\\\" Weight is given the administrative law judge's determinations of credibility for the obvious reason that he or she sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records. All aspects of the witness's demeanor \\u2014 including the expression of his countenance, how he sits or stands, whether he is inordinately nervous, his coloration during critical examination, the modulation or pace of his speech and other nonverbal communication \\u2014 may convince the observing trial judge that the witness is testifying truthfully or falsely. These same very important factors, however, are entirely unavailable to a reader of the transcript, such as [an agency or reviewing court]. But it should be noted that the administrative law judge's opportunity to observe the witnesses' demeanor does not, by itself, require deference with regard to his or her derivative inferences. Observation makes weighty only the observer's testimonial inferences.\\n\\\" 'Deference is accorded [an agency's] factual conclusions for a different reason \\u2014 [the agency is] presumed to have broad experience and expertise in [the area].... Further, it is the [agency] to which [the legislature] has delegated administration of the [statute]. The [agency], therefore, is viewed as particularly capable of drawing inferences from the facts.... Accordingly, . a [reviewing court] must abide by the [agency's] derivative inferences, if drawn from not discredited testimony, unless those inferences are irrational, . tenuous or unwarranted.... As already noted, however, the [agency], as a reviewing body, has little or no basis for disputing an administrative law judge's testimonial inferences.' \\\"\\nShrieves, 100 Md.App. at 300, 641 A.2d at 907 (quoting Penasquitos Village, 565 F.2d at 1078-79 (internal quotations and citations omitted)).\\nConsequently, in the instant matter, the Secretary was not restrained by the recommended conclusion drawn by the ALJ; rather, the Secretary was free to make the determinative inference, based on the entire record, that the excess costs were unreasonable, if that inference was supported by substantial evidence.\\nIs the Secretary's Decision Supported by Substantial Evidence?\\nAs demonstrated above, the legal issue before us is whether the Secretary's decision is supported by substantial evidence. Thus, appellants' argument I, that the circuit court erred by applying a substantial evidence test, misses the mark.\\nThe Secretary's finding that appellants' administrative costs, in excess of 33-1/3% of total costs, were unreasonable is supported by the presumption of unreasonableness created by the validly adopted Cap regulation, by the approval of that presumption by federal authorities, and by the recognition of the unreasonableness of excess costs implicit in other states' adoptions of comparable caps on administrative expenses. Phrased another way, the Secretary did not act arbitrarily or capriciously in declining to draw the inference (which likewise may have been supported by substantial evidence) that appellants' costs were reasonable. Nor did the Secretary act arbitrarily in concluding that appellants' primary evidence, due to the absence of specific comparisons to administrative costs of other FQHCs, did not persuade him that appellants' administrative costs, in excess of the Cap, were reasonable.\\nThus, it is unnecessary to decide if the Cap is a valid conclusive presumption.\\nFor all the foregoing reasons, we shall affirm.\\nJUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED.\\nCOSTS TO BE PAID BY THE APPELLANTS.\\n. In their petition for judicial review, appellants also named as a defendant, S. Anthony McKann, in his official capacity as Secretary of DHMH. We shall consider that there is but one appellee, DHMH.\\n. \\\"An FQHC is an entity receiving direct grants from the United States to provide primary and other health care services to 'medically under-served' communities. 42 U.S.C. \\u00a7 254b, 1396d(Z) (2)(B) (2000). In addition to receiving direct grants, an FQHC can also bill for providing Medicare or Medicaid services. See 42 U.S.C. \\u00a7 1395k(a)(2)(D)(ii), 1396a (bb)(2) (2000). This dual funding mechanism allows the FQHC to allocate most of its direct grant dollars towards treating those who lack even Medicare or Medicaid coverage. See H.R.Rep. No. 101-247, at 392-93 (1989), reprinted in 1989 U.S.C.C.A.N. 1906, 2118-19.\\\" Community Health Ctr. v. Wilson-Coker, 311 F.3d 132, 134 n. 2 (2d Cir.2002).\\n. CCI is described as an FQHC \\\"look-alike.\\\" No one argues that this characterization has any bearing on the outcome here.\\n. People's also appealed a DHMH disallowance relating to 1999. It was DHMH-MCP-13-200100005 in OAH. The disallowance in that case was based, in part, on the regulation creating a cap for certain types of costs that is involved in the other cases and, in addition, on a different section of the regulations. There was no decision by OAH on that additional issue. Thus, there is no final agency decision in the appeal for 1999 by People's, and that matter is not before us.\\n. In this opinion, references to statutes and regulations of the Medicaid Program will be to the provisions as codified at the relevant time, unless otherwise noted.\\n. For brevity's sake, we refer to the Secretary, although the decision at that level was rendered by a designee of the Secretary.\\n. We are perplexed by this exception, in relation to the ALJ's rationale. The exception apparently represents DHMH's conclusion from the denial of its motion for summary decision. Yet, in the section of its exceptions dealing with the procedural history of the appellants' cases, DHMH said that the ALJ \\\"did not rale, however, that the cap was unreasonable on its face.\\\"\\n. In this prayer for relief, appellants invoked Maryland Code (1984, 2004 Repl.Vol.), \\u00a7 10-125 of the State Government Article. That section, in part, provides: \\\"A person may file a petition for a declaratory judgment on the validity of any regulation, whether or not the person has asked the unit to consider the validity of the regulation.\\\" \\u00a7 10-125(a)(1).\"}"
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+"{\"id\": \"4279024\", \"name\": \"Tommy Garcia BONILLA v. STATE of Maryland\", \"name_abbreviation\": \"Bonilla v. State\", \"decision_date\": \"2015-05-22\", \"docket_number\": \"No. 63\", \"first_page\": \"1\", \"last_page\": \"15\", \"citations\": \"443 Md. 1\", \"volume\": \"443\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:46:05.156695+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tommy Garcia BONILLA v. STATE of Maryland.\", \"head_matter\": \"115 A.3d 98\\nTommy Garcia BONILLA v. STATE of Maryland.\\nNo. 63,\\nSept. Term, 2014.\\nCourt of Appeals of Maryland.\\nMay 22, 2015.\\nErica J. Suter (The Law Offices of Erica J. Suter, LLC, Greenbelt, MD), on brief, for Petitioner.\\nMichelle M. Martin, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.\\nArgued before: HARRELL, BATTAGLIA, GREENE, ADKINS, McDonald, WATTS and DALE R. CATHELL (Retired, Specially Assigned), JJ.\", \"word_count\": \"4370\", \"char_count\": \"26341\", \"text\": \"ADKINS, J.\\nIn Maryland, \\\"[a]n illegal sentence is a sentence 'not permitted by law.' \\\" State v. Wilkins, 398 Md. 269, 273, 900 A.2d 765, 767-68 (2006) (citation omitted). Pursuant to Maryland Rule 4-345(a), a \\\"court may correct an illegal sentence at any time.\\\" This Court has \\\"held that a sentence that exceeds the sentence to which the parties agreed as part of a plea agreement is an illegal sentence within the meaning of Rule 4-345(a).\\\" Cuffley v. State, 416 Md. 568, 575 n. 1, 7 A.3d 557, 561 n. 1 (2010) (emphasis added) (citing Dotson v. State, 321 Md. 515, 521-22, 583 A.2d 710, 713 (1991)). In this case, we consider whether a sentence is illegal under Rule 4-345(a) when a sentencing court imposes a sentence below the sentence agreed to in a binding plea agreement without the State's consent.\\nFACTS AND LEGAL PROCEEDINGS\\nIn 1989, a Prince George's County grand jury indicted Petitioner, Tommy Garcia Bonilla, on two counts of first degree murder and several other serious crimes. Count I of the indictment charged Bonilla with the first degree murder of Jose Lozano, and Count III charged Bonilla with the first degree murder of Ruth Vasquez.\\nAt an August 28, 1990 hearing in the Circuit Court for Prince George's County, Bonilla pleaded guilty to Counts I and III pursuant to a binding plea agreement with the State. This agreement provided that Bonilla would, if called by the State, testify truthfully against one of his co-defendants, Freddy DeLeon, and would plead guilty to Counts I and III. In exchange, the State agreed that Bonilla would receive a sentence of life imprisonment on Count III with a consecutive sentence of life imprisonment, with all but 20 years suspended, on Count I. The State further agreed that it would withdraw its notice of intent to seek a sentence of life without the possibility of parole and would enter a nolle prosequi to the remaining counts in the indictment. This was presented to the judge as a proposed binding plea agreement. After a proffer of facts by the State, the hearing judge determined that Bonilla was knowingly and voluntarily pleading guilty and accepted his guilty pleas. The hearing judge then approved the plea agreement \\u2014 stating on the record that he was \\\"bound\\\" by its terms \\u2014 and postponed sentencing until after DeLeon's trial.\\nOn February 20, 1991, having fulfilled his obligation to testify truthfully against DeLeon, Bonilla appeared before the Circuit Court for sentencing. When outlining the sentencing terms of the plea agreement, defense counsel reversed the terms \\u2014 incorrectly stating that the Parties agreed to a sentence of life imprisonment on Count I and a consecutive sentence of life imprisonment, \\\"with all but 20 years suspended, on Count III. The State did not recognize this error and agreed with the sentence presented by defense counsel. Consistent with the Parties' representations, the court sentenced Bonilla to life imprisonment on Count I and a consecutive sentence of life imprisonment, with all but 20 years suspended, on Count III.\\nOver two decades later, on November 7, 2011, Bonilla filed a Motion to Correct Illegal Sentence and Motion for Credit Against Time Spent in Custody, arguing that his sentence on Count I was illegal because it \\\"exceeded] the sentence agreed upon by the parties under the terms of the binding plea agreement.\\\" In response, the State filed a Motion to Correct the Entire Sentence, contending that the sentences on Count I and Count III were illegal because they deviated from the binding plea agreement. On February 7, 2012, the Circuit Court issued a Memorandum and Order, concluding that the sentences on both counts were illegal and ordering a resentencing \\\"in accordance with the original plea agreement.\\\" At the resentencing hearing, the Circuit Court resentenced Bonilla to life imprisonment on Count III and a consecutive sentence of life imprisonment, with all but 20 years suspended, on Count I. Bonilla appealed.\\nIn a reported opinion authored by Judge Salmon, the Court of Special Appeals affirmed the judgment of the sentencing court, agreeing that Bonilla's original sentence on Count III was illegal because it was below the binding plea agreement. Bonilla v. State, 217 Md.App. 299, 92 A.3d 595 (2014), cert, granted, 440 Md. 114, 99 A.3d 778 (2014). Bonilla petitioned for writ of certiorari, which this Court granted to answer the following question:\\nDid the Court of Special Appeals err by affirming the Circuit Court's judgment that a sentence below a binding plea agreement constitutes an illegal sentence [within the meaning of Rule 4-345(a) ]?\\nBecause we answer no, we shall affirm the judgment of the Court of Special Appeals.\\nSTANDARD OF REVIEW\\nWe review the legal issue of the sentencing in this case as a matter of law. See Cuffley, 416 Md. at 581, 7 A.3d at 564 (\\\"Whether a trial court has violated the terms of a plea agreement is a question of law, which we review de novo.\\\"); Blickenstaff v. State, 393 Md. 680, 683, 904 A.2d 443, 445 (2006) (\\\"We shall address the legal issue of the sentencing in the case at bar under a de novo standard of review.\\\").\\nDISCUSSION\\nWhether A Sentence Below A Binding Plea Agreement Is \\\"Inherently Illegal\\\" Within The Meaning Of Rule 4-345(a)?\\nWe begin by briefly defining what constitutes an illegal sentence under Rule 4-345(a). For a sentence to be illegal within the meaning of Rule 4-345(a) \\\"the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding.\\\" Matthews v. State, 424 Md. 503, 512, 36 A.3d 499, 505 (2012). Accordingly, \\\"we have denied relief pursuant to Rule 4-345(a) because the sentences imposed were not inherently illegal, despite some form of error or alleged injustice.\\\" Id. at 513, 36 A.3d at 505 (emphasis added).\\nBonilla argues that his original sentence on Count III was legal under Rule 4-345(a) because it was the product of an \\\"error in pronouncement\\\" and was not inherently illegal. The State, concurring there was error, disagrees that the sentence was legal, arguing that \\\"any sentence imposed in violation of a binding plea agreement constitutes an inherently illegal sentence, whether a sentence exceeds or falls below the plea agreement.\\\" To resolve this dispute, we turn first to Mary land Rule 4 \\u2014 243(c)(3)\\u2014the Rule that governs a sentencing court's obligations when imposing a sentence pursuant to a binding plea agreement.\\nRule 4-243(c)(3) now provides, as it did in 1991 when Bonilla was first sentenced, that when \\\"[a] plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement.\\\" (Emphasis added.) In this case, Rule 4-243(c)(3) required the sentencing court to impose the sentencing terms in the binding plea agreement, and the Parties had agreed to a sentence of life imprisonment on Count III \\u2014 not the lower sentence of life imprisonment, with all but 20 years suspended, that the sentencing court imposed. The State never consented to this lower sentence. Because the Maryland Rules \\\"have the force of law,\\\" Dotson, 321 Md. at 523, 583 A.2d at 714 (citation omitted), the sentencing court committed legal error when it deviated from the plea agreement by imposing a lower sentence on Count III. This does not end our inquiry, however, because in order to determine whether the original sentence on Count III was illegal under Rule 4-345(a), we must resolve whether the sentencing court's error rendered the sentence inherently illegal.\\nIn Dotson and Cuffley, we considered whether a sentence is inherently illegal within the meaning of Rule 4-345(a) when a sentencing court violates Rule 4-243(c)(3) by imposing a sentence that exceeds the binding plea agreement. In Dotson, the defendant pleaded guilty to two counts of sexual offense in the second degree, and the trial court, pursuant to a plea agreement that it approved, sentenced him to concurrent sentences of 15 years imprisonment for each conviction. 321 Md. at 519-20, 583 A.2d at 712. The defendant moved for reconsideration of his sentence by a review panel. Id. at 520, 583 A.2d at 712. The panel vacated the trial court's sentence and imposed a sentence of 15 years on each conviction to run consecutively rather than concurrently \\u2014 thereby increasing the sentence from 15 to 30 years. Id. at 521, 583 A.2d at 713. The defendant appealed, arguing that the sentence imposed by the review panel was illegal. Id.\\nWe agreed that the review panel's sentence was illegal, emphasizing that Rule 4 \\u2014 243(c)(3) required the trial judge to sentence the defendant in accordance with the plea agreement: \\\"When the judge accepted the pleas, the agreement as to punishment came into full bloom; it stood approved by the judge. Thereafter, the agreement was inviolate, and the judge was required under the dictate of Rule 4-243(c)(3) to embody in the judgment the agreed sentence.\\\" Id. at 523, 583 A.2d at 714. Because \\\"[o]ur rules have the force of law,\\\" we determined that Rule 4 \\u2014 243(c)(3) dictated that the 15-year sentence provided in the plea agreement was the maximum sentence \\\"allowable by law.\\\" Id. (citation omitted). Thus, we reasoned, the review panel's sentence was inherently illegal because it exceeded the plea agreement. Id. at 524, 583 A.2d at 714.\\nOver a decade later, in Cuffley, we again considered whether a sentence that exceeds the terms of a binding plea agreement is illegal. Cuffley pleaded guilty to robbery pursuant to a plea agreement under which the State agreed to a guidelines sentence of four to eight years. Cuffley, 416 Md. at 573-74, 7 A.3d at 560. After ensuring that Cuffley was knowingly and voluntarily entering the plea, the hearing court accepted the plea agreement pursuant to Rule 4-243(c) and bound itself to its terms. Id. at 574, 7 A.3d at 560. At the ensuing sentencing hearing, the court imposed a sentence of 15 years imprisonment with all but six years suspended. Id.\\nCuffley filed a Rule 4-345(a) motion, contending that his sentence was illegal because it exceeded the maximum sentence of eight years to which the court had bound itself. Id. at 574-75, 7 A.3d at 561. The sentencing court denied the motion, concluding that it had discretion to suspend time, this discretionary power was \\\"alluded to\\\" at the plea hearing, and Cuffley \\\"got exactly what he bargained for.\\\" Id. at 576, 7 A.3d at 561. We disagreed. After emphasizing that Rule 4-243(c)(3) \\\"mandates that the court, upon accepting and approving the agreement, 'shall embody in the judgment the agreed sentence,' \\\" id. at 581, 7 A.3d at 565 (emphasis in original), we explained that \\\"by its express terms, Rule 4-243 requires strict compliance with its provisions,\\\" id. at 582, 7 A.3d at 565. We then applied Rule 4-243(c)(3) to Cuffley's plea agreement to conclude that because the sentencing court \\\"breached the agreement by imposing a sentence that exceeded a total of eight years' incarceration[,] [t]he sentence [was] illegal.\\\" Id. at 586, 7 A.3d at 567.\\nTwo years after Cuffley, in Mattheius v. State, we further elaborated on our conclusions in Cuffley. We explained that \\\"Cuffley adhered to our precedent limiting relief pursuant to Rule 4-345(a) to challenges to inherently illegal sentences.\\\" Matthews, 424 Md. at 517, 36 A.3d at 508 (emphasis added). We emphasized that because Cuffley's sentence varied from the sentence the court was required to impose pursuant to Rule 4-243(c)(3), \\\"the sentence was not merely the product of procedural error; rather it was inherently illegal and thereby subject to correction under Rule 4-345(a).\\\" Id. at 518, 36 A.3d at 508 (emphasis added); see also id. at 517, 36 A.3d at 507 (\\\"We viewed the illegality [of Cuffley's sentence] as inhering in the sentence itself; the sentence, in other words, was not merely the product of procedural or trial court error.\\\" (emphasis added) (footnote omitted)).\\nAs Bonilla recognizes, the sentences this Court declared inherently illegal in Dotson and Cuffley exceeded the plea agreements. Neither our reasoning nor our holdings in those cases, however, suggest that striking a sentence as illegal can only occur when a sentence exceeds the terms of a binding plea agreement. In both cases, we determined that the sentences were illegal because the sentencing courts violated Rule 4-243(c)(3) by deviating from the binding plea agreements. See Dotson, 321 Md. at 523, 583 A.2d at 714 (\\\"[T]he judge was required under the dictate of Rule 4-243(c)(3) to embody in the judgment the agreed sentence.\\\"); Cuffley, 416 Md. at 581-82, 7 A.3d at 565 (Rule 4-243(c)(3) mandates that after accepting a plea agreement, the court \\\"shall embody in the judgment the agreed sentence\\\" and \\\"Rule 4-243 requires strict compliance\\\" (emphasis in original)).\\nChertkov v. State, 335 Md. 161, 642 A.2d 232 (1994) is also instructive because it not only bolsters our broad reading of Dotson, but also addresses whether a sentence is inherently illegal under Rule 4-345(a) when a sentencing court violates Rule 4-243(c)(3) by imposing a sentence below a binding plea agreement. In that case, the defendant negotiated a plea agreement with the State that provided for concurrent three-year terms of incarceration with all but 179 days suspended. Id. at 164, 642 A.2d at 233. The Circuit Court for Montgomery County approved the plea agreement and sentenced the defendant in accordance with its terms. Id. at 165, 642 A.2d at 234. The defendant filed a motion for reconsideration of the sentence, requesting that the sentencing court strike the findings of guilt and impose probation before verdict pursuant to Maryland Code (1957, 1992 Repl.Vol.), Article 27, \\u00a7 641. Id. Over the State's objection, the court granted the relief requested, and the State appealed. Id. The Court of Special Appeals reversed the Circuit Court, concluding that the State was entitled to appeal and determining that a trial court had no authority to modify a sentence imposed pursuant to a binding plea agreement. Id. at 165-66, 642 A.2d at 234.\\nWe dismissed the appeal, concluding that the State had no right to appeal the trial court's modification of the sentence. Id. at 163, 175, 642 A.2d at 233, 239. Although we recognized that our decision to dismiss the appeal would ordinarily end our inquiry, we stated that because \\\"[p]lea bargaining is a significant, if not critical, component of the criminal justice system,\\\" id. at 170-71, 642 A.2d at 237 (citation omitted), we would \\\"express our views concerning whether a binding plea agreement precludes a trial court from modifying a sentence imposed pursuant to it,\\\" id. at 171, 642 A.2d at 237. After reciting the pertinent provisions of Rule 4-243 and reviewing our decision in Dotson, we concluded that Rule 4-243(c)(3) prohibits a sentencing court from imposing a sentence below a binding plea agreement if the parties do not agree to the deviation:\\nSubsection (c)(2)[ ] makes clear that until the trial judge approves a plea agreement, it is not binding on the court. Conversely, and necessarily, when the court does approve a plea agreement, because it is required that the sentence or disposition it contemplates must be embodied in the court's judgment, it is. Indeed, the court may impose a disposition more favorable to the defendant only if the parties agree.\\nId. at 172, 642 A.2d at 237 (emphasis added) (internal citation omitted). We determined that Dotson supports the conclusion that sentences below binding plea agreements are illegal:\\nFrom Dotson and Rule 4-243(c)(3), it is clear that a court that binds itself to fulfill the plea agreement thereby relinquishes his or her right to modify the sentence, thereby imposed, absent the consent of the parties, and, in particular, in the case of reducing the sentence, absent the consent of the State.\\nId. at 174-75, 642 A.2d at 239 (emphasis added).\\nConsidering Dotson, Cujfley, Matthews, and Chertkov, we conclude that when a sentencing court violates Rule 4-243(c)(3) by imposing, without consent, a sentence that falls below a binding plea agreement, the resulting sentence is inherently illegal under Rule 4-345(a). Thus, in this case, because the original sentence on Count III was below the binding plea agreement and the State did not consent to this deviation, the sentence was inherently illegal and subject to correction under Rule 4-345(a).\\nPreserving Fairness, Equity, And Certainty\\nSound policy also supports our foregoing conclusion. Bonilla argues that \\\"[bjecause Rule 4-345(a) permits the correction of an illegal sentence at any time, the definition of an illegal sentence [should be] construed narrowly in the interests of predictability, finality, and judicial economy.\\\" We do not agree that narrowly construing Rule 4-345(a) to conclude that sentences below binding plea agreements are legal would advance judicial economy. Such interpretation, moreover, would require us to ignore the principles of fairness and equity and undermine the certainty that plea agreements provide.\\nIn Cuffley, we confirmed that \\\"fairness and equity govern the enforcement of plea agreements.\\\" 416 Md. at 580, 7 A.3d at 564 (citing State v. Brockman, 277 Md. 687, 698, 357 A.2d 376, 383 (1976)). As such, when the State and a defendant have entered a binding plea agreement, each party is entitled to the benefit of its bargain. Concluding that sentences below binding plea agreements are legal under Rule 4-345(a) would be unfair to the State by depriving it of the benefit of its bargain. For example, in this case, the State agreed to withdraw its notice of intent to seek a sentence of life without the possibility of parole and enter a nolle prosequi to several counts on the indictment. In exchange, Bonilla agreed, among other actions, to plead guilty to Count III and accept a sentence of life imprisonment. It would be unfair and inequitable to prevent the State from challenging the original, overly low, sentence on Count III when it bargained for a higher sentence, particularly after Bonilla had sought and obtained a reduction of the overly high sentence on Count I.\\nFor us to conclude that sentences below binding plea agreements are legal would undermine the certainty that plea agreements provide. \\\"It is well documented that plea [agreements] play a crucial role in the system of criminal justice in Maryland and throughout the United States.\\\" Cuffley, 416 Md. at 577, 7 A.3d at 562. Plea agreements play a crucial role in our criminal justice system because they provide certainty. See Dotson, 321 Md. at 518, 583 A.2d at 711 (citation omitted). In Dotson, we explained that determining that the review panel's sentence, which exceeded the plea agreement, was legal would \\\"violate the sanctity of the plea agreement process\\\" and undermine the certainty that plea agreements provide. Id. at 524, 583 A.2d at 714 (citation omitted). Concluding that a sentence below a binding plea agreement is legal would also undermine this certainty.\\nThe State and defendants would be discouraged from entering plea agreements if they could not be certain that sentencing courts will comply with binding plea agreements. In Dotson, we warned that \\\"[i]f a defendant could not rely upon the plea bargain, the chilling effect upon the very institution of plea bargaining would be devastating.\\\" Id. This \\\"chilling effect\\\" is not limited to violations of plea agreements that prejudice the defendant:\\nJust as a defendant would be loathe to participate in plea bargaining if he or she could not be certain that the bargain that he or she made would be fulfilled, so too would the State. There would be no incentive for the State to engage in plea bargaining if it were possible for a defendant to enter into a binding plea agreement only to have the sentence contemplated by that agreement modified a short time later.\\nChertkov, 335 Md. at 174, 642 A.2d at 238-39 (emphasis added); see also Sweetwine v. State, 42 Md.App. 1, 12, 398 A.2d 1262,1269 (1979) (\\\"If the prosecutor cannot rely upon the plea bargain, the potential 'chilling effect' upon the very institution of plea bargaining could be devastating.\\\"), aff'd, 288 Md. 199, 421 A.2d 60 (1980).\\nDiscouraging the State or the defendant from entering plea agreements would have wide-ranging adverse effects because by promoting finality, certainty, and judicial economy, \\\"plea agreements benefit the courts, the prosecution, the defendant, the victim, and the general public.\\\" Dotson, 321 Md. at 518, 583 A.2d at 711. Because \\\"plea agreements account for the disposition of an overwhelming percentage of all criminal cases,\\\" they \\\"prevent[ ], or at least reliev[e], the overcrowding of our courts.\\\" Id. at 517, 583 A.2d at 710-11 (citations and internal quotation marks omitted). By terminating charges, plea agreements\\nlead[ ] to [the] prompt and largely final disposition of most criminal cases; . avoid[ ] much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; . protect[ ] the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, . enhance[ ] whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.\\nId. at 517, 583 A.2d at 711 (second alteration in original) (citation and internal quotation marks omitted). Moreover, \\\"plea agreements eliminate many of the risks, uncertainties and practical burdens of trial, permit the judiciary and prosecution to concentrate their resources on those cases in which they are most needed, and further law enforcement by permitting the State to exchange leniency for information and assistance.\\\" Id.\\nPlea agreements are so beneficial that \\\"within reason, [they] should be encouraged.\\\" Id. Concluding that sentences below binding plea agreements are legal would have the opposite effect \\u2014 it would discourage plea agreements by reducing the incentive for the State to enter them. This result should be avoided.\\nCONCLUSION\\nIn conclusion, we hold that when a sentencing court violates Rule 4-243(c)(3) by imposing a sentence below a binding plea agreement without the State's consent, the sentence is inherently illegal and subject to correction under Rule 4-345(a). Accordingly, we affirm the judgment of the Court of Special Appeals.\\nJUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.\\n. Throughout this Opinion, we use \\\"binding plea agreement\\\" to refer to a plea agreement the court has approved pursuant to Maryland Rule 4-243(c).\\n. We shall refer to Bonilla and the State collectively as the \\\"Parties.\\\"\\n. The Court of Special Appeals summarized the proffered facts to which Bonilla admitted:\\n1) [AJbout one month before the murders of Mr. Lozano and Ms. Vasquez, [Bonilla] and [DeLeon] formed a plan; 2) the plan was to enter apartment No. 508, located at 1802 Metzerott Road, in Prince George's County, to kill whomever they found there and to steal cocaine that they believed to be in the apartment; 3) on April 14, 1989, Bonilla and DeLeon entered apartment 508, ransacked it, and stole the cocaine and jeweliy they found in the apartment; 4) while in the apartment, DeLeon, using a 9 mm handgun, shot Jose Lozano once in the back of the head, killing him instantly; and 5) after Mr. Lozano was killed, Bonilla, using a 38 caliber handgun, killed Ruth Vasquez by shooting her once in the chest.\\nBonilla v. State, 217 Md.App. 299, 301, 92 A.3d 595, 596 (2014), cert, granted, 440 Md. 114, 99 A.3d 778 (2014).\\n. During the sentencing hearing, the State made it clear that it would not consent to a sentence below the binding plea agreement:\\nThis is a[ binding] plea and I want to make the record clear. There has been no discussion nor any agreement by the State of any reconsideration.\\nThe law in 24 states, as it stands right now, is that if the Court, the defendant, and State enter into a [binding plea] agreement that sentence will not be changed unless there's consent by all three parties.\\nThe State does not consent to that nor does it expect to.\\n(Emphasis added.) The State only requested a sentence of life imprisonment, with all but 20 years suspended, on Count III because that was the sentence defense counsel mistakenly requested at the beginning of the sentencing hearing. The language quoted above demonstrates that the State never consented to a sentence below the binding plea agreement.\\n. Although Dotson did not explicitly address Rule 4-345(a), in Cuffley v. State, we confirmed that Dotson stands for the proposition that when a sentencing court violates Rule 4-243(c)(3) by imposing a sentence that exceeds a binding plea agreement, the sentence is inherently illegal under Rule 4-345(a). See 416 Md. 568, 575 n. 1, 7 A.3d 557, 561 n. 1 (2010) (\\\"We have held that a sentence that exceeds the sentence to which the parties agreed as part of a plea agreement is an illegal sentence within the meaning of Rule 4 \\u2014 345(a).\\\" (citing Dotson v. State, 321 Md. 515, 521-22, 583 A.2d 710, 713 (1991))).\\n. Maryland Rule 4-243(c)(2) provides, as it did at the time of our decision in Chertkov:\\nNot Binding on the Court. The agreement of the State's Attorney relating to a particular sentence, disposition, or other judicial action is not binding on the court unless the judge to whom the agreement is presented approves it.\\nSee also Chertkov v. State, 335 Md. 161, 171, 642 A.2d 232, 237 (1994).\\n. During the sentencing hearing, the State explained that agreeing not to pursue a sentence of life without the possibility of parole represented a large 'break\\\" for Bonilla because first degree murder \\\"is the type of crime . that merits that kind of punishment.\\\"\"}"
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+"{\"id\": \"4370561\", \"name\": \"WHITING-TURNER CONTRACTING COMPANY, EMPLOYER, AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, INSURER v. EVERETT J. McLAUGHLIN, CLAIMANT\", \"name_abbreviation\": \"Whiting-Turner Contracting Co. v. McLaughlin\", \"decision_date\": \"1971-03-09\", \"docket_number\": \"No. 282\", \"first_page\": \"360\", \"last_page\": \"368\", \"citations\": \"11 Md. App. 360\", \"volume\": \"11\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:25:39.645338+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WHITING-TURNER CONTRACTING COMPANY, EMPLOYER, AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, INSURER v. EVERETT J. McLAUGHLIN, CLAIMANT\", \"head_matter\": \"WHITING-TURNER CONTRACTING COMPANY, EMPLOYER, AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, INSURER v. EVERETT J. McLAUGHLIN, CLAIMANT\\n[No. 282,\\nSeptember Term, 1970.]\\nDecided March 9, 1971.\\nThe cause was argued before Murphy, C.J., and Anderson and Morton, JJ.\\nHyman Ginsberg, with whom was A. Paul Kaye on the brief, for appellants.\\nThomas S. Santer, with whom were Martin E. Gerel and Leonard J. Ralston, Jr., on the brief, for appellee.\", \"word_count\": \"2546\", \"char_count\": \"15521\", \"text\": \"Murphy, C. J.,\\ndelivered the opinion of the Court.\\nThe question presented by this Workmen's Compensation appeal is whether the paralysis suffered by the appellee McLaughlin resulted from an \\\"accidental personal injury\\\" within the meaning of Maryland Code, Article 101, Section 15. The Workmen's Compensation Commission found that the injury was not accidental and, hence, was not compensable under the Act. On appeal, the Circuit Court for Montgomery County, sitting without a jury, found that the injury was accidental and reversed the decision of the Commission.\\nThe pertinent facts are these: On August 15, 1968, McLaughlin, a 49 year old labor foreman employed by appellant contracting company, was at work supervising a number of laborers pouring concrete into forms on a building construction project. McLaughlin had expected thirty-five yards of concrete to be at the job site when he reported for work that morning, but it had not been delivered when he arrived. Later that morning, the con crete began arriving but a shortage soon developed. McLaughlin discussed the shortage with his supervisor Larry McGinnis and with his superintendent Jack Thompson. Each assured him that more concrete would be delivered to the job, and McGinnis told him not to worry about it. McLaughlin was nevertheless concerned because he was behind schedule, feared rain, and wanted to avoid the cost that would be involved to his employer in pumping out the forms in the event it did rain. He also wanted to make a good impression on his employer. He did not eat lunch. The continuing shortage of concrete irritated him and his irritation \\\"was just building up\\\" as the day progressed. McLaughlin again pressed Mc-Ginnis, insisting that more concrete be delivered to the site.-The discussion between the two men became heated. McGinnis, who at the time was \\\"curved over\\\" an open hole, \\\"wheeled around\\\" with both his knees bent, and his hands clenched, and said to McLaughlin:\\n\\\" if you're running this job, this would be all right, but you're not running this f'ing job.\\\"\\nAt this point, McLaughlin lost his power to speak and his right side became paralyzed. He was hospitalized for three weeks, the medical evidence in the case showing that as a result of the \\\"extreme excitement\\\" generated by the verbal encounter with McGinnis, McLaughlin had suffered a vascular insufficiency of the left carotid artery. It was McLaughlin's testimony that his argument with McGinnis was an extreme one, but no threats were involved. There was evidence that McLaughlin had lost his power of speech for approximately fifteen minutes while on the job two weeks prior to August 15, 1968.\\nIn Schemmel v. Gatch & Sons, 164 Md. 671, 680-681, it was said: \\\"The word 'accident' in its ordinary and usual implications is associated with ideas of trauma, and involves to a degree at least elements of force, violence, and surprise. But in Workmen's Compensation law its meaning has been expanded to include any mischance re- suiting in physical injury to the bodily tissues produced by some unusual and extraordinary condition or happening in the employment. It has therefore been interpreted to include such untoward occurrences as the rupture of an aneurism, pulmonary and cerebral hemorrhages, hernia, infection, and heart dilation, arising out of some unusual or extraordinary condition in the employment, even where the injury was due in part to pre-existing disease or physical abnormality in the claimant. The word 'accident' or 'accidental' is usually considered in connection with the phrase 'arising out of,' and where it seems clear that the injury arose 'out of the employment' the tendency of the courts has been to give to the word 'accidental' a liberal construction in harmony with the general intent of the act, so as to find the injury compensable. As a result of that policy, such an injury as cerebral hemorrhage, when occasioned by some unusual and extraordinary condition in the employment, is by the great weight of authority held to be accidental in its nature.\\\" (Emphasis supplied.)\\nThe claimant in Schemmel suffered a cerebral hemorrhage while at his work in a quarry on a day so extraordinarily hot that the quarry was forced to shut down. He had that day been subjected to dynamite explosions in the quarry, which released gas causing headaches to those exposed to it. The claimant's stroke occurred shortly after he emerged from the quarry. There was evidence that while he had high blood pressure, it was the abnormal conditions under which he worked that day that precipitated his stroke. In finding that the cerebral hemorrhage was \\\"accidental\\\" under the Act, the court noted:\\n\\\" where one suffers from very high blood pressure or a diseased condition of the arteries, the occurrence of such an injury may reasonably be expected as natural and probable under any circumstances, and, when it does occur naturally and as an incident of the disease, while the stroke may be sudden, and the time of its occurrence unexpected, it can hardly be regarded as accidental. But, when it is accelerated by unusual or extraordinary conditions, or is caused by the effect of such conditions on a healthy person, it assumes the character of an accident, since but for such conditions it would not have occurred when it did.\\\" (Emphasis supplied.)\\nIn State Roads Commission v. Reynolds, 164 Md. 539, the 74 year old claimant, employed as a road patrolman, was taken from his regular light work and ordered to load heavy stones in a truck; The day was extremely hot and claimant had to work in the sun. He sustained a heat stroke, causing his death. The court held at page 546 that an accidental injury \\\"may mean any fortuitous, casual, and unexpected happening which causes personal disability or death which results from some unknown cause, or from the unexpected and unusual operation of a known cause.\\\" It concluded from the evidence that the injury would not have occurred \\\"but for the heat of the day and the character of the work in which [claimant] was engaged\\\"; that the working conditions, as applied to the claimant, who was doing other than his regular work, were unusual and extraordinary. In finding the injury to have been \\\"accidental,\\\" the court said: (page 547)\\n\\\" the test of the compensability of injury said to have arisen out of the employment is not whether the employee is weak or strong, but whether the disability was proximately caused by some unusual and extraordinary condition in his employment not usually and naturally incident thereto.\\\" (Emphasis supplied.)\\nIn Kelly-Springfield Co. v. Daniels, 199 Md. 156, the claimant felt a sharp pain in his back while, in performing his usual duties, he stooped to put a heavy bag on a hook. The court, in finding the back injury not \\\"accidental\\\" under the Act, said: (pp. 159 and 161)\\n\\\"It has been held by the great weight of authority that sudden and unexpected rupture of some portion of the internal structure of the body, as cerebral hemorrhage or apoplexy, or the failure of some essential function of the body, as heart failure or paralysis, brought about by the exertion of the employee while engaged in the performance of his duties, or by the conditions of the employment, even without any external happening of an accidental nature, is an accidental injury.\\n\\\"This broad rule, which has been adopted quite generally in the United States following the decisions in England, has not been fully accepted in Maryland. In this State the sudden and unexpected rupture of some portion of the internal structure of the body, or the failure of some essential function of the body, is held to be accidental injury only when it results from some unusual strain or exertion of the employee or some unusual condition in the employment.\\\" (Emphasis supplied.)\\nIn Stancliff v. H. B. Davis Co., 208 Md. 191, the court was urged to reconsider its minority view that an injury is accidental only if it results from some unusual strain, or exertion of the employee or some unusual condition of employment. Specifically, it was argued that the term \\\"accidental injury\\\" under the Act should be deemed to include unexpected results as well as accidental causes. The court reviewed its earlier decisions and though recognizing that they were against the weight of authority, declined to depart from them.\\nIn Reiger v. Washington Suburban Sanitary Commission, supra, the court reaffirmed its earlier holdings, stating that it would continue to reject the view that to be accidental \\\"nothing more is required than that the harm be unexpected.\\\"\\nIn Bethlehem Steel Co. v. Golombieski, 231 Md. 124, the court adhered to the rule that in Maryland the term \\\"accidental injury\\\" does not include unexpected results not produced by accidental causes and that in order for an injury to be accidental, and therefore compensable, it must result from some unusual exertion or strain or some unusual condition in the employment. Later cases remain in accord. See Fisher Body Division v. Alston, supra; Mize v. Beauchamp Associates, 245 Md. 583; Commercial Transfer v. Quasny, 245 Md. 572. It is thus clear that Maryland law requires an accident and not merely a result.\\nIn reversing the decision of the Commission',- and finding that appellee McLaughlin suffered an \\\"accidental injury\\\" under the statute, the court below relied upon Geipe, Inc. v. Collett, 172 Md. 165. That case involved a claimant-truck driver who, in the course of driving his employer's truck on the public road, was suddenly and unexpectedly confronted by a man who jumped from the vehicle immediately in front of him. In an effort to avoid hitting the man, the claimant swerved his truck sharply to avoid the collision. He nevertheless struck the man. During the course of the sudden encounter, the claimant became nervous and excited, his hand became limp, and he immediately thereafter suffered a complete paralysis. The evidence showed that while the claimant had high blood pressure and hardening of the arteries, his involvement in the accident precipitated the breaking of a blood vessel which caused a cerebral hemorrhage producing the paralysis. In finding that the paralysis was accidental, the court did not depart from the settled law of the State, as enunciated in Schemmel. On the contrary, the court in Geipe relied on Schemmel in its holding \\\"that an accidental personal injury takes place if the injury be a nervous shock that produces not a mere emotional impulse but a physiological injury as the proximate effect of an unforeseen or unexpected event, which occurs without design in the reasonable performance of the employee's duties.\\\" At page 171. It is apparent from the facts in Geipe \\u2014 and specifically so noted in Stancliff \\u2014 that the injury suffered by the claimant involved \\\"some unusual or extraordinary condition of the employment or in the doing of the work by the employee.\\\" At page 202.\\nIn finding McLaughlin's injury to be accidental, the court below also relied upon the 4-3 holding of the New York Court of Appeals in Klimas v. Trans-Caribbean Airways, Inc., 176 N.E.2d 714. There, the director of maintenance and engineering of the employer airline was placed under heavy work pressure and great mental and emotional stress in connection with the repair of an airplane. He was told, in effect, that he would lose his job if he failed to have the airplane repaired within a given time. He worked long beyond his normal hours in his efforts to repair the aircraft and incurred an enormous repair bill, which he feverishly attempted to have reduced. He became depressed and fearful for his job. As a result of his extreme anxiety, he suffered a myocardial infarction and died. The court found that the heart attack which caused the death was accidental under the New York Workmen's Compensation law. It said: (page 716)\\n\\\" We think it may not be gainsaid that undue anxiety, strain and mental stress from work are frequently more devastating than a mere physical injury, and the courts have taken cognizance of this fact in sustaining awards where no physical impact was present.\\\" (Citing cases.)\\nWe think the lower court's reliance on Klimas was misplaced. Factually, the case is far different from the present case. But more importantly, we think the only proper test to be applied in determining whether, under Maryland law, McLaughlin's injury was. accidental is, as it has always been, whether the injury resulted from some unusual strain or exertion of the employee or some unusual condition of the employment. Considering the evidence in light of this test, we do not think appellee's injury was \\\"accidental\\\" within the meaning of the Act. There was no extraordinary or unusual condition or happening in the operations of the employer; everything that was done or happened while appellee was working was naturally and ordinarily incident to the operation of the employer as it was customarily carried on. See Stancliff v. H. B. Davis Co., supra, at page 203. That a shortage of concrete should develop on a construction job is not unusual or extraordinary, nor was McLaughlin, by reason of such shortage, placed in contact with any unusual condition or eventuality beyond that ordinarily to be expected in his employment. See Heil v. Linck, 170 Md. 640. While it is readily understandable that for reasons heretofore set forth McLaughlin would become concerned over the concrete shortage, and press his supervisors for a solution to the problem, he was but engaging in the usual performance of his duties as a labor foreman. Under the circumstances, we do not think that the ensuing verbal encounter between McGinnis and McLaughlin, no matter how \\\"heated\\\" it may have been, could constitute, by itself, an unusual strain or exertion on McLaughlin's part, or such an extraordinary happening in the work not usually and naturally incident thereto, as would bring McLaughlin's resulting unexpected paralysis within the ambit of the term \\\"accidental personal injury,\\\" as defined by the Maryland cases. That McGinnis's tongue lashing of McLaughlin may have included some profanity and a sudden and unexpected bodily movement on McGinnis's part, cannot alter the conclusion that what is involved in this case is but an unexpected result not produced by an accidental cause; as such, it is not compensable.\\nWe therefore conclude that the lower court was in error in reversing the decision of the Workmen's Compensation Commission.\\nJudgment reversed; appellant to< pay costs.\\n. Under this Section, an employer is required to pay Workmen's Compensation benefits for \\\"an accidental personal injury sustained by the employee arising out of and in the course of his employment. \\\" That the injury arises out of and in the course of the workman's employment does not alone make it compensable; it must, in addition, be an accidental one. See Fisher Body Division v. Alston, 252 Md. 51; Rieger v. Washington Suburban Sanitary Commission, 211 Md. 214.\\n. The Maryland rule has been severely criticized. See 18 Md.L.R. 131.\"}"
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+"{\"id\": \"4384378\", \"name\": \"Alexander F. RUDEN, et al. v. CITIZENS BANK AND TRUST COMPANY OF MARYLAND\", \"name_abbreviation\": \"Ruden v. Citizens Bank & Trust Co.\", \"decision_date\": \"1994-04-01\", \"docket_number\": \"No. 967\", \"first_page\": \"605\", \"last_page\": \"640\", \"citations\": \"99 Md. App. 605\", \"volume\": \"99\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:50:04.828160+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Alexander F. RUDEN, et al. v. CITIZENS BANK AND TRUST COMPANY OF MARYLAND.\", \"head_matter\": \"638 A.2d 1225\\nAlexander F. RUDEN, et al. v. CITIZENS BANK AND TRUST COMPANY OF MARYLAND.\\nNo. 967,\\nSept. Term, 1993.\\nCourt of Special Appeals of Maryland.\\nApril 1, 1994.\\nL. Dale Burgmeier (Burgmeier and Downer, on the brief), Annapolis, for appellants.\\nC. Edward Hartman, III (Hartman and Parrott, on the brief), Annapolis, for appellee.\\nArgued before MOYLAN, ALPERT and HARRELL, JJ.\", \"word_count\": \"11246\", \"char_count\": \"66898\", \"text\": \"MOYLAN, Judge.\\nThe primary question confronting us on this appeal was succinctly posed by Note, Creditor's Deficiency Judgment under Article 9 of the Uniform Commercial Code: Effect of Lack of Notice and a Commercially Reasonable Sale, 33 Md.L.Rev. 327 (1973):\\nUpon default by a debtor in a security agreement, a secured creditor may, pursuant to Part 5 of Article 9 of the Uniform Commercial Code, repossess and dispose of the collateral in order to minimize the existing indebtedness. A problem, however, exists because, while the Code requires the secured creditor to notify the debtor of the disposition and to conduct the disposition in a commercially reasonable manner, it fails to chart explicitly the consequences that befall the secured creditor should he not do so. (footnotes omitted) (emphasis supplied).\\nBefore addressing \\\"that question, let us set it in context.\\nCitizens Bank and Trust Company of Maryland, appellee, filed a Complaint in the Circuit Court for Anne Arundel County against Alexander F. Ruden and Ann V. Ruden, appellants. The complaint alleged that the Rudens defaulted on their Consumer Loan Note and Security Agreement by failing to make monthly payments as promised and that they were liable for the deficiency remaining after the collateral was sold. The Rudens' answer and counterclaim alleged, in part, that the appellee's sale of the collateral was commercially unreasonable. The case was tried before a jury, presided over by Judge Martin A. Wolff. The jury rendered a verdict in favor of the appellee in the amount of $75,753.00.\\nOn this appeal, the Rudens raise the following four issues:\\nI. Did the circuit court err in failing to instruct the jury that the appellee was barred from recovering a deficiency judgment if the boat was not sold in a commercially reasonable manner?\\nII. Did the circuit court err in failing to instruct the jury that the appellee was not entitled to a deficiency judgment if it purchased the boat at a private sale?\\nIII. Did the circuit court err in failing to instruct the jury that the appellee was not entitled to a deficiency judgment if it sold the boat at a private sale?\\nIV. Did the circuit court abuse its discretion in failing to admit an appraisal of the boat as evidence of its value?\\nWe find no error or abuse of discretion on the part of the circuit court, and, thus, we affirm.\\nFacts\\nThe Rudens purchased a 35-foot Cheoy Lee sailboat in 1980 for $85,000. They financed $67,000 of the purchase price with People's Security Bank. In 1982, they leased the boat to James Morris. Morris kept the boat in a marina located on Hilton Head Island, South Carolina.\\nIn 1984, the Rudens refinanced the boat with Citizens Bank and Trust Company of Maryland (Bank). The Rudens executed a Consumer Loan Note and Security Agreement in which they promised to pay to the order of the Bank the principal sum of $58,883.50 plus interest by making monthly payments. Morris was still leasing the boat from the Rudens at that time.\\nIn February, 1985, Morris was two months behind in his payments. Additionally, the Rudens discovered that the boat was no longer located on Hilton Head Island, South Carolina. They became concerned. Subsequently, the boat was found in Miami, Florida. Morris's lease was terminated and the boat was seized by the U.S. Marshal in connection with a civil maritime action instituted by the Rudens in the United States District Court for the Southern District of Florida. Allied Marina, a marina located in Miami, Florida, acted as the substitute custodian for the boat.\\nThe Rudens continued to make monthly payments to the Bank until August, 1986, when they could no longer do so. By a certified letter dated October 10, 1986, the Rudens were notified by the Bank that, because they had failed to make the required monthly payments, the boat would be repossessed on or after October 20, 1986 unless all defaults were cured by that date. In November, 1986, the Bank had the boat appraised, and it was valued at $45,000 by an appraiser.\\nSubsequently, the Rudens were informed by letter that the boat was repossessed on December 9, 1986 and that it contin ued to be stored at Allied Marina in Miami, Florida. The letter explained that they may redeem and retake possession of the boat during a 15-day period prior to its sale at public auction. At that time, however, the boat, apparently unbeknown by the Bank, was still in federal custody.\\nThe Rudens were notified of the time, date, and loc\\u00e1tion of the public sale and received copies of advertisements placed in The Washington Post and The Miami Herald. A public sale was held on January 27,1987. The bidding opened at $35,000, but no bids were made. The Bank \\\"bought\\\" the boat for $35,000, but the sale was never consummated. Because the boat had been in federal custody when the Bank attempted to sell it at a public auction, the repossession and subsequent public sale were invalid.\\nAfter learning that the boat had been and was no longer in federal custody, the Bank officially notified the Rudens that the boat was being repossessed and that it intended to dispose of the boat. On March 16,1987, the Rudens were informed by letter that the boat was being sold at private sale on or after April 1, 1987. The boat was sold to a third party for $12,-500.00 and the sale was consummated on July 8, 1987. By a letter dated July 16, 1987, the Bank notified the Rudens that their boat was sold on July 8, 1987 and that they were responsible for the deficiency balance. The sale price, however, was stated as being $35,000.\\nThe Bank filed its Complaint in November, 1987 in the Circuit Court for Anne Arundel County. The case was tried before a jury on September 1, 2, and 3, 1992. The Bank requested that judgment in its favor be entered in the amount of $100,888.01, which included the deficiency, interest, and attorney's fees. The jury returned a verdict in favor of the Bank in the amount of $75,753.00. This appeal resulted.\\nCreditor's Entitlement to a Deficiency Judgment\\nA. Compliance With \\u00a7 9-504(3): Deficiency Award Automatic\\nWhen the sale is conducted with full compliance with the requirements of \\u00a7 9-504(3), the sale price will be considered to be the true value of the collateral and any deficiency will be awarded automatically to the creditor. Md.Code Ann., Com. Law \\u00a7 9-504 (1992). In terms of compliance with \\u00a7 9-504(3), there was no issue in this case with respect to the giving of adequate notice. The issue in dispute was the commercial reasonableness of the sale. The circuit court instructed the jury, with regard to commercial reasonableness:\\nIn determining whether the sale was held in a commercially reasonable manner, for the purposes of a deficiency judgment, the burden of proof is on the Plaintiff, on the bank, who has brought suit. The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not, of itself, sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market or if he sells at the price current in such market at the time of the sale, or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold, he has sold in a commercially reasonable manner.\\nIf you find the sale was held in a commercially reasonable manner and you have found that there is reasonable notification given to the Defendant, then you must return a verdict in favor of the Plaintiff against the Defendant.\\nThus far, the judge's instruction was absolutely correct.\\nB. Noncompliance: What Is the Sanction?\\nAt that point, the trial judge went on to instruct the jury as to what it should have done in case it found the sale to have been commercially unreasonable. As to any damages that might have resulted from the failure of the Bank to conduct the sale of the boat in a commercially reasonable manner, the judge advised:\\nIf you find that the sale was not held in a commercially reasonable manner, your job is not finished because you must determine to what extent the Defendant has been damaged by the failure to hold the sale in a commercially reasonable manner.\\nTo determine the effect of a sale which was not held in a commercially reasonable manner, you must determine from the evidence presented what sale price would have resulted from a commercially reasonable sale.... If the price which would have been obtained at a commercially reasonable sale is higher than that which was actually obtained, you must subtract the difference from the Plaintiffs demand and return a verdict in favor of the Plaintiff in the reduced amount, (emphasis added).\\nInitially, a word is in order as to why the Rudens' contention with respect to this second jury instruction is not moot. No special issues were submitted to the jury for resolution and it is impossible to deduce just how it arrived at its verdict for the Bank in the amount of $75,753. Arithmetically, there is no way to manipulate the figures to come up with that sum (or remainder or product or quotient, as the case may have been). Recognizing that the final verdict may have been the result of compromise, compounded perhaps by a few arithmetic miscalculations, we can only base our possible deductions on rough and rounded figures.\\nOne possibility, of course, is that the jury found as a fact that the Bank's sale of the boat was commercially reasonable but also concluded, by way of some compromise or some generous impulse toward the Rudens, not to \\\"stick\\\" the Ru-dens with the Bank's attorney's fees. If the jury, indeed, found that the sale was commercially reasonable, then the present contention about appropriate sanctions for a commercially unreasonable sale is mooted.\\nThat enigmatic jury verdict, however, is also vulnerable to another interpretation. The verdict may just as plausibly have been that the sale was commercially unreasonable and that the Bank was not, therefore, entitled to the full difference between the actual sale price of $12,500 and the total debt of $100,888 (a deficiency of just over $88,000) but was only entitled to the difference between the fair market value of the boat and the total debt. In terms of what that possibly larger subtrahend (fair market value) might be, the Bank, of course, was arguing that the fair market value was, indeed, the actual sale price of $12,500. and no more. There was evidence, on the other hand, more favorable to the Rudens, of an appraisal and a fair market value in the neighborhood of $35,000. There is always the possibility that the jury essentially split the difference between the lesser figure and the greater figure and found a fair market value of approximately $25,000. That would explain how a debt of just over $100,000 minus a fair market value of $25,000 would have yielded a deficiency verdict of just over $75,000. It is because this latter possibility is very real and plausible as an explanation for what the jury did that the instruction on the subject of sanctions may have been critical to the outcome of this case and is, therefore, properly before us.\\nThe Rudens contend that the circuit court's instruction as to damages that may result from the Bank's failure to conduct the sale in a commercially reasonable manner was in error. They argue that failure to meet the requirement of a commercially reasonable sale under \\u00a7 9-504(3) totally bars the recovery of a deficiency judgment in any amount and, therefore, the circuit court's instruction was in error. We disagree.\\nSection 9-504(3) states that:\\nDisposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this State or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely .distributed standard price quotations he may buy at private sale, (emphasis supplied).\\nIt is clear that \\u00a7 9-504(3) requires both 1) that the sale of the collateral be conducted in a commercially reasonable manner and 2) that reasonable notice be given to the debtor. Section 9-504 does not, however, explicitly address the consequences of a secured party's failure to meet either of those requirements.\\nC. Sanction # 1: Deficiency Judgment Absolutely Barred\\nCourts across the country have approached the problem in essentially three different ways. Some jurisdictions absolutely bar a secured party's recovery of any deficiency judgment for failure to comply with the requirements of \\u00a7 9-504. They do so regardless of whether the noncompliance was the failure to give notice or the failure to conduct the sale in a commercially reasonable manner. The rationale invigorating that position was well articulated by Leasco Data Processing Equip. Corp. v. Atlas Shirt Co., 66 Misc.2d 1089, 323 N.Y.S.2d 13, 16 (N.Y.City Civ.Ct.1971):\\nIt surely has meaning that the very section [9-504] that affirms the right to a deficiency judgment after sale of a repossessed article also describes in simple and practical terms the rules governing dispositions as well as the pertinent notice requirements. If a secured creditor's right to a deficiency judgment were intended to be independent of compliance with those rules, one would surely expect that unusual concept to be delineated with clarity. The natural inference that the right depends upon compliance is force fully underlined by the joining of the two provisions in one section.\\nSee also Atlas Thrift Co. v. Horan, 27 Cal.App.3d 999, 104 Cal.Rptr. 315, 321 (1972).\\nD. Sanction # 2: Burden on Debtor to Qualify for Set-Off\\nA second approach traditionally allowed the secured creditor to recover a deficiency judgment notwithstanding noncompliance with \\u00a7 9-504(3), subject only to a reduction or set-off for damages suffered by the debtor. That approach has been described by 2 James J. White & Robert S. Summers, Uniform Commercial Code, \\u00a7 27-19, at 630-631 (3d ed. 1988):\\n[Another] line of cases allows the secured creditor to recover the deficiency subject only to reduction for any damages suffered by the debtor. For example, in Abbott Motors, Inc. v. Ralston, [28 Mass.App.Dec. 35, 5 UCC 788 (1964) ], the court said that violation of the provisions of Part Five did not excuse the debtor from paying a deficiency, but that he was entitled to a set-off for any loss suffered as a result of it. (Presumably, the damages would be the difference between the fair market value of the collateral established by the debtor and the actual resale price.) In a later Pennsylvania case, Mercantile Financial Corp. v. Miller, [292 F.Supp. 797 (E.D.Pa.1968) ], another federal district court in that state (ignoring the Skeels [v. Universal C.I.T. Credit Corp., 222 F.Supp. 696 (D.C.Pa.1963) ] case) determined that, because the secured party made a commercially unreasonable sale, the debtor was entitled to have a default judgment reopened. But the court did not deny recovery of the deficiency. It said that the sole purpose for reopening the judgment was to establish the fair market value of the collateral. The Court further stated that the burden of proving the fair market value fell upon the debtor:\\nMoreover, in order to have the judgment altered in his favor, Miller [debtor] still must establish by a preponderance of the evidence what the fair market value of these assets was on the date of sale. By granting Miller's motion we do not suggest that he in fact is entitled to any greater credit arising from the disposition of this collateral than he had already received. [292 F.Supp. at 801]\\nUnder that second approach, the creditor did not automatically suffer any sanction at all for his noncompliance. The full burden was placed on the debtor to establish the fair market value of the collateral. Only when he had done so was he then entitled to a set-off for the difference between the sale price actually realized and the fair market value , of the collateral, to wit, the price it should have brought if it had been sold in a commercially reasonable way. That difference would be used, as a set-off, to reduce the amount of the deficiency.\\nIn fashioning an appropriate sanction, courts were initially faced with that starkly bipolar choice between two extremes. On the one hand, noncompliance would absolutely bar a creditor from any deficiency judgment, no matter how relatively minor the impact of the noncompliance and no matter how unduly harsh the total bar to a deficiency might be. On the other hand, the only apparent alternative inflicted virtually no penalty whatever on the creditor for noncompliance but, rather, allocated to the debtor the burden of establishing the prejudice that he may have suffered from such noncompliance. 2 James J. White & Robert S. Summers, Uniform Commercial Code, \\u00a7 27-19, at 631 (3d ed. 1988) described this dichotomy:\\nOn one end of the scale, Skeels in Pennsylvania and now [First State Bank of Morrilton v.] Hallett [291 Ark. 37, 722 S.W.2d 555 (1987) ] in Arkansas stand clearly and unequivocally for the proposition that a creditor who violates the provisions of Part Five of Article Nine loses his right to a deficiency. At the other extreme, some states expressly allow the creditor a deficiency judgment, subject to set-off for whatever loss the debtor can prove as a result of the improper sale.\\nIn rejecting both extremes, the Supreme Court of Appeals of West Virginia, in Bank of Chapmanville v. Workman, 185 W.Va. 161, 406 S.E.2d 58 (1991), focused its critical gaze initially on the \\\"absolute bar\\\" approach, observing, 406 S.E.2d at 64:\\nUnder the \\\"absolute bar\\\" rule, any secured creditor who is found to have disposed of the collateral in a commercially unreasonable manner is absolutely barred from seeking a deficiency judgment. There are several problems with this rule. First, it is a judge-made punitive provision....\\nSecond, there is absolutely no support in the wording of the UCC for the \\\"absolute bar\\\" rule. Third, the \\\"absolute bar\\\" rule involves a forfeiture, and the law generally disfavors forfeitures. Fourth, the amount of the penalty bears no relation to the degree of commercial unreasonableness of the secured creditor's conduct, but depends solely upon the amount of the deficiency. That is, a creditor who is owed a deficiency of one million dollars can be penalized more for slightly commercially unreasonable conduct than a thoroughly abusive creditor who is left with a deficiency of one hundred dollars, (emphasis in original).\\nIt then turned its analytic scrutiny on the opposite extreme, the \\\"set-off' rule, observing, 406 S.E.2d at 64-65:\\nAt the other extreme, under the \\\"set-off' rule, the creditor collects a deficiency judgment, subject only to whatever statutory damages are awarded to the debtor on a counterclaim under UCC 9-507(1) . The main problem with this rule is that the debtor has the burden of proving his losses under UCC 9-507, and will usually have a hard time proving that the fair market value was higher than what the collateral actually sold for at the repossession sale. In many cases, the secured creditor's commercially unreasonable behavior (e.g., lack of adequate notice to the debtor) will have greatly hindered the debtor's ability to prove his damages, (citation omitted).\\nE. Sanction #3: The Middle Position\\nMore recently, a middle position has emerged which has softened the harsh bipolarity of the earlier choice. In Bank of Chapmanville v. Workman, it is not surprising that West Virginia, after roundly criticizing the two extremes, as noted above, opted for the third, newer, and middle position:\\nCourts around the country have chosen from among the following three rules: (1) the \\\"absolute bar\\\" rule; (2) the \\\"set-off' rule; and (3) the \\\"rebuttable presumption\\\" rule. The \\\"rebuttable presumption\\\" rule appears to have become the majority rule, and is the soundest of the three, (footnote omitted).\\n406 S.E.2d at 64.\\nThis tripartite breakdown of the possible results that might follow a creditor's noncompliance with the requirements of \\u00a7 9-504(3) has also been well summarized by Robert S. Minetz, May a \\\"Wrongdoer\\\" Recover a Deficiency Judgment, or Is Section 9-507(1) a Debtor's Exclusive Remedy?, 6 UCC L.J. 344, 345-346 (1974):\\nThe cases which have considered whether a secured party who has failed to comply with the UCC repossession and resale provisions has forfeited his right to deficiency judgment have taken three routes. One line of cases has held that the wrongdoing by the secured party precludes his right to a deficiency. Another group of courts has simply referred to the damaged debtor to 9-507(1) for a remedy. The third line of authorities has allowed the action for the deficiency but has imposed a presumption that the actual value of the collateral at the time of the wrongful sale is equal to the balance due to the secured party. Thus, no deficiency is owned to the creditor unless the presumption is rebutted. The three groups of cases will be considered in turn.\\nAfter twenty years of adherence to the \\\"absolute bar\\\" position, the Supreme Court of Georgia, in Emmons v. Burkett, 256 Ga. 855, 353 S.E.2d 908 (1987), abandoned the \\\"absolute bar\\\" rule in favor of what has come to be called the \\\"rebuttable presumption\\\" rule. As 2 James J. White & Robert S. Summers, Uniform Commercial Code \\u00a7 27-19, at 627 (3d ed. 1988) has explained, \\\"According to this rale, the creditor who fails to give notice or conducts a commercially unreasonable sale can still recover a deficiency if he rebuts the presumption that the value of the collateral was equal to the debt.\\\" Emmons v. Burkett, 353 S.E.2d at 911, held that:\\n. the rebuttable-presumption rale, by placing the burden on the creditor to show the propriety of the sale and making him liable under [9-507] for any injury to the debtor, provides an adequate deterrent to an improper sale on the part of a creditor, and adequately protects the debtor's interest, without arbitrarily penalizing the creditor.\\nThe decided trend, nationwide, is toward the \\\"rebuttable presumption\\\" rule as state after state has rallied under that banner. In Kobuk Eng. v. Superior Tank & Constr. Co., 568 P.2d 1007 (Alaska 1977), the Supreme Court of Alaska held that the sale of a collateral by a creditor in that case \\\"was not commercially reasonable.\\\" 568 P.2d at 1013. Turning then to the question of what consequences should flow from that commercially unreasonable sale, Alaska rejected the \\\"absolute bar\\\" approach as \\\"repugnant to the spirit of the UCC.\\\" Id. It opted, instead, for the \\\"rebuttable presumption\\\" rale:\\nWe hold that the commercially unreasonable sale made by Superior acts to decrease the amount of the deficiency judgment which Superior is entitled to recover from Kobuk. The fair and reasonable value of the collateral at the time of repossession should be offset against the balance due on the security agreement. Where the collateral has been sold in a sale that does not comply with the provisions of the UCC, there is a rebuttable presumption that the fair and reasonable value of the collateral is at least equal to the amount of the outstanding debt. In order to overcome that presumption, the secured party has the burden of either (1) obtaining a fair and reasonable appraisal at or near the time of repossession, or (2) producing convincing evidence of the value of the collateral. In order to meet the latter burden, the secured creditor is required to bring forward proof of the condition of the collateral and the usual price of items of like condition, (footnotes omitted).\\n568 P.2d at 1013-1014.\\nA similar policy choice was faced by the Supreme Court of New Mexico in Clark Leasing Corp. v. White Sands Forest Prod., 87 N.M. 451, 535 P.2d 1077 (1975). The court there acknowledged that the case before it \\\"squarely raises, for the first time in New Mexico, the question whether or not a secured creditor is absolutely precluded from recovering a deficiency judgment under the UCC if he fails to dispose of repossessed collateral as required under \\u00a7 9-504(3).\\\" 87 N.M. at 455, 535 P.2d at 1081. In rejecting the \\\"absolute bar\\\" approach and opting, instead, for the \\\"rebuttable presumption\\\" rule, the New Mexico Supreme Court held, 87 N.M. at 455-456, 535 P.2d at 1081-1082:\\nWe consider this rule [the \\\"absolute bar\\\" rule] repugnant to the spirit of the UCC. The complete denial of a deficiency smacks of the punitive and is directly contrary to Article Nine's underlying theme of commercial reasonableness. \\\"If the secured party has reimbursed the debtor for any losses incurred by improper sale, he has approximated the commercially reasonable sale. Thus, he should be allowed to receive the money which would have been due if the sale had been commercially reasonable.\\\" Minetz, \\\"May a Wrongdoer' Recover a Deficiency Judgment, or is Section 9-507(1) a Debtors Exclusive Remedy?\\\", 6 UCC L.J. 344 at 363 (1974).\\nWe agree with those courts that hold a secured party's failure to comply with \\u00a7 9-504(3) does not result in a forfeiture of the right to a deficiency.\\nIt further stated its belief that \\\"simple considerations of fair play mandate the adoption of this rule for New Mexico.\\\" 87 N.M. at 456, 535 P.2d at 1082. See Carter v. Ryburn Ford Sales, Inc., 248 Ark. 236, 451 S.W.2d 199 (1970); Assoc. Fin. Serv. Co. v. DiMarco, 383 A.2d 296 (Del.Super.Ct.1978); Bank of Oklahoma, N.A. v. Little Judy Indus., 387 So.2d 1002 (Fla.Dist.Ct.App.1980); Mack Fin. Corp. v. Scott, 100 Idaho 889, 606 P.2d 993 (1980); Wirth v. Heavey, 508 S.W.2d 263 (Mo.Ct.App.1974); Levers v. Rio King Land & Inv. Co., 93 Nev. 95, 560 P.2d 917 (1977); Franklin State Bank v. Parker, 136 N.J.Super. 476, 346 A.2d 632 (Union County Ct.1975); Security Trust Co. of Rochester v. Thomas, 59 A.D.2d 242, 399 N.Y.S.2d 511 (1977); Hodges v. Norton, 29 N.C.App. 193, 223 S.E.2d 848 (1976); State Bank of Towner v. Hansen, 302 N.W.2d 760 (N.D.1981); Assoc. Capital Serv. Corp. v. Riccardi, 122 R.I. 434, 408 A.2d 930 (1979); Investors Acceptance Co. of Livingston v. James Talcott, Inc., 61 Tenn.App. 307, 454 S.W.2d 130 (1969); Aetna Fin. Co. v. Ables, 559 S.W.2d 139 (Tex.Civ.App.1977). See also Richard C. Tinney, Annotation, Failure of Secured Party to Make \\\"Commercially Reasonable\\\" Disposition of Collateral Under UCC \\u00a7 9-504(3) as Bar to Deficiency, 10 A.L.R. 4th 413, 422-430 (1981).\\nThe operation of the \\\"rebuttable presumption\\\" rule was well explained in Note, Creditors Deficiency Judgment under Article 9 of the Uniform Commercial Code: Effect of Lack of Notice and A Commercially Reasonable Sale, 33 Md.L.Rev. 327, 342-343 (1973):\\n[I]f the creditor has failed either to give notice or to conduct a commercially reasonable sale, he should have the burden of proof to show that he did not prejudice the debtor's rights and that the sale resulted in a fair and reasonable price for the collateral, because the proof incident to notice and resale are peculiarly within the creditor's knowledge. If the secured creditor cannot prove that the sale reflected the fair and reasonable value of the collateral, most courts will presume that the value of the collateral sold without notice and without a commercially reasonable resale is equal to the amount of the debt. Often though, the secured creditor will be able to rebut this presumption and prove a reasonable value that will accord him a deficiency, (footnotes omitted).\\nWest Virginia has similarly explained the manner in which the middle approach operates:\\nFor the victim of a commercially unreasonable disposition of collateral, the \\\"rebuttable presumption\\\" rule comes to the rescue. Under this rule, the fair market value of the collateral is rebuttably presumed to equal the amount of the remaining debt. To recover a deficiency, the secured creditor who is found to have disposed improperly of the debtor's collateral must prove that the debt exceeded the fair market value of the collateral.\\nBank of Chapmanville v. Workman, 406 S.E.2d at 65.\\nThe New Mexico Supreme Court handles the \\\"rebuttable presumption\\\" rule in precisely the same way:\\nUnder these decisions, where the value of the collateral is at issue, there is a presumption that the value of the repossessed collateral at resale is equal to the value of the outstanding debt. Where the sale is conducted in accordance with \\u00a7 9-504(3) the sum received at sale is evidence of the market value. But if the sale is not conducted according to the Code, the amount received is not evidence of the market value of the collateral. The secured party has the burden of proving the market value by other evidence, (citations omitted).\\nClark Leasing Corp. v. White Sands Forest Prod., 87 N.M. at 456, 535 P.2d at 1082.\\nF. The Maryland Case Law: Failure of Notice\\nBefore we may proceed to make a policy choice, of course, we must determine what freedom of movement is permitted us by stare decisis. On two occasions, the Court of Appeals has squarely held that the failure of a creditor to comply \\\"with the provisions of \\u00a7 9-504(3) will operate as an absolute bar to the creditor's recovery of a deficiency judgment. First Nat'l Bank v. DiDomenico, 302 Md. 290, 487 A.2d 646 (1985); Maryland Nat'l Bank v. Wathen, 288 Md. 119, 414 A.2d 1261 (1980).\\nAt first glance, that appears to be dispositive. On closer examination, however, the two Maryland decisions involve a creditor's failure to notify the debtor of the impending sale of the collateral after default and repossession. The rationale for both of the holdings, moreover, is based primarily on the preclusion of the debtor's right of redemption under \\u00a7 9-506.\\nAs the analysis of this provision of the Uniform Commercial Code has become more sophisticated, however, there is a growing awareness of the qualitative difference between 1) the failure to give the debtor any notice of the sale and 2) other instances of operating in a commercially unreasonable fashion. Illustrative of this emerging sophistication is the decision of the Supreme Court of Kentucky of Holt v. Peoples Bank of Mt. Washington, 814 S.W.2d 568 (Ky.1991). Even more so than in Maryland, a significant body of Kentucky precedent had indicated that failure of compliance with the verbatim Kentucky counterpart of \\u00a7 9-504(3) would result in an absolute bar to a deficiency judgment. In the Holt case, however, the Supreme Court of Kentucky noted, as we note here, that all of the earlier failures of compliance had been of the failure-to-give-notice variety. It then recognized, as do we, the distinction:\\nAt the outset, a distinction should be made between the failure to give presale notice of the intended disposition of collateral and other acts of commercially unreasonable behavior. Notice to the debtor that the collateral is about to be disposed of is so fundamental that no remedy less severe than forfeiture of the deficiency amount would be adequate and this remedy is by no means exclusive. In a proper case, criminal and tort liability may be imposed....\\n814 S.W.2d at 570.\\nThe Kentucky Supreme Court explained why the failure of a creditor to give notice to the debtor logically incurred the heavy sanction of foreclosing any deficiency judgment:\\nA secured party who fails to give the notice . denies the debtor an opportunity to assert defenses, contest the amount claimed or pay the indebtedness prior to sale of the collateral. The greatest protection available to debtors from unscrupulous conduct by secured parties who have repossessed collateral is notice of disposition of the collateral. When notice is omitted, the principle of estoppel heretofore recognized by the courts of this Commonwealth prevents recovery of any deficiency judgment. Skeels v. Universal C.I.T. Credit Corporation, 222 F.Supp. 696 (W.D.Pa. 1963).\\n814 S.W.2d at 571. In its analysis of the gravity of the failure to give notice, Kentucky relied upon the same landmark case of Skeels v. Universal C.I.T. Credit Corp., 222 F.Supp. 696 (W.D.Pa.1968), that the two Maryland decisions also relied heavily upon.\\nEven a quick perusal of Maryland Nat'l Bank v. Wathen, 288 Md. 119, 414 A.2d 1261 (1980), reveals unmistakably that its exclusive concentration was on the failure to give notice specifically and not on noncompliance with \\u00a7 9-504(3) generally. At the very outset of the opinion, Judge Cole stated the issue:\\nIn this case we are asked to decide whether a secured party, who, after default by the debtors, repossesses the collateral and conducts the sale thereof, is barred from suing for a deficiency because he failed to notify the debtor of the sale, (emphasis supplied).\\n288 Md. at 120, 414 A.2d 1261. Within a page, the Court of Appeals stated the appellant's contention, \\\"The Bank, while conceding that John was a debtor entitled to notice, contends that its failure to notify John was an oversight.\\\" (emphasis supplied). Id. at 121, 414 A.2d 1261. In surveying the law around the country, the Court focused again on the failure to give notice: \\\"For courts which impose an absolute bar when notice is not sent, see Skeels v. Universal C.I.T. Credit Corp., 222 F.Supp. 696 (W.D.Pa.1963), modified on other grounds 335 F.2d 846 (3d Civ.1964).\\\" (emphasis supplied). Maryland Nat'l Bank v. Wathen, 288 Md. at 121 n. 1, 414 A.2d 1261. The Court of Appeals further noted that the mere fact that the sale is commercially reasonable in other regards does not adequately atone for the failure to give notice:\\nWe conclude then that \\u00a7 9-504(3) requires reasonable notification of the time and place of any proposed sale and further that the requirement that the sale be commercially reasonable does not afford the debtor sufficient assurance that full value will be given for the collateral, (emphasis supplied).\\n288 Md. at 122, 414 A.2d 1261. The heart of the analysis by the Court of Appeals went to the extreme prejudice to the rights of a debtor incurred by his failure to receive notice. The analysis paralleled precisely that of Skeels v. Universal C.I.T. Credit Corp. and of the Kentucky Supreme Court in Holt. The Court of Appeals reasoned, 288 Md. at 122-123, 414 A.2d 1261:\\nOur conclusion is undergirded by the interrelation of the provisions of the code which were apparently drafted so that the debtor is afforded a reasonable opportunity to protect his interests. Section 9-506 of the U.C.C. expressly bestows upon the debtor the opportunity to redeem the collateral by tendering payment of the balance due. It is manifest that the debtor without notice of the sale can be effectively prevented from exercising his right to redemption. Furthermore even if the debtor is not in a position to redeem, if he has notice, he ma,y still be able to refinance and must therefore be capable of arranging for potential creditors to inspect the collateral. Alternatively, a debtor with notice may be able to procure interested buyers to drive up the level of competitive bidding. At the very least, notice provides the opportunity to attend the sale to insure that it is commercially reasonable. To permit recovery of a deficiency judgment absent notice would effectively nullify these important debtor's rights and permit \\\"a continuation of the evil which the Commercial Code sought to correct. . It was the secret disposition of collateral by chattel mortgage owners and others which . the Code sought to correct.\\\" Skeels v. Universal C.I.T. Credit Corp., 222 F.Supp. 696 (W.D.Pa.1963), modified on other grounds, 335 F.2d 846 (3d Cir.1964). We see no need to undermine the protection which these provisions were intended to afford, (emphasis supplied).\\nThe Court, in Wathen, went on to weigh the heavy prejudice to a debtor denied notice against the ease with which the creditor may satisfy the notice requirement:\\nOur conclusion is reinforced by the juxtaposition of the interests of the debtor with the ease with which the secured party may comply with the notice requirements. Section 9-504(3) requires only reasonable notification; there is not even the requirement that such notification be in writing particularly where the debtor has. actual knowledge of the proposed sale. All the creditor need do to protect his own interests is obey the uncomplicated mandate of the law\\u2014 send reasonable notice, (citation omitted) (emphasis supplied).\\n288 Md. at 123-124, 414 A.2d 1261. The final holding of the Court unmistakably concerned itself with the sanction that would necessarily follow from a failure to give notice:\\nWhile we have not before addressed the requirement of notice in a factual context similar to this case, we have in our prior decisions regarding the required notice in other types of sales indicated an abiding concern for its strict observance. We now underscore our concern by holding that compliance with the notice provision of \\u00a7 9-504(3) is a condition precedent to recovery of a deficiency judgment, (citations omitted) (emphasis supplied).\\n288 Md. at 126, 414 A.2d 1261.\\nThe focus in First Nat'l Bank of Maryland v. DiDomenico, 302 Md. 290, 487 A.2d 646 (1985), was as exclusively on the single subject of notice as had been the focus in Wathen. At the very outset of the opinion, the Court signaled what the decision would be: \\\"We shall hold that the notice was not a reasonable one. \\\" (emphasis supplied). As it began its analysis, the Court pointed out that \\u00a7 9-504(3) \\\"governs with respect to notice from the creditor to the debtor.\\\" (emphasis supplied) 302 Md. at 294, 487 A.2d 646. It then went on to quote, in pertinent part, that portion of \\u00a7 9-504(3) dealing with the notice requirement but deleting any reference to any other requirement. In the course of its analysis, the Court summarized its holding in Wathen:\\nIn Maryland Nat'l Bank v. Wathen, 288 Md. 119, 414 A.2d 1261 (1980), this Court addressed the effect of noncompliance with the notice requirements of \\u00a7 9-50b(3) on a deficiency judgment. There the secured creditor had total ly failed to give notice of a sale of the collateral to one of several debtors. Wathen held that a deficiency judgment was barred as to that debtor and described reasonable notice as a condition, to a deficiency judgment, (emphasis supplied).\\n302 Md. at 296, 487 A.2d 646. DiDomenico further characterized Wathen as holding that a failure to give notice would ipso facto bar any deficiency judgment, notwithstanding the fact that the sale was nonetheless commercially reasonable:\\nThe Wathen holding is that the giving of reasonable notification is a condition precedent to a deficiency judgment. Wathen assumed that the public auction of the collateral there involved had been commercially reasonable and its holding did not depend on causally connecting loss to the lack of notice, (emphasis supplied).\\n302 Md. at 297, 487 A.2d 646.\\nWathen and DiDomenico establish unmistakably that in Maryland the failure of a creditor to comply with the notice requirement of \\u00a7 9-504(3) will operate as an absolute bar to the obtaining of any deficiency judgment against the debtor. Beyond that, however, the field is yet unplowed. In neither Wathen nor DiDomenico did the Court of Appeals give any thought (it was not called upon to give any thought) to the appropriate sanction in the case of a creditor's noncompliance with any provision of \\u00a7 9-504(3) other than the notice requirement.\\nG. The Maryland Law: Commercial Unreasonableness\\nThat rationale of Wathen and DiDomenico, whatever its force in the no-notice context, does not necessarily support totally barring the . recovery of a deficiency judgment in the different context of a secured party's failure to conduct the sale of the debtor's collateral in a commercially reasonable manner. As result of a secured party's conduct in that regard, the debtor may still, of course, be damaged. That damage, however, can be quantified in monetary terms. Equity does not logically require, therefore, that the debtor be completely relieved of total responsibility for any deficiency, as he would be in the case of non-notice. Thus, we reject the Rudens' argument that a secured party should be totally barred from recovering any deficiency judgment if its conduct as to the sale of the collateral is found to be commercially unreasonable.\\nOnce again, the Supreme Court of Kentucky in Holt v. Peoples Bank of Mt. Washington, 814 S.W.2d 568 (Ky.1991), provides guidance. After reaffirming its commitment to the \\\"absolute bar\\\" rule for violations of the notice requirement, it rejected that absolute foreclosure as a sanction for other varieties of commercial unreasonableness:\\nWe now turn to the myriad of other circumstances in which the finding of commercial unreasonableness is based on some defect other than a failure to give notice. Three possible remedial formulas are described in D. Leibson and R. Nowka, The Uniform Commercial Code of Kentucky, \\u00a7 8.6(G)(2) (1988). Having heretofore reaffirmed our reliance on the first of these when the defect is lack of notice but rejected it in other circumstances, the first approach need not be discussed further.\\n814 S.W.2d at 571.\\nThere are, moreover, intimations in (if not intimations in, at least emanations from) the Maryland case of Harris v. Bower, 266 Md. 579, 295 A.2d 870 (1972), decidedly pointing in the same direction. Attempting to decipher Harris is, to be sure, an exercise not unlike attempting to decode Nordic runes or Egyptian hieroglyphics because its unusual procedural posture puts a reverse spin on every issue. The cryptographic effort, however, is worth making.\\nDonald W. Bower (Bower) was the creditor. The debtor was Anna M. Harris (Harris). In 1964, the creditor, Bower, sold a boat to the debtor, Harris, for $17,000. To guarantee payment of the debt, the debtor gave the creditor a chattel mortgage on the boat. Bower thereby became a secured creditor within the contemplation of the Uniform Commercial Code. The debtor, Harris, defaulted in her payments in the summer of 1969. In December, 1969, Bower obtained a summary judgment against Harris in the amount of $21,-738.25. Bower repossessed the boat on March 30, 1970. There was uncontroverted evidence that at the time of the repossession, the boat had a value of $13,900 on the open market. Three clumsy and ultimately abortive efforts on the part of the creditor to sell the boat in January, 1970, produced an offer of no higher than $4,500. Under the circumstances, the repossessing creditor did not sell the boat.\\nIt was at that point that the provisions of \\u00a7 9-504, 9-505, and 9-507 first came into play. The first \\\"reverse spin\\\" was that the creditor, at the time the case ultimately came to court, had not sold the boat to obtain full or partial satisfaction of his judgment but was still retaining it. The second \\\"reverse spin\\\" is that it was not the creditor who brought suit, seeking a deficiency judgment for the difference between the then-present value of the boat (sold or retained) and the amount of the debt. It was the debtor, rather, who brought suit, seeking an accounting. Basically, she was seeking a declaration that the retention of the collateral by the creditor operated as a complete satisfaction of her, the debtor's, obligation to the creditor.\\nThe primary thrust of the debtor's case, at trial and on appeal, was that the creditor, by retaining the boat, had engaged the gears of \\u00a7 9-505(2) which provides that \\\"a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation.\\\" (emphasis supplied). The Court of Appeals held that the creditor, Bower, had not brought down upon his head the full fury of the \\\"satisfaction of the obligation\\\" consequences of \\u00a7 9-505(2). He had never \\\"propose[d] to retain the collateral in satisfaction of the obligation.\\\" It was not his intention to do so. It was not in his interest to do so. He had simply remained \\\"stuck with the boat\\\" because of his inability to obtain a satisfactory sale price. Notwithstanding the fact that the boat was still in his possession, there was a critical difference between wishing and proposing to retain it, on the one hand, and being stuck with it, on the other hand. The provisions of \\u00a7 9-505(2) were thus eliminated from the equation.\\nIn rejecting the debtor's argument with respect to \\u00a7 9-505(2), the Court of Appeals made it clear that the creditor's actions in repossessing and then in retaining the boat had not operated to extinguish the entire debt owing to him from the debtor:\\nIt must be assumed that he [the creditor] rejected [the debtor's] proposal and'it seems clear to us that he anticipated the recovery from the appellant of the full amount of the judgment. The estate of Harris is insolvent but it is fair to assume that appellant is not judgment-proof. While we think Bower has come perilously close to painting himself into a corner in this regard we are unwilling, in these circumstances, to hold that what he has done extinguishes the entire debt, (emphasis supplied).\\n266 Md. at 587-588, 295 A.2d 870.\\nAt that point, the opinion in Harris v. Bower becomes a bit murky. It blends into a single discussion the provisions of \\u00a7 9-504(3), dealing with the requirements that a creditor sell a chattel in a commercially reasonable way in order to be entitled to a full award for any resulting deficiency, and the provisions of \\u00a7 9-507, dealing with the entitlement of an agreed debtor to recover for any losses incurred by the failure of the creditor to act in a commercially reasonable way. Although the suits may be coming from different directions in \\u00a7 9-504 and in \\u00a7 9-507, both provisions discuss, in completely compatible terms, what it is that makes a sale commercially reasonable. Section 9-507(2), however, includes the following interesting statement:\\nThe principles stated in the two preceding sentences with respect to sales also apply as may be appropriate to other types of dispositions.\\nAfter quoting that provision, the Harris v. Bower opinion turned to \\\"an excerpt from paragraph 6 of the 'Official Comment' under \\u00a7 9-504\\\":\\nSee Section 9-507(2). Under that provision a secured party who without proceeding under Section 9-505(2) held collateral a long time without disposing of it, thus running up large storage charges against the debtor, where no reason existed for not making a prompt sale, might well be found not to have acted in a \\\"commercially reasonable\\\" manner. See also Section 1-203 on the general obligation of good faith.\\n266 Md. at 589, 295 A.2d 870.\\nWhat the Harris v. Bower opinion seemed to do was to make the unnecessarily long retention of the collateral because of a commercially unreasonable failure to sell the functional equivalent of a commercially unreasonable sale. The equation of a commercially unreasonable failure to sell with a commercially unreasonable sale and the fact that the blameworthy creditor in that regard will suffer the same adverse consequences in either event seemed clear as the Court commented, 266 Md. at 589, 295 A.2d 870:\\nWhile the text of the UCC does not deal, in ipsissimis verbis, with the odd situation here presented we think any reasonable interpretation of the meaning of the italicized sentence in the excerpt from \\u00a7 9-507(2), supra, will point the way to a proper appraisal of Bower's conduct, especially when considered in the light of the Official Comment, supra.\\nThat predicate having been laid, the Harris v. Bower opinion then turned its attention to whether the failure of the creditor to sell the boat at a price reasonably reflecting its market value was the result of the commercial unreasonableness of the creditor's quantitatively and qualitatively inadequate efforts to do so. It concluded that that was, indeed, the case. It pointed out that the boat had been held throughout the course of \\\"two full boating seasons,\\\" 266 Md. at 591, 295 A.2d 870, and that it was a chattel that \\\"if not carefully and constantly maintained,\\\" would \\\"depreciate at a ruinously pro gressive rate.\\\" Id. The conclusion of the Court of Appeals was clear: \\\"Bower permitted this to happen and this seems to us to be not only not commercially reasonable but also to be utterly lacking in common sense.\\\" Id.\\nThe holding of the Court of Appeals was clear that the creditor, Bower, had acted in a commercially unreasonable way:\\nThe uncontroverted evidence seems to support the notion that the boat had a fair market value of $13,900 when he took title and possession. What it was worth at the time of trial we can only guess, since the chancellor made no finding, but it seems safe to assume it was worth a great deal less. The shrinkage in value must be attributed to Bower's conduct which we are persuaded to categorize as not commercially reasonable.\\n266 Md. at 591-592, 295 A.2d 870.\\nWhat also clearly emerged from Harris v. Bower is that the creditor, Bower, notwithstanding his commercial unreasonableness, was not absolutely barred from obtaining a deficiency judgment. Indeed, the remand of the case made it clear that he was entitled to a deficiency judgment, to be determined on remand. The only question was one of how large or small that deficiency should be.\\nThe remand was for the express purpose of making the proper arithmetic calculation. It was a simple problem in subtraction. The minuend was not in dispute. It was $21,-738.75. The battle was over the appropriate subtrahend. The debtor was urging a large subtrahend, a fair market value in the neighborhood of $13,900, which would yield a relatively smaller remainder or deficiency. The creditor, on the other hand, was hoping for a much smaller subtrahend, a market value in the neighborhood of $4,500, which would yield a proportionately higher remainder or deficiency.\\nBoth sets of figures, however, stand for the same proposition that the failure of a creditor to conduct a commercially reasonable sale, unlike the failure of a creditor to give notice, will not constitute an absolute bar to a deficiency judgment. If that were not the case, no exercise in subtraction would have been necessary. The remainder would have been zero as a matter of law.\\nII. The Unsettled Law: The Alternative to an Absolute Bar\\nThe unusual procedural posture of Harris v. Bower makes its holding a trifle oblique. The message is nonetheless clear that the sanction imposed on a creditor for a commercially unreasonable sale will not be that of an absolute bar to any deficiency judgment. We cannot read into Harris v. Bower, however, any clear message as to what the alternative sanction should be. It may be that of \\\"set-off,\\\" with the burden of establishing a subtrahend higher than the commercially unreasonable sale price cast squarely on the debtor. It may, on the other hand, be that of a \\\"rebuttable presumption,\\\" with the burden of establishing that the subtrahend is not presumptively as great as the minuend itself cast squarely on the creditor.\\nIt would, of course, be possible to read the Harris v. Bower remand as a deliberate election of the \\\"set-off' approach. That, however, would probably be a case of reading more into the work of art than the artist ever intended. The predicate for such a reading would be the two sentences:\\nWe think the chancellor could very well find that the appellant is entitled to a credit of $13,900. We shall remand the case for his further consideration in this regard, (emphasis supplied).\\n266 Md. at 592, 295 A.2d 870.\\nSuch a reading, however, would probably be attributing a conscious decision to a mere sub silentio action that was not the result of conscious choice. What we now call the \\\"rebuttable presumption\\\" approach had not significantly developed by the time that Harris v. Bower was decided in 1972, although there had been faint inklings in that regard. There is no clue or shred of evidence that Harris v. Bower considered it as a possibility, however, or even considered that there was a choice to be made between alternative sanctions to the abso lute bar. In terms of choosing an alternative sanction, therefore, we conclude that we are writing on a clean slate.\\nIn making a conscious policy choice between the \\\"rebuttable presumption\\\" approach and the \\\"set-off' approach as an alternative to an absolute bar, we conclude that the \\\"rebuttable presumption\\\" rule represents a fair accommodation between the legitimate interests of the debtor and the residual interests of even a creditor whose actions have not necessarily been commercially reasonable and is, therefore, the preferred approach. This was the position taken by the Supreme Court of Kentucky in Holt v. Peoples Bank of Mt. Washington, 814 S.W.2d 568 (Ky.1991). It weighed the two alternatives to an absolute bar and concluded that the \\\"rebuttable presumption\\\" rule was a better approach:\\nThe second and third approaches described by Professors Leibson and Nowka are substantially the same except as to the allocation of the burden of proof. In our view, the second approach is preferable. It begins with a presumption that the collateral is worth at least the amount of debt it secures and the burden is cast upon the secured party to prove that its commercial unreasonableness did not result in diminished proceeds, or if it did, by what amount. Upon failure of the secured party to prove that its conduct did not diminish the proceeds, the presumption that the collateral is of sufficient value to satisfy the debt would control and the claim for deficiency would be forfeited. If, in such circumstances, a secured party is unwilling to depend entirely upon the view, if any, that its conduct did not result in diminished proceeds, it may present evidence as to the amount of damage it caused and such sum will be deducted from the deficiency. To avoid application of the presumption that the collateral is of sufficient value to satisfy the debt, a secured party whose conduct has been found to be commercially unreasonable must prove that its conduct did not cause damage or if it did, by what amount.\\\"\\n814 S.W.2d at 571.\\nAs part of this widespread trend toward the \\\"rebuttable presumption\\\" rule, Massachusetts, in Shawmut Bank, N.A. v. Chase, 34 Mass.App.Ct. 266, 609 N.E.2d 479 (1993), was even more persuasive:\\nMassachusetts has rejected the forfeiture approach. The issue whether Massachusetts would adopt the rebuttable presumption or the set-off approach was expressly left open....\\nAs between two approaches, we think the rebuttable presumption approach, which has more widespread acceptance elsewhere, is fairer. Generally, the facts concerning any sale of collateral are peculiarly within a creditor's knowledge, and a debtor who has not been notified of such sale would be at a disadvantage in trying to prove the extent of the resulting loss. Moreover, it seems more appropriate, and more likely to encourage compliance, to place the burden of proof on the party who failed to live up to the requirements of the Code than on the innocent party, (citations omitted).\\n609 N.E.2d at 483.\\nThe Supreme Court of New Mexico, in Clark Leasing Corp. v. White Sands Forest Prod., 87 N.M. 451, 535 P.2d 1077 (1975), rejected the \\\"absolute bar\\\" approach in a case involving a commercially unreasonable sale, catalogued a large number of American jurisdictions adopting the \\\"rebuttable presumption\\\" approach, described in detail the operation of that approach, and then concluded:\\nWe believe simple considerations of fair play mandate the adoption of this rule for New Mexico.\\n87 N.M. at 456, 535 P.2d at 1082.\\nI. The Jury Instruction: Error, Perhaps, But Not the Error Alleged\\nAs we have earlier pointed out, the judge's instruction to the jury as to what constituted commercial reasonableness and as to the verdict it should return if it found commercial reasonableness was a model instruction. When the trial judge turned his attention to what the jury should do if it found that the sale was not conducted in a commercially reasonable manner, however, the instruction given was not correct. Notwithstanding the fact that we are affirming the judgment in this case, we hasten to point out that we are by no means placing our imprimatur on the instruction in that latter regard actually given. We are not.\\nThe instruction did not recognize the \\\"rebuttable presumption\\\" rule or seek to explain it, as any instruction hereafter should do. When it came to the issue of fair market value, the instruction did not allocate the burden of proof to the creditor, lest the presumption that the value was sufficient to wipe out the entire debt remain unrebutted.\\nNotwithstanding our conclusion that the instruction was erroneous, we are nonetheless affirming the trial court. That calls for some brief explanation. The limited contention raised by the Rudens was that the trial judge committed error by declining to give their requested instruction No. 2 or its equivalent, which would have informed the jury that, if it found commercial unreasonableness, the Bank was absolutely barred from recovering any deficiency award. As we have discussed at length, that is not the law and the trial judge was, therefore, correct in refusing to give such an instruction. The alleged error urged on us by the Rudens was, we hold, not an error at all.\\nWith respect to any follow-up instruction as to what the jury might be able to do by way .of some deficiency judgment even if it found commercial unreasonableness, the Rudens took no position. They did not even recognize the possibility of any lesser or alternative sanction, let alone a choice between alternative sanctions. They requested no jury instruction dealing with such a possibility. They made no objection in that regard to the instruction that was actually given.\\nWith respect to the objection timely made and the contention preserved for appellate review, there was no error. With respect to the error that actually occurred, there has been no objection, then or now, and there is nothing preserved for appellate review. Plain error? Hardly. The \\\"rebuttable presumption\\\" rule is a relatively arcane nuance of the law never heretofore discussed in Maryland. The error was subtle, not plain.\\nInstructions Only Proper on Issues Supported by Evidence\\nThe Rudens also contend that the judge erred in failing to give the following requested instruction to the jury:\\nAs just stated, one of the issues in dispute between the Bank and the Rudens is whether the Bank purchased the vessel itself. The law does not allow the Bank to purchase the vessel at a private sale. If you determine that the Bank purchased the vessel itself, and the purchase was made in a private sale, the Bank is not entitled to a deficiency judgment and your verdict on the Bank's claim must be for the defendants.\\n\\\"A litigant is entitled to have his theory of the case presented to the jury, but only if that theory of the case is a correct exposition of the law and there is testimony in the case which supports it.\\\" Levine v. Rendler, 272 Md. 1, 13, 320 A.2d 258, 265 (1974). The trial court, in this case, found that that instruction was not supported by the evidence. We agree.\\nThere was no dispute that: 1) the Bank held a public sale in an attempt to sell the Rudens' boat on January 27, 1987; 2) bidding opened at $35,000, but no bids were received; 3) the public sale was a nullity because the boat was still in federal custody; and 4) the boat was sold in a private sale to two men from Florida for $12,500. It is further uneontroverted that a letter was sent to the Rudens in July, 1987 incorrectly stating that the boat had been sold for $35,000, the amount of the opening bid at the public sale.\\nThe confusion that generated the controversy surrounds the documentation that was prepared by a documentation company to comply with Coast Guard regulations and to complete the transfer of title to the two purchasers of the boat after the private sale had taken place. Evidence was offered that the documentation company prepared two sets of bills of sale: one to the Bank for Thirty-Five Thousand Dollars ($35,000) and one to the purchasers for Twelve Thousand Five Hundred Dollars ($12,500).\\nThe documentation company, to be prepared for any contingency, had prepared two sets of documents. One set, however, was meaningless because it related to the aborted sale in January, 1987, that turned out to be an utter nullity. Out of 1) the Bank's uncontrovertedly incorrect letter to them in July, 1987, and 2) the meaningless set of documents prepared by the documentation company that referred only to a nullity, the Rudens have concocted some convoluted theory that the Bank purchased the boat and thereby violated the provisions of \\u00a7 9-504(3). In a mental sleight-of-hand that we are confessedly not quick enough to follow, the Rudens are attempting somehow to spin a factual reality out of two undisputed unrealities.\\nThe actual evidence in the case showed indisputably that there was only one valid sale. The first sale, a public sale in which bids were opened at $35,000, was a nullity. The second sale, a private sale, was the only valid sale, and uncontradicted evidence, in the form of a written contract and a check, established that the boat was sold to two purchasers for $12,500. There was no support in the evidence for the requested instruction. We find no error.\\nPrivate Sale Not Foreclosed\\nThe Consumer Loan Note and Security Agreement signed by the Rudens stated, in its pertinent part, that:\\n(4) Repossession and Sale of Collateral: If I default, I will deliver the Collateral to you, or you can repossess it without either notice to me or any court proceedings. In either event, you have the right to (but are not required to) sell the Collateral at public sale to reduce the amount owed to you by me. If the amount of the sale proceeds are not enough to pay all amounts owed under this Note and Security Agreement (including any costs which you incur for insurance, repossession, storage, repair or sale of the Collateral), you have a right to obtain a deficiency judgment against me for the balance which is still owed, (emphasis supplied).\\nThe Rudens contend that the contract did not authorize the Bank to sell the boat at a private sale. They argue that the Bank's statement that it had the right to sell the boat at public sale is a waiver of its 9-504(3) right to sell the boat at either a public or a private sale. Thus, the Rudens assert that the circuit court erred in failing to instruct the jury that the Bank was not entitled to a deficiency judgment if it sold the boat at a private sale.\\nThe trial court found that the Bank did not waive its rights under 9-504(3). We agree. The contract states that, although the Bank is permitted to sell the boat at a public sale, it is not required to do so. The contract does not explicitly state that the Bank is permitted to sell the boat at a private sale, but neither does it affirmatively waive the Bank's statutory right. The words \\\"but are not required to\\\" leave open the possibility that another type of sale is contemplated and permitted. We see no error.\\nInadmissible Hearsay\\nIn November, 1986, the Bank had the boat appraised by Ed Rowe & Associates. Edward D. Rowe, III, a marine surveyor and consultant located in Fort Lauderdale, Florida, performed the survey. Rowe's report stated that the boat's appraised value was $45,000 and detailed its condition. At trial, the Rudens were not permitted to introduce Rowe's report into evidence. The Rudens were allowed, however, to cross-examine an officer of the Bank as to the contents of the report. They contend that the trial court abused its discretion in failing to admit Rowe's report into evidence. We disagree.\\nThe Rudens contend that Rowe's report is not hearsay under the theory that it is a declaration offered against the Bank by the Bank's agent or servant. B & K Rentals & Sales Co. v. Universal Leaf Tobacco, Co., 324 Md. 147, 596 A.2d 640 (1991). They fail, however, to set forth how Rowe is either a servant of the Bank or its agent, and the evidence does not support their assertion. See generally Chevron U.S.A. v. Lesch, 319 Md. 25, 32, 570 A.2d 840, 844 (1990) (master/servant relationship only exists when employer has right to control and direct servant in performance of work); Mercedes-Benz of North America v. Garten, 94 Md.App. 547, 557, 618 A.2d 233, 237 (1993) (actual agency relationship exists when there is manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act).\\nRowe's report is hearsay in that it is written evidence of a statement made out of court that is offered in court by the Rudens to prove the truth of the matter asserted therein, the value and condition of the boat. Aetna Casualty & Sur. Co. v. Kuhl, 296 Md. 446, 452, 463 A.2d 822, 826 (1983), quoting C. McCormick, Law of Evidence \\u00a7 246, at 584 (2d ed. 1972). No argument or showing was made that Rowe was unavailable to be called as a witness. Therefore, Rowe's report is inadmissible hearsay, and we find no abuse of discretion on the part of the circuit court in failing to admit it into evidence.\\nJUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANTS.\\n. If, on the other hand, there is a surplus beyond the amount necessary to satisfy the debt and the reasonable expenses of repossessing and disposing of the collateral, the creditor must account to the debtor for such surplus.\\n. Actually, the original debtor was John S. Harris. He died after the chattel in question had been purchased by him but before the litigation began. His interests were assumed by his widow, Anna M. Harris. For communicative simplicity, however, it suffices to refer to the debtor simply as \\\"Harris.\\\"\"}"
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+"{\"id\": \"4397705\", \"name\": \"Lee Roy THURMAN v. STATE of Maryland\", \"name_abbreviation\": \"Thurman v. State\", \"decision_date\": \"1991-10-31\", \"docket_number\": \"No. 1939\", \"first_page\": \"125\", \"last_page\": \"132\", \"citations\": \"89 Md. App. 125\", \"volume\": \"89\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:50:24.194369+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lee Roy THURMAN v. STATE of Maryland.\", \"head_matter\": \"597 A.2d 997\\nLee Roy THURMAN v. STATE of Maryland.\\nNo. 1939,\\nSept. Term, 1990.\\nCourt of Special Appeals of Maryland.\\nOct. 31, 1991.\\nCertiorari Denied Feb. 12, 1992.\\nKreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Davis R. Ruark, State\\u2019s Atty. for Wicomico County of Salisbury, on the brief), for appellee.\\nJos\\u00e9 Felip\\u00e9 Anderson, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.\\nArgued before BISHOP, CATHELL and DAVIS, JJ.\", \"word_count\": \"2013\", \"char_count\": \"12207\", \"text\": \"BISHOP, Judge.\\nAppellant, Lee Roy Thurman, was charged in the Circuit Court for Wicomico County with various robbery, weapon, assault, battery, false imprisonment, theft, and conspiracy offenses. After a hearing, the trial court denied Thurman's motion to dismiss, for failure to comply with the Interstate Agreement on Detainers, Md.Ann.Code art. 27, \\u00a7 616A (1987 & Supp.1991).\\nThereafter, on November 23, 1990, Thurman pleaded not guilty to an agreed statement of facts, was found guilty of robbery with a deadly weapon and use of a handgun in the commission of a felony, and was sentenced to twenty years on the robbery count and five years consecutive, on the handgun charge.\\nIssue Presented\\nAppellant Thurman presents the following issue:\\nDid the trial court properly deny Thurman's motion to dismiss the charges against him on grounds of an alleged violation of the 180-day speedy trial provision of the Interstate Agreement on Detainers?\\nStatement of Facts\\nThurman was indicted in Wicomico County, Maryland on various charges including robbery with a deadly weapon. While incarcerated at the Federal Correctional Institute in Petersburg, Virginia, Thurman was informed that a detain-er had been filed against him. Thurman contacted a Tennessee attorney who helped him to prepare an Interstate Agreement on Detainers Act (IAD) request for final disposition of the outstanding Wicomico County charges. The inside address on Thurman's IAD request form read:\\nSTATE OF MARYLAND PROSECUTING OFFICERS, and COURTS OF JURISDICTION from which indictments, informations or Complaints are pending:\\nCOURT: Wicomico Co. Court .\\nPROSECUTOR: Wicomico Co. State Attorney Office\\nThe envelope containing the IAD request and the return receipt for certified mail were addressed only to the Circuit Court of Wicomico County. The return receipt indicates that the Clerk of the Circuit Court received the mailing on January 9, 1990.\\nAt the hearing on Thurman's motion to dismiss, Mark Bowen, the Clerk of Court who signed the return receipt, testified that he was not able to locate the envelope and IAD forms among the Circuit Court's papers. He testified that if he received a document addressed as above, he would \\\"[n]ot necessarily\\\" forward it to anyone else. He testified that, even if the Circuit Court did not have an open file on Thurman, there was no set office policy for forwarding the request, although, he may have forwarded such a document to either the District Court or the State's Attorney's Office.\\nMary Wright, Administrative Assistant with the Wicomico County State's Attorney's Office, maintained a file for detainers and extradition requests as part of her duties. Wright testified that a case file had been opened for Thurman's case in September 1989, she did not find the IAD request upon searching Thurman's file, and she had no personal knowledge of ever receiving a request from Thurman in January 1990.\\nDeborah Stanley, District Court Secretary for the State's Attorney's Office, testified that she maintains a file for detainers but it did not contain an IAD request from Thurman and she had no personal knowledge of receiving Thurman's request in January 1990.\\nSampson Vincent, the Deputy State's Attorney assigned Thurman's case, testified that he opened a file on Thurman in September 1989, did not find an IAD request upon searching his Thurman file, and had no personal knowledge of ever receiving a request from Thurman.\\nThe trial court found there was evidence that a Notice of Request for Disposition was given to the appropriate court but that there was absolutely no evidence of any attempt to deliver the notice to the prosecuting officer. The court found as a fact that the IAD request was not delivered to the prosecuting officer. The court concluded that Thurman did not comply with Md.Ann.Code art. 27, \\u00a7 616D and therefore the 180-day speedy trial clock did not start to run. The court denied Thurman's motion to dismiss.\\nDiscussion\\nAppellant Thurman asserts that he is entitled to have all charges against him dismissed because the State failed to bring him to trial within 180 days after receiving his request for final disposition, pursuant to the Interstate Agreement on Detainers, Md.Ann.Code art. 27, \\u00a7 616D. He argues that by sending one copy of the IAD notice and request to the Circuit Court of Wicomico County, he fulfilled the notice requirements under \\u00a7 616D because the Circuit Court had a duty to send the IAD notice and request to the State's Attorney's Office. We hold that Thurman did not satisfy the notice requirements of \\u00a7 616D necessary to invoke the statutory benefit of a trial within 180 days and is therefore not entitled to a dismissal.\\nArticle 27, \\u00a7 616D sets forth the procedures whereby a prisoner incarcerated outside of Maryland may bring about the disposition of untried charges against him in the State of Maryland. Section 616D provides in pertinent part that:\\n(a) Notice of imprisonment and request for disposition; time of trial; . \\u2014 Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, . on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment____\\n(b) To whom notice and request sent \\u2014 The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent . to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.\\n(Emphasis added.) Subsection 616D(a) has been further supplemented by the Maryland Legislature with \\u00a7 616Q which states:\\nAs to any request by a person imprisoned in another party state for trial in this State, written notice shall not be deemed to have been caused to be delivered to the prosecuting officer and the appropriate court of this State in accordance with \\u00a7 616D(a), . until such notice or notification is actually received by the appropriate court and by the appropriate State's attorney of this State, his Deputy, an assistant, or any other person empowered to receive mail on behalf of the State's Attorney.\\nMd.Ann.Code art. 27, \\u00a7 616Q (emphasis added). The purpose of these notice requirements is to ensure that the operative State officials are aware of the prisoner's request so that they may take steps, within the prescribed time limits, to bring the pending case to trial. State v. Barnes, 273 Md. 195, 209, 328 A.2d 737 (1974). The language in \\u00a7 616Q makes clear the legislative intent to restrict and clarify the notice provision of \\u00a7 616D(a) so that the 180 day period does not begin to run until the prisoner's notice and request are actually received by the appropriate prosecuting officer and court in this State. Davidson v. State, 18 Md.App. 61, 67, 305 A.2d 474 (1972). \\\"This supplemental section . prevents a prisoner from becoming entitled to the dismissal of charges against him in situations where the prosecutor and the trial court do not have actual notice of his request.\\\" Id.\\nIn Hines v. State, 58 Md.App. 637, 649, 473 A.2d 1335 (1984), we affirmed that the notice provisions of \\u00a7 616D(a) are \\\"mandatory and not directory,\\\" and that the burden is on the prisoner to request the benefits of the Interstate Agreement on Detainers in the appropriate manner. Id. at 649-50, 473 A.2d 1335 (quoting Isaacs v. State, 31 Md.App. 604, 611, 358 A.2d 273 (1976)). The requirement that notice be delivered by certified mail is to provide corroboration for bald assertions that notice was given and a means to trace and establish the date of receipt should a dispute arise concerning delivery. Barnes, 273 Md. at 209, 328 A.2d 737. Even when a statute requires that notice be given by registered mail, it has been held that notice actually received, though not by registered mail, is valid because the intent of the statute is to insure actual notice. Id. at 210, 328 A.2d 737.\\nIn the case sub judice, however, there is neither technical compliance with the statute nor compliance with the intent of the statute. No notice was sent to or actually received by the State's Attorney's Office. Thurman concedes that he mailed, by certified mail return receipt requested, only one copy of his IAD request to the Circuit Court for Wicomico County. At the hearing on the motion to dismiss, the Clerk of Court testified that it was not the policy of the court to forward documents, as Thurman's request was addressed, to the State's Attorney's Office. In addition, the Administrative Assistant, the District Court Secretary, and the Deputy State's Attorney assigned to Thurman's case, all of whom were responsible for keeping a copy of such a request, testified that Thurman's IAD notice and request were not in their respective files and that they had no personal knowledge of having received them.\\nA very similar set of facts to those in the case sub judice, were presented in Williams v. Maryland, 445 F.Supp. 1216 (D.Md.1978). In that case, the petitioner failed to mail the certificate required by \\u00a7 616D(a), and he personally contacted only the court, not the state's attorney's office. The court found that the State had not violated the IAD because the petitioner failed to comply with the formal notice requirement of the Act, Md.Ann.Code article 27, \\u00a7 616D. The court stated:\\nAlthough strict compliance with each particular of the notice requirement may not be mandatory, see, e.g., State v. Barnes, 273 Md. 195, 328 A.2d 737 (1974), more is required than merely addressing a request to one of the persons required by statute to be notified____ The notice provision of the IAD was obviously enacted to ensure adequate notification to the state, and its particulars may not be ignored totally____ A prisoner seeking to benefit from the statute must first meet the burden of compliance with the Act. Petitioner, having failed to satisfy the notice prerequisites of the Act . may not now complain that he was denied its benefits. See Beebe v. Vaughn, 430 F.Supp. 1220, 1223-24 (D.Del.1977); Isaacs v. State, 31 Md.App. 604, 358 A.2d 273, 276-79 (1976).\\nId. at 1220.\\nWe agree. We hold the language of the statute makes perfectly clear the notice requirements for invoking the benefits of the statute. It requires that the prisoner notify both the State's Attorney's Office and the appropriate court. There is no basis in the statute for finding a duty on the part of the Circuit Court to notify the State's Attorney's Office on behalf of the prisoner, as urged by the Appellant. Merely delivering one copy of the IAD request to one of the persons required by the statute to be notified is not sufficient. We conclude that the trial court did not err when it found, from the evidence, that Thurman did not deliver notice to the State's Attorney's Office and that the State's Attorney's Office did not, in fact, receive notice of Thurman's IAD request. Therefore, we affirm the trial court's denial of Thurman's motion to dismiss. Because we affirm, it is unnecessary to address other issues raised by Appellee, State of Maryland.\\nJUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.\\n. This court noted that contrary results have been reached in jurisdictions without supplemental provisions to the IAD comparable to \\u00a7 616Q. Davidson, 18 Md.App. at 67, 305 A.2d 474.\"}"
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+"{\"id\": \"4404253\", \"name\": \"Douglas W. FULTZ et al. v. Roberta Souder SHAFFER\", \"name_abbreviation\": \"Fultz v. Shaffer\", \"decision_date\": \"1996-08-29\", \"docket_number\": \"No. 1657\", \"first_page\": \"278\", \"last_page\": \"310\", \"citations\": \"111 Md. App. 278\", \"volume\": \"111\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:25:50.503371+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Douglas W. FULTZ et al. v. Roberta Souder SHAFFER.\", \"head_matter\": \"681 A.2d 568\\nDouglas W. FULTZ et al. v. Roberta Souder SHAFFER.\\nNo. 1657,\\nSept. Term, 1995.\\nCourt of Special Appeals of Maryland.\\nAug. 29, 1996.\\nMatthew W. Black, Jr. (Heeney, Armstrong & Heeney, on the brief), Rockville, for appellant, Fultz.\\nSteven M. Gilbert, Assistant County Attorney (Charles W. Thompson, Jr., County Attorney and Linda B. Thall, Senior Assistant County Attorney, on the brief), Rockville, for appellants Montgomery County and Chief Administrative Officer.\\nCassandra P. Hicks (Pasternak & Fidis, P.A., on the brief), Bethesda, for appellee.\\nArgued before CATHELL, HARRELL and MURPHY, JJ.\", \"word_count\": \"10344\", \"char_count\": \"63787\", \"text\": \"CATHELL, Judge.\\nIn this case, we are asked to determine whether disability retirement benefits, received as a result of an injury occurring after the parties' divorce, were properly considered retirement benefits pursuant to a settlement agreement between the parties, which entitled the wife to share in a portion of her former husband's \\\"pension and retirement benefits\\\" if, as, and when paid to him. The trial court found that appellee, Roberta Shaffer, was in fact entitled to receive a share of those disability benefits, despite the claim by her former husband, appellant, Douglas Fultz, that the settlement agreement did not encompass them. He appealed the trial court's judgment, asking:\\nWhether the Trial Court erroneously awarded the former wife a marital share of the former husband's disability benefits paid as a result of injury and total disability occurring after the divorce.\\nWe are advised that, subsequent to taking this appeal, Douglas Fultz died; we are told that a suggestion of death has been, or will be, filed with this Court. We note that, because the underlying case involves the classification of significant property rights, our disposition of this appeal will not abate as a result of Mr. Fultz's death. See Goldman v. Walker, 260 Md. 222, 224-25, 271 A.2d 639 (1970).\\nAlso at issue on appeal is a provision in the parties' settlement agreement that required Mr. Fultz to elect a 100% joint and survivor annuity in favor of Ms. Shaffer. Ms. Shaffer asked the trial court to order her former husband to make that election. Montgomery County, which administers the retirement system at issue, disputed Mr. Fultz's ability to do so more than six years after the divorce. The County, also an appellant in the instant appeal, is aggrieved by the trial court's order that the election be made and asks:\\nA. Was the [trial] court authorized to award a 100% joint and survivor benefit to the former spouse?\\nB. Did the [trial] court have a legal basis for overruling the administrative order below that the former spouse was ineligible for designation as a 100% joint and survivor beneficiary?\\nWe shall address each appellant's concerns in turn, following a recitation of the relevant facts.\\nCHRONOLOGY OF THE CASE\\nThe parties were married in August of 1977, approximately three months after Mr. Fultz commenced employment as a Montgomery County police officer. He remained so employed throughout the marriage. His status as a Montgomery County employee entitled him to membership in the Montgomery County Employees' Retirement System (ERS), which was established \\\"to maintain a system of retirement pay and benefits for [Montgomery County's] employees which is adequately funded and insures employees sufficient income to enjoy during their retirement years.\\\" Montgomery County Code \\u00a7 33-34 (1994); see also id. \\u00a7 SS-SGOb). In 1988, the parties separated and, on February 14,1990, they entered into a Voluntary Separation and Property Settlement Agreement (the Separation Agreement), whereby various personal and property issues were resolved, including Ms. Shaffer's entitlement to a portion of Mr. Fultz's accrued pension benefits upon retirement and a 100% joint and survivor annuity. Specifically, they agreed:\\n9. DIVISION OF PENSION AND RETIREMENT BENEFITS\\n. The parties acknowledge that the husband's pension and retirement benefits earned during the marriage are marital property, and as such, are to be divided equally between [them].\\nTherefore, if, as and when the husband retires, or is eligible for retirement, the wife shall receive, by direct payment from Montgomery County, one-half of the monthly pension and retirement benefits, specifically including all Cost of Living Adjustments (COLAS) thereon, earned during the marriage, to be calculated as follows:\\nWife's monthly = * X Husband's monthly\\npension benefit 2 pension benefits\\n* = Number of years of marriage\\nNumber of years of service\\nThe husband further agrees to select a 100% joint and survivor pension, and shall irrevocably designate the wife as a survivor and lifetime beneficiary of the pension and retirement benefits acquired through his employment with Montgomery County. The wife shall be entitled to the benefits payable to the surviving spouse based upon the above formula. In the event that the husband fails to comply with the requirements of this Article, and fails to designate the wife as the surviving spouse and beneficiary of death bene fits payable under the Employees' Retirement System of Montgomery County, his estate shall be liable to the wife for the full amount of the husband's death benefits to which she would be entitled, pursuant to this paragraph.\\n10. QUALIFIED DOMESTIC RELATIONS ORDER\\nThe husband specifically agrees to cooperate with the wife, to perform any acts, and to execute any documents, necessary to enable the wife to prepare obtain [sic] a Qualified Domestic Relations Order, to effectuate the provisions of Article [9] above. The Qualified Domestic Relations Order shall designate the wife as the alternate payee/surviving spouse under the Employees' Retirement System of Montgomery County, and shall recognize her right to receive her designated portion of the husband's retirement benefits as a division of marital property. The husband further agrees . in the event that any Qualified Domestic Relations Order is rejected by the retirement system administrators, for any reason, to cooperate fully with the wife and modify any such 0[r]der, to obtain its approval and acceptance by the administrators. The parties agree that the Court shall retain continuing jurisdiction over the Order until it has been approved and accepted by Montgomery County, and/or the plan administrators.\\nOn February 23, 1990, the parties were divorced by decree entered in the Circuit Court for Montgomery County. The Separation Agreement was incorporated, but not merged, into the final decree. Pursuant thereto, the court retained continuing jurisdiction over the case, pending final approval of the Qualified Domestic Relations Order (QDRO).\\nThereafter, Mr. Fultz was found to have sustained a service-connected disability and was placed on disability retirement on February 19,1992. In conjunction therewith, he began receiving disability benefits. Thereafter, in February of 1993, Ms. Shaffer's attorney contacted the County Attorney for Montgomery County, confirming an earlier discussion that concerned the effect of Mr. Fultz's disability upon Ms. Shaffer's rights to her former husband's retirement benefits under the Separation Agreement and whether Ms. Shaffer was entitled either to share in the disability benefits then being received by Mr. Fultz or begin receiving payment of her share of the accrued retirement benefits. Ms. Shaffer's attorney reiterated the County's position that disability benefits are not divisible. in divorce, see \\u00a7 33-54, and stated her understanding that Ms. Shaffer's share of the retirement benefits under the Separation Agreement remained unchanged by Mr. Fultz's disability: \\\"She has the same options with respect to the receipt of her portion of the marital retirement benefits as if [Mr. Fultz] had not retired on disability.\\\" The County Attorney agreed with Ms. Shaffer's summary of their discussion, adding, \\\"The fact that [Mr. Fultz] has already retired on a disability retirement has no [e]ffect on the amount which [Ms. Shaffer] receives ., nor does it affect the dates on which the benefits could commence.\\\"\\nMr. Fultz's Petition\\nPrompted by Ms. Shaffer's attempts to ascertain her right, if any, to the disability benefits under the terms of the Separation Agreement, Mr. Fultz sought, on March 25, 1993, a formal determination of the issue by the Chief Administrative Officer (CAO) of the ERS. Specifically, he posed the following question to the CAO for resolution:\\nWhen a police officer/pensioner separates from his wife and they sign a Separation Agreement in which she is entitled to a marital share of his pension \\\"if, as, and when he receives it,\\\" and they are divorced, and the husband/pensioner thereafter retires on disability retirement, what, if any, is the wife's entitlement to any kind of pension benefit?\\nHe then restated Ms. Shaffer's position as seeking a reduction in Mr. Fultz's disability benefits \\\"by the marital portion of the vested accrued benefit, even though (apparently) he will not be receiving his share of the vested accrued pension. \\\" His argument to the CAO was predicated upon his belief that \\\"the disability retirement fund exists independent of the vested accrued benefit pension system and it is, in effect, an insurance policy against service related injuries and resulting incapacity.\\\" Thus, he argued, his former wife was not entitled to any part thereof.\\nThe CAO issued his ruling on May 21, 1993, flatly rejecting Mr. Fultz's characterization of the nature of his disability benefits and stating that a \\\"service connected retirement disability benefit is a special form of retirement benefit.\\\" The CAO continued:\\nI have interpreted the term marital property to be no more then the vested accrued benefit as of the date of the divorce. That vested accrued benefit can be split in whatever percentage the parties agree....\\nIf the former spouse has an entitlement to 50% of the vested accrued benefit, the member of the ERS will have his or her benefit reduced by that amount.... [0]ur form agreement . states, among other things, that if a member becomes entitled to the . disability benefit, that member's benefit is reduced by 50% of the vested accrued benefit that pertains to the former spouse.\\n. The determination of Mr. Fultz's disability occurred after the divorce, and accordingly, it will not affect the amount of the former spouse's benefit. By the same reasoning, Mr. Fultz's benefit will be subject to the same reduction, as a result of the former spouse's share, after his disability.\\nThe CAO also ruled that Ms. Shaffer had no present right to participate in the disbursement of Mr. Fultz's disability benefits then being received, but stated that the earliest date upon which Ms. Shaffer could begin receiving any payments under the Separation Agreement was 1997, the first date upon which Mr. Fultz could have retired.\\nMr. Fultz filed an appeal from the CAO's ruling with the Merit System Protection Board (MSPB), claiming that the CAO \\\"misinterpreted\\\" the \\\"if, as and when\\\" language of the Separation Agreement, mischaracterized the nature of his disability benefits, and erred in finding Ms. Shaffer entitled to any part thereof. He sought thereby \\\"[a] ruling stating that the former Mrs. Fultz will not receive a marital portion of [his] accrued vested benefit unless and until [he] actually receives it.\\\" In the alternative, he requested that there be a recalculation of that portion to which she would be entitled. Emphasizing the \\\"if' in the \\\"if, as and when\\\" language of the parties' agreement, he further stated that he \\\"may never actually receive his vested accrued retirement benefit and the extent of his entitlement depends on when payments begin.\\\" In essence, he was arguing that, as long as he was receiving disability payments, he would never achieve retirement status and, thus, his ability to receive the accrued pension benefits would never mature. See Lookingbill v. Lookingbill, 301 Md. 283, 285, 483 A.2d 1 (1984) (Maturity connotes the time at which a pension becomes due and payable.). Until maturity, he maintained, his former wife would not be entitled to begin receiving her share of the retirement benefits.\\nMontgomery County submitted its own letter to the MSPB, setting forth its position in the matter. It began by agreeing with Ms. Shaffer that her share of Mr. Fultz's retirement benefits remained unchanged by his disability retirement\\u2014 that is, in either 1997 or 2002, her fifty percent share was to become due and payable, at which point Mr. Fultz's benefits were to be appropriately reduced, whether he chose to begin receiving his accrued pension benefit or continued to receive a disability retirement benefit. The County further rejected Mr. Fultz's argument that, as long as he continued receiving disability benefits, his retirement date would never arrive and there would be no occasion to pay Ms. Shaffer her share of the accrued benefits. Citing the Montgomery County Code, the County contended that Mr. Fultz had the option to receive a retirement pension benefit at either his early or normal retirement date, whether he chose to accept it or not, and any benefits that would have been received thereafter, whether in the form of continued disability payments or accrued pension benefits, would have been divided between him and his former wife. Seeking affirmance of the CAO's ruling, the County concluded that any method of disbursement other than that suggested by the CAO would create a payment of benefits exceeding the amount payable to both Mr. Fultz and Ms. Shaffer.\\nOn October 23,1993, the MSPB issued its decision affirming the CAO's ruling. The MSPB found Mr. Fultz's contention that his retirement date would never arrive so long as he was on disability to be \\\"contrary to applicable law and the separation agreement which establish that [Ms. Shafferj's pension benefit became fully vested and determined at the time of the parties' divorce in February 1990.\\\" The MSPB further found that, \\\"[sjince the disability events occurred after the separation and final divorce of the parties, those events do not cancel the former spouses [sic] pension benefit. However,\\\" the MSPB continued, \\\"the former spouses [sic] benefit would reduce depending on whichever benefit is payable to [Mr. Fultz],\\\" pursuant to his election at the time of his scheduled retirement.\\nAggrieved by the MSPB's affirmance, Mr. Fultz appealed the matter to the Circuit Court for Montgomery County, on November 24, 1993. In his memorandum to the court, Mr. Fultz, again emphasizing the \\\"if' in the \\\"if, as and when\\\" language of the Separation Agreement, stated that, \\\"unless he recovers and returns to work[, he] will never actually receive the vested benefit which he accrued during the marriage.\\\" Thus, he maintained, \\\"the real issue of the case is whether the former wife/non-pensioner spouse is entitled to any payment of purported marital property.\\\" He contended that the ERS, MSPB, and the County Attorney's Office \\\"failed to apply the correct decisional law and, in effect, re-wrote the parties' agreement.\\\" He began by attacking the time frame within which the CAO calculated Ms. Shaffer's benefit, stating that\\n[t]he Bangs[ ] formula obviously contemplates a fraction which constantly changes, whereas the MC-ERS interpretation fixed the former spouse's entitlement at a specific dollar amount of the vested accrued benefit, as of the date of divorce (contrary to the plain language of the agreement) regardless of any subsequent events. This is clearly a rewriting of the agreement.\\nHe then claimed that \\\"the faulty interpretation of the [Separation Ajgreement led the MC-ERS and the MSPB to avoid analyzing the nature of the retirement benefits\\\" that he was then receiving. He argued that a disability retirement fund is unlike a \\\" 'regular' pension\\\" because it is not funded by income earned by the pensioner during the marriage, thereby insulating it from classification as marital property upon divorce. Instead, he reasoned, the payments he was receiving as a result of his disability were akin to payments made pursuant to a personal injury or workers' compensation claim.\\nMs. Shaffer's Petition\\nAt the same time as Mr. Fultz's appeal to the circuit court, Ms. Shaffer sought a two-pronged ruling by the CAO that confirmed her entitlement to a portion of her former husband's disability benefits, then being received solely by him and, under Bangs, that calculated the payment of any benefits to be received by her according to the terms of the Separation Agreement, which refers to Mr. Fultz's retirement date, rather than the date of divorce, as the dispositive date. Ms. Shaffer also claimed entitlement, under the Separation Agreement, to \\\"the entire 100% survivor annuity based on Mr. Fultz's benefits,\\\" and asked the CAO to order Mr. Fultz to elect said annuity in her favor, the payments therefor to be deducted from his share of benefits only.\\nAs a result of the pendency of the parties' cases in separate venues, Montgomery County moved the circuit court, on February 7,1994, to remand Mr. Fultz's case to the MSPB or stay its proceedings to await the ruling of the CAO on Ms. Shaffer's petition. Contemporaneously therewith, Ms. Shaffer, in two motions, moved the court for leave to intervene in her former husband's case and to consolidate his appeal with their divorce case, over which the court had continuing jurisdiction because no QDRO had yet been submitted and approved. In her motions, Ms. Shaffer claimed that her position was not being adequately represented because the County, although believing her to be entitled to benefits, believed the maturity date to be that of Mr. Fultz's scheduled retirement, rather than February 19, 1992, the date of his disability retirement. She also claimed that, by his actions, Mr. Fultz had breached their Separation Agreement. On March 11, 1994, the circuit court permitted Ms. Shaffer's intervention and ordered that her Motion to Enforce and Mr. Fultz's appeal from the MSPB be consolidated.\\nWhen the CAO issued his ruling, on April 8, 1994, his decision mirrored the ruling rendered by the CAO previously in respect to Mr. Fultz's petition: Ms. Shaffer was not entitled to receive any portion of Mr. Fultz's disability benefits; her right to receive any retirement benefits was to become due and payable in 1997 or 2002. The CAO further found that, \\\"[u]nder the terms of the ERS, Mr. Fultz cannot elect a 100% survivor annuity with respect to a former spouse.\\\" He did note that, had such an election been possible, the cost therefor would have been borne by both parties, rather than solely Mr. Fultz.\\nIn analyzing the issues Ms. Shaffer raised for his consideration, the CAO. began by noting that, although the Separation Agreement memorialized the parties' accord, his interpretation and application thereof would necessarily be \\\"within the constraints of the ERS\\\" regulations. Turning to the matter of the time at which the division of retirement benefits is to be made, the CAO found that \\\"the formula used in the Separation Agreement could result in post-divorce property being transferred to the former spouse,\\\" and concluded that \\\"the retirement plan property to be transferred pursuant to the divorce must be that property calculated as of the date of the divorce.\\\" He found support for this in the Separation Agreement's reference to the division of pension and retirement benefits earned during the marriage and, thus, \\\"interpreted the term marital property to be no more than the vested accrued benefit as of the date of the divorce.\\\"\\nRegarding Ms. Shaffer's claim of present entitlement to a portion of Mr. Fultz's then disability benefits, the CAO distinguished the Bangs case, stating that the parties' agreement \\\"does not entitle the former spouse to receive a portion of each payment made from the ERS,\\\" but rather a portion of the \\\" 'monthly . benefits [ . ] earned during the marriage.' \\\" Because Mr. Fultz became disabled after the parties' divorce, he reasoned, Ms. Shaffer \\\"is not entitled to any portion of the payments made from the ERS which result solely from his disability.\\\" The CAO further stated that Ms. Shaffer could not commence receiving any portion of the accrued pension benefits prior to Mr. Fultz's then scheduled retirement date; his receipt of disability payments did not entitle her to receive an early distribution of her benefits. Relying upon ERS regulations and restrictions, the CAO then declined to order Mr. Fultz to elect a 100% survivor annuity in her favor, citing \\u00a7 33-44(a)(3), which limits this election to a spouse or child; because the parties were divorced, they were, necessarily, no longer spouses. In an attempt to reconcile what he perceived to be the parties' intent and the ERS's regulations, however, the CAO did state that Ms. Shaffer would \\\"receive her portion of the retirement benefits, in the form of a ten-year certain and continuous annuity, subject to the appropriate actuarial reductions.\\\"\\nAggrieved by the CAO's ruling, Ms. Shaffer appealed the matter to the MSPB. In her memorandum to the MSPB, she challenged, inter alia, the CAO's decision that her benefits were to be valued as of the date of the parties' divorce; the Bangs Formula \\\"applies to the monthly pension benefits to be paid at the time of actual retirement.\\\" She argued that \\\"[t]he formula is not applied to the value of the benefits as of the date of divorce since to do so would deprive the former spouse of any increase in her value of benefits from date of divorce to date of retirement.\\\" Such a deprivation, she maintained, \\\"has a substantial impact on the amount of money . and . the value of the property right she received in the divorce settlement,\\\" and \\\"makes a mockery of the requirement of Maryland law that a former spouse is entitled to a share of the 'marital property' portion of a participant's retirement benefits.\\\" Addressing her bid for a share of Mr. Fultz's disability benefits, Ms. Shaffer began by looking to the \\\"when\\\" in the \\\"if, as and when\\\" language of the Separation Agreement in stating that the parties agreed that- she would share in Mr. Fultz's benefits when he received them; since he began receiving benefits in 1992, she became entitled, under the Separation Agreement to share therein at that time. Drawing upon the Court of Appeals' language in Lookingbill, supra, 301 Md. at 288, 483 A.2d 1, she further predicated her claim to her former husband's disability benefits upon the fact that his entitlement to these payments in the first instance arose by virtue of his employment and, therefore, constituted a form of marital property. Ms. Shaffer then attacked the CAO's provision for a ten-year certain and continuous annuity, stating that her share thereof would only be guaranteed for ten years and the length of Mr. Fultz's life thereafter. The only way her benefits would be protected, she argued, would be by an award of the 100% survivor annuity upon which the parties agreed.\\nThe County filed its own memorandum in Ms. Shaffer's appeal to the MSPB. In it, the County stated that the CAO's decision respecting the pension benefits was \\\"fair, rational, and in accordance with the Separation Agreement,\\\" and reiterated that ERS regulations did not permit Mr. Fultz to purchase the annuity Ms. Shaffer was demanding. It averred that, in using the phrase, \\\"pension and retirement benefits,\\\" in the Separation Agreement, the parties did not \\\"consider[ ] the possibility that [Mr.] Fultz would 'retire' on disability two years after execution of the separation agreement.\\\" Rather, the County reasoned, \\\"it appears that the parties intended to divide those benefits payable when [Mr.] Fultz retired in the normal way, after 20 or 25 years' service.\\\" The County stated further that the parties had adopted the traditional concept of marital property in their agreement and, because Mr. Fultz's disability occurred after the divorce, Ms. Shaffer's lack of entitlement thereto was without question.\\nThe County also rejected Ms. Shaffer's contention that her share of benefits, in accord with the Bangs Formula, should be calculated as of the date Mr. Fultz retired, rather than the date of the divorce, stating that, despite her importuning, such a conclusion \\\"is not supported by the facts, the language of the agreement, the Bangs decision, or elementary considerations of fairness.\\\" It contended that the parties' Separation Agreement was meant to divide the rights, obligations, and property they owned at the time of the divorce and not some later time. In respect to the annuity, the County simply reiterated that Ms. Shaffer's status as a former spouse precluded Mr. Fultz from electing her as a beneficiary of a 100% survivor annuity; the ERS could not be forced to accept such a late designation.\\nThe MSPB rendered its decision on July 25, 1994, affirming the CAO's ruling. In it, the Chairman stated that the CAO was \\\"correct in . conclu[ding] that the disability benefits which Mr. Fultz received approximately two years after the divorce were outside the contemplation of the separation agreement and, thus, outside the benefits which had already vested during the marriage.\\\" He further stated that, despite the Separation Agreement, Ms. Shaffer did not qualify for a survivor annuity under the Montgomery County Code. That is to say, she was not a spouse or child. See \\u00a7 33-44(a)(3). The MSPB concluded that Ms. Shaffer's entitlement to any benefits would mature upon Mr. Fultz's scheduled retirement date, to be calculated by a formula taking into account only \\\"those benefits earned during the marriage and fixed and vested as of the date of the divorce.\\\"\\nThe Consolidated Case\\nA hearing on all matters was thereafter held in the Circuit Court for Montgomery County on November 23, 1994. Mr. Fultz argued that the \\\"pension and retirement benefits\\\" contemplated by the Separation Agreement were those that succeeded completion of \\\"ordinary uninterrupted service\\\" of employment. He distinguished disability retirement payments therefrom, based upon the fact that deductions therefor were not taken from his salary as is generally the case with pension benefits. He further stated that payments stemming from a disability that occurs after a divorce should not be exposed to classification as marital property and, thus, Ms. Shaffer should not participate in the distribution of those benefits at any time. Indeed, he contended, if any kind of retirement benefit had been intended when the parties executed the agreement, they would have expressly provided therefor.\\nMs. Shaffer proffered a converse position, alleging that the parties had indeed intended that \\\"pension and retirement benefits\\\" include disability benefits. She then challenged the finding that, because use of the Bangs Formula would transfer to her money Mr. Fultz had earned following the divorce, her benefits should be determined as of the date of the divorce. She stated that this concern had been addressed in Bangs and, \\\"although the former spouse does in fact get some of the benefit of the post-divorce earnings, . it . is offset by the percentage [resulting from the Bangs Formula] going down.\\\" Furthermore, she argued, the method of calculation advocated by the County to adjust for this anomaly, ie., the determination of her benefits as of the time of divorce, was contrary to \\u2022 the Separation Agreement's provision for payment of a percentage of Mr. Fultz's monthly benefits, and \\\"freez[es] her share\\\" as of 1990. She went on to claim that, once Maryland law permitted the division of pension benefits between former spouses, a procedure otherwise prohibited under ERS regulations, the requirement that the Bangs Formula be used when such a division is effected should be similarly permitted, despite ERS regulations to the contrary. She proffered the same argument against selective application of Maryland law in respect to the 100% survivor annuity, and made a claim for attorney's fees, citing a provision in the Separation Agreement providing for same in the event of a breach of the agreement.\\nWhile the County agreed with Mr. Fultz that the Separation Agreement had not contemplated division of any disability retirement benefits but, rather, encompassed benefits arising solely out of a \\\"customary type of retirement,\\\" it stated that Ms. Shaffer did have a right to receive retirement benefits, a right that would have matured in 1997 or 2002 when, under the Separation Agreement, Mr. Fultz was scheduled to \\\"retire[ ], or be eligible for retirement.\\\" It then added: It \\\"is . rational and very reasonable . to apportion the benefits . as of the time of the divorce . and to fix the benefits that are then going to be paid out and not to take into account future events.\\\" In respect to the annuity, the County looked to the terms of the parties' agreement in arguing that they had specifically provided for a remedy in the event that Mr. Fultz, for whatever reason, failed to elect a 100% survivor annuity in her favor. It is to that provision, the County argued, that Ms. Shaffer must look for recourse.\\nIn an opinion rendered from the bench on November 23, 1994, the court stated, in part:\\n[I]t was obviously the intention of the parties to secure Mrs. Fultz'[s] economic interest that she had in the marital relationship while it existed.\\nOf course, the Court has a limited number of methods in which he can resolve this dispute, but one of them certainly results in essentially the evaporation of her economic interests. That is totally inconsistent with the separation and property settlement agreement executed between the parties. It is also an inappropriate resolution.\\nFortunately, principles of equity do somehow permeate the body of law commonly called family law, and more often than not the Court is really oriented toward reaching a real and practical solution, as opposed to something that is impractical and theoretical.\\nEssentially I guess, what I am about to do is more in line with reformation than anything else, but obviously the type of retirement contemplated is not the reality of this case. What I am going to do is determine that it is appropriate for the Court to carry out the full intention of the parties.\\nWith respect to the rights under the disability retirement that now applies to Mr. Fultz, essentially I am going to translate the retirement participation as recited by the parties to his disability pension, and the same percentage, and it shall be paid in the same fashion, if, as and when.\\nThe court also denied Ms. Shaffer's claim for attorney's fees, finding that Mr. Fultz had a \\\"good faith basis for challenging the position[s] of the competing parties,\\\" and had not acted \\\"willful[ly]\\\" in failing to comply with the Separation Agreement. The court provided a more detailed ruling in its written Order of January 9, 1995. Specifically, it also found Ms. Shaffer to be entitled to the 100% survivor annuity, in addition to the interest in Mr. Fultz's retirement benefits, including those received on account of disability. The court further ordered that Mr. Fultz pay Ms. Shaffer an amount equal to her share of disability benefits received through November 30,1994, totalling approximately $44,000.\\nMr. Fultz, on January 17, 1995, filed a Motion to Alter or Amend Judgment, asserting that \\\"the Court's January [9], 1995 Order effects a division of non-marital property which is not permitted by the Maryland Marital Property Act and its decisional law.\\\" He stated that the intent of the parties \\\"clearly excluded the possibility that [Ms. Shaffer] would receive the windfall benefit which the Court . authorized,\\\" and \\\"that the . contractual language [was] clear and unambiguous and permitted] only the conclusion that pension benefits earned DURING THE MARRIAGE . were to be divided equally between the parties 'if, as, and when' Mr. Fultz reached the specified age(s) and [Ms. Shaffer] chose when to receive her share.\\\" He hinged this argument against permitting Ms. Shaffer to share in his disability payments upon the absence of language in the Separation Agreement that provided for the \\\"speculative possibility\\\" of disability and the fact that no amounts were deducted from his salary to fund same. He again likened his disability payments to those resulting from personal injury or workers' compensation claims and stated, \\\"[I]t is virtually impossible to conclude that either of the parties intended that a post-divorce disability retirement would be subject to equitable division by the Court.\\\" He claimed that, by its Order, the court had, effectively, rewritten the parties' Separation Agreement to provide Ms. Shaffer with a share of benefits for which she had never bargained, whose source was \\\"unmistakably non-marital funds.\\\" He requested, inter alia, that the court vacate its Order and hold a hearing to ascertain the parties' intent when executing the Separation Agreement. Both the County and Ms. Shaffer filed motions in response, which restated their respective positions on the issues.\\nThe circuit court denied Mr. Fultz's motion, following a hearing on May 16, 1995. Mr. Fultz filed the instant appeal from that denial, as well as from the court's January 9, 1995 Order. The County filed its own notice of appeal in the matter.\\nTHE LAW\\nI.\\nThe Disability Retirement Benefits\\n\\\"Marital property\\\" is merely a term created to describe a status of property acquired during marriage, which, however titled, may give rise to potential inequity upon dissolution of marriage. It is this inequity that is corrected by way of a monetary award. See Md.Code (1984, 1991 Repl.Vol., 1995 Supp.), \\u00a7 8-205 of the Family Law Article (FL). Couples seeking to avoid the vagaries attendant upon such an award often enter into agreements whereby these property issues, as well as matters of alimony and child support, are resolved. The right to make these agreements, sometimes termed property settlement agreements, is without question. Schneider v. Schneider, 335 Md. 500, 516, 644 A.2d 510 (1994); Grossman v. Grossman, 234 Md. 139, 145, 198 A.2d 260 (1964); FL \\u00a7 8-101. Indeed, FL \\u00a7 8-105 provides the court with power to enforce the provisions of a settlement agreement; an agreement that has been incorporated, but not merged, into the final decree, may be enforced as a judgment or as an independent contract. FL \\u00a7 8-105(a)(2). In the latter instance, a settlement agreement is subject to general contract law; Feick v. Thrutchley, 322 Md. 111, 114, 586 A.2d 3 (1991) (quoting Goldberg v. Goldberg, 290 Md. 204, 212, 428 A.2d 469 (1981)); Hale v. Hale, 66 Md.App. 228, 231, 503 A.2d 271 (1986); Blum v. Blum, 59 Md.App. 584, 593, 477 A.2d 289 (1984); see also Pumphrey v. Pumphrey, 11 Md.App. 287, 290, 273 A.2d 637 (1971). Particular questions must be resolved by looking first to the particular language of the agreement at issue. Id. If that language is clear as to its meaning, there is no room for construction and it must be presumed that the parties meant what they expressed. Feick, supra, 322 Md. at 114, 586 A.2d 3; General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306 (1985); Bernstein v. Kapneck, 46 Md.App. 231, 244, 417 A.2d 456, aff'd, 290 Md. 452, 430 A.2d 602 (1980); Saggese v. Saggese, 15 Md.App. 378, 388, 290 A.2d 794 (1972); see also John F. Fader, II & Richard J. Gilbert, Maryland Family Law \\u00a7 16.1 (1990). The court may not rewrite the terms of the contract or draw a new one when the terms of the disputed contract are clear and unambiguous, merely to avoid hardship or because one party has become dissatisfied with its provisions. See Canaras, 272 Md. at 350, 322 A.2d 866; Automatic Retailers of Am., Inc. v. Evans Cigarette Serv. Co., 269 Md. 101, 108, 304 A.2d 581 (1973); Kasten, 268 Md. at 329, 301 A.2d 12; Metropolitan Life Ins. Co. v. Promenade Towers Mut. Hous. Corp., 84 Md.App. 702, 718, 581 A.2d 846, aff'd, 324 Md. 588, 597 A.2d 1377 (1990); Stueber v. Arrowhead Farm Estates Ltd. Partnership, 69 Md.App. 775, 780, 519 A.2d 816, cert. denied, 309 Md. 521, 525 A.2d 636 (1987). If, however, a reasonably prudent person would consider the contract susceptible to more than one reasonable interpretation, it will be deemed ambiguous. State v. Attman/Glazer P.B. Co., 323 Md. 592, 605, 594 A.2d 138 (1991); Truck Ins. Exch. v. Marks Rentals, Inc., 288 Md. 428, 433, 418 A.2d 1187 (1980); Promenade Towers, 84 Md.App. at 717, 581 A.2d 846; Board of Educ. v. Plymouth Rubber Co., 82 Md.App. 9, 26-27, 569 A.2d 1288, cert. denied, 320 Md. 505, 578 A.2d 778 (1990). In that case, the parties to a written contract will not be allowed to place their own interpretation on what it means or was intended to mean; the test is what a reasonable person in the position of the parties would have thought that it meant. Satine v. Koier, 223 Md. 417, 420, 164 A.2d 913 (1960); Bernstein, 46 Md.App. at 245, 417 A.2d 456. A contract is not ambiguous merely because the parties thereto cannot agree as to its proper interpretation.\\nTurning to the case sub judice, the parties agreed: \\\"[I]f, as and when the husband retires, or is eligible for retirement, the wife shall receive . one-half of the monthly pension and retirement benefits, specifically including all Cost of Living Adjustments (COLAS) thereon, earned during the marriage, to be calculated\\\" according to the Bangs Formula. (Emphasis added.) Before we may address the issues raised, we must first determine the scope of the benefits upon which the parties agreed. If the phrase, \\\"pension and retirement benefits,\\\" includes those benefits paid on account of disability, Ms. Shaffer was entitled to participate in their disbursement, if, as and when received, i.e., as of February, 1992. Conversely, if the parties intended that \\\"pension and retirement benefits\\\" only encompass those paid following a lengthy period of service, Ms. Shaffer was not entitled to any benefits received by her former husband until such time as he would have been permitted, under \\u00a7 33\\u201443(i)(l), to elect to continue receiving disability payments or to receive accrued vested retirement benefits in lieu thereof. In order to ascribe a more precise description to the benefits, we look to several other cases that have addressed the issue.\\nPension benefits were first considered marital property, to the extent accumulated during marriage, in Deering v. Deering, 292 Md. 115, 128, 437 A.2d 883 (1981). Pension benefits were seen \\\"as an economic resource acquired with the fruits of the wage earner spouse's labors which would otherwise have been utilized by the parties during the marriage to purchase other deferred income assets.\\\" Id. at 124, 437 A.2d 883. While the Deering Court recognized that there existed a \\\"wide variety\\\" of retirement plans, both public and private, contributory and noncontributory, with different vesting rules, it stated that\\n[t]he dominant trend in this area of the law, however, rejects such distinctions between pension benefits when making the threshold determination of whether a retirement plan constitutes marital property and postpones consideration of the possibly contingent nature of such rights until valuing the asset or apportioning the marital property between the parties.\\nId. at 126-27, 437 A.2d 883 (discussing Weir v. Weir, 173 N.J.Super. 130, 413 A.2d 638 (Ch. Div.1980); In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976) (en banc)). Deering involved service-related retirement plans.\\nIn Lookingbill v. Lookingbill, supra, 301 Md. 283, 483 A.2d 1, the Court of Appeals was asked to determine whether a disability retirement plan fell within the holding in Deering. There, the Carroll County Fire Department provided the husband with several pension plans, each available to him under certain circumstances, and two of which had importance to the case. The first, a service retirement plan, was administered according to the employee's age and length of service. The second, an accidental injury retirement plan, permitted \\\"a fireman . [to] receive an allowance regardless of age or length of service,\\\" id. at 284, 483 A.2d 1; the dominant factor was a work-related injury. Shortly before the parties were divorced, the husband retired by reason of a work-related injury and began receiving an allowance therefor. In making a monetary award to the wife, the trial court determined that the husband's pension benefits were marital property and, accordingly, ascribed a value thereto for purposes of the award. In its opinion, the Court of Appeals acknowledged that \\\" 'pension benefits have become an increasingly important part of an employee's compensation package which he or she brings to a marriage unit.... [T]he pension right . may well represent the most valuable asset accumulated by either of the marriage partners.' \\\" Id. at 287, 483 A.2d 1 (quoting Deering, 292 Md. at 122-23, 437 A.2d 883). Echoing its language in Deering, the Court found inapposite the fact that the husband began receiving the disability benefits before his divorce; \\\"neither the fact of vesting nor the fact of maturing is significant to a determination whether a pension is marital property.\\\" Id. at 288, 483 A.2d 1. Indeed, \\\"the contingencies to which the payment of [an] allowance may be subject are [also] not significant to a determination whether the pension is marital property.\\\" Id. at 289, 483 A.2d 1. Viewed in this light, \\\"[p]ension payments are actually partial consideration for past employment whether the maturity of the pension is contingent upon age and service or upon disability.\\\" Id; see also Prince George's County Police Pension Plan v. Burke, 321 Md. 699, 705, 584 A.2d 702 (1991). While \\\"Deering did not speak directly to disability plans,\\\" the Court stated, \\\"its rationale and authorities fully support the conclusion that a disability plan, in appropriate circumstances,[ ] may constitute marital property.\\\" 301 Md. at 289, 483 A.2d 1.\\nOne such set of circumstances was presented in our recent case of Lebac v. Lebac, 109 Md.App. 396, 675 A.2d 131 (1996). There, in connection with their divorce, the parties had executed a separation agreement, which stated, in part:\\n[W]hen and if the [husband] shall be entitled to receive retirement benefits from his U.S. Secret Service employment, the [wife], as alternative payee, as and for marital property, shall receive a sum equal to twenty percent (20%) of any payment received by [the husband] as a result of his employment by the U.S. Secret Service Uniformed Division .\\n109 Md.App. at 399-100, 675 A.2d 131. Thereafter, the husband retired on disability and began receiving monthly payments therefor; the wife received no share of those benefits. Relying upon the agreement, she sought the entry of judgment for her share thereof. In defense, the husband maintained that his disability benefits were in the nature of workers' compensation and, because received following the divorce, were not subject to equitable distribution.\\nWe held that the husband's disability retirement income was a retirement benefit covered by the parties' separation agreement. Although the pension plan under which the husband had retired was a noncontributory one, i.e., it was funded solely by his employer, id. at 406, 675 A.2d 131, we reiterated our observation in Ohm v. Ohm, 49 Md.App. 392, 397, 431 A.2d 1371 (1981) (quoting In re Marriage of Rogers, 45 Or.App. 885, 609 P.2d 877, 880, modified, 47 Or.App. 963, 615 P.2d 412 (1980)), that, \\\" '[e]ven where contributions have been made entirely by the employer, the courts have concluded that retirement benefits are a mode of employee compensation and as such are an earned property right of the marriage.' \\\" We then noted that, although the husband's participation in the pension plan was contingent upon his retirement on disability, contingent interests have long been recognized as property in Maryland. 109 Md.App. at 406, 675 A.2d 131 (citing Lookingbill, supra, 301 Md. at 289, 483 A.2d 1). Because \\\"his disability retirement rights were acquired during his marriage,\\\" id. at 407, 675 A.2d 131, the fact that he was actually disabled after the marriage did not bar the wife from sharing therein. Worthy of particular note is our dictum in Lebac: \\\"[W]e think that no matter how [the husband]'s retirement benefits are characterized, [the wife] is entitled to twenty per cent of them.... [W]hen the parties [executed their agreement], . they were agreeing that no matter how characterized, [the husband]'s retirement benefits are 'marital property,' entitling [the wife] to twenty per cent of them.\\\" Id. n. 11 (bracketed material added).\\nThe parties in the case mb judice agreed that Mr. Fultz's pension and retirement benefits were marital property. We are, thus, guided by that recital and need only determine whether the trial court properly found that Mr. Fultz's disability payments were a retirement benefit within the scope of their agreement.\\nThe cases we have discussed indicate that disability benefits are in fact a type of retirement benefit subject to equitable distribution, whether the pensioner is disabled before or after the parties' divorce. Because the parties to the instant matter agreed that Mr. Fultz's retirement benefits constitute marital property that was to be divided upon receipt, the validity of Ms. Shaffer's claim to his disability benefits is pellucid. Moreover, by their agreement, the parties contractually fixed their rights and obligations attendant to the divorce, and Mr. Fultz may not now challenge its terms merely because he is dissatisfied with its effects and/or his failure to define more precisely those benefits in which Ms. Shaffer would share. The parties placed their own definition upon the anticipated benefits, and they must abide by that definition. However the payments are characterized, the parties' Separation Agreement provided that Ms. Shaffer share in any and all allowances paid to Mr. Fultz on account of his retirement. The trial court did not err in finding Ms. Shaffer was entitled to participate in the disbursement of those benefits. We explain further.\\nThroughout the pendency of this matter, Mr. Fultz argued that, as long as he was receiving a disability allowance, he was not \\\"retired\\\" and Ms. Shaffer was not entitled to participate in any disbursement of benefits. Not only does this position ignore the clear language of the Montgomery County Code, but we also cannot agree that the parties intended that Ms. Shaffer would be completely disenfranchised in the event that Mr. Fultz's retirement arose from anything other than a lengthy period of service. Had that been the case, the parties would have included language in the Separation Agreement duly restricting Ms. Shaffer's right to benefits rendered solely on account of an extended period of service. Moreover, the absence of language specifically excluding disability benefits from the phrase, \\\"pension and retirement benefits,\\\" demonstrates that the parties intended any type of pension and retirement benefit to apply. The contractual language was all-inclusive. By its clear terms, it included any and all pension rights and retirement rights. Therefore, although Mr. Fultz's right to receive disability payments was contingent upon his retirement on disability, it was still a right that, at least partially, accrued during the marriage by virtue of Mr. Fultz's employment in the first instance, and Ms. Shaffer was entitled to share therein.\\nWe note further that Mr. Fultz labored under a fundamental misconception about the import of the ERS regulations. Section 33\\u201443(i)(l) provides that, upon attainment of a member's scheduled retirement date, a member who is receiving a disability pension is required to make an election in favor of continuation of those benefits in lieu of accrued vested benefits, or in favor of commencing receipt of vested benefits and terminating disability benefits. In either instance, the member may only receive one pension. Therefore, to the extent that Mr. Fultz stated that Ms. Shaffer could not share in any of his disability benefits, he was mistaken. Had he not died and were he to have elected to continue receipt of disability payments, Ms. Shaffer would then necessarily have been entitled to receive a share of those benefits, under the terms of the Separation Agreement. Mr. Fultz could not have unilaterally deprived his former wife of her share of his retirement benefits merely by placing his own characterization upon his disability allowances in order to avoid compliance with their agreement. See Lebac, supra, 109 Md.App. at 407, 675 A.2d 131 (The husband's \\\"perception that the separation agreement provided otherwise is of no consequence____ Were we to adopt [his] position, his election of a disability retirement rather than a normal 'service' retirement would leave [the wife] without recourse. We do not believe that such a result was intended.\\\").\\nMr. Fultz also looked to correspondence transmitted between counsel during finalization of the terms of the Separation Agreement to support his claim that disability benefits were not intended to be within the scope of \\\"retirement benefits.\\\" Be that as it may, the parties' final agreement made no such distinction, and we shall not ascribe such an interpretation to it. They agreed that pension and retirement benefits were marital property that would be divided upon receipt. The trial court did not err in so finding. Mr. Fultz's reliance upon the timing of the receipt of his disability pension in opposing Ms. Shaffer's claim thereto was similarly misplaced. He stated that \\\"property acquired after the divorce is non-marital property.\\\" While he was correct in so stating, he overlooked the fact that he agreed otherwise\\u2014he agreed that his pension and retirement benefits were, in fact, marital property. Moreover, to require a disability benefit to mature before divorce for it to be subject to equitable distribution ignores the fact that contingent rights, ie., the possibility of receiving disability benefits, are a property right in Maryland. On this point, we are persuaded by Ms. Shaffer's argument that \\\"[t]he fact that the right to receive the disability benefits matured following the divorce no more defeats [her] right to her share of the disability benefits than does the fact that Mr. Fultz'[s] right to receive normal retirement benefits would have also matured following the divorce.\\\"\\nIn making our decision, we emphasize that it is based upon the parties' agreement. As we have indicated, FL \\u00a7 8-105 provides the court with the power to enforce that agreement. Actions in derogation thereof shall be considered a breach of the terms of the agreement. In Dexter v. Dexter, 105 Md. App. 678, 661 A.2d 171 (1995), we were presented with a similar set of facts. There, we addressed the husband's breach of a settlement agreement, which provided the wife with a specified percentage of her former husband's military pension \\\"as, if, and when\\\" paid to him. 105 Md.App. at 679, 661 A.2d 171. When the husband retired (after the divorce), both he and his former -wife began receiving their respective share of the retirement benefits. Shortly thereafter, the husband voluntarily waived his right to receive those benefits, thereby terminating their disbursement, in order to qualify for greater benefits, based upon disability. By his waiver, however, he had terminated the wife's benefits; she did not receive any share of the disability benefits, based upon a federal statute prohibiting the division thereof to benefit a former spouse. The wife thereafter requested that the trial court reduce to judgment its monetary award based upon the husband's pension and order him to pay her sums in the future based upon the percentage upon which they had agreed.\\nThe trial court, recognizing that the wife was \\\"[b]asically . seeking to enforce the agreement,\\\" id. at 682, 661 A.2d 171, stated, in part:\\nWhat I do see, though, is parties . entering into an agreement in which both of them contemplated . the husband would retire . and the wife would receive 47.5 percent of his retirement pay . and that is what they bargained for, and that is what they intended . I find as a matter of fact that that is what the parties intended.\\n. I think implicit in an agreement is that both parties will take any and all reasonable steps to carry out the intentions of the parties as expressed by this agreement.\\n. I am sure that it isn't fair.... It has the clear effect of depriving the . wife of a substantial portion of the benefits of this agreement....\\n. [I]f a reasonable interpretation can be given . then that interpretation should be given . although the husband had an absolute right to pursue [disability] benefits ., he couldn't do that and at the same time deprive the wife of the benefits that she had bargained for under the agreement.\\nSo what I find is that . the implicit terms of the agreement would require the husband to make the wife whole, and by doing that he would have to pay her the amount that they bargained for in order to not be in breach of the agreement, and he hasn't done that, and so I find that he has breached the agreement....\\nId. at 683-84, 661 A.2d 171 (footnote and emphasis omitted; some brackets and omissions in original).\\nIn affirming the trial court's judgment, we stated that, under the statute, the wife was not entitled to share in the greater disability benefits, but was entitled to receive that which she would have received under the agreement had the husband not waived his right to the military pension. It is particularly cogent that the agreement specifically referred to the division of the husband's \\\"military pension\\\" and no other. It is because the husband had hindered his former wife's right to receive his military pension that we considered him to have breached the agreement and held that,\\nunder Maryland contract law where . the parties enter into an agreement that one spouse will receive a percentage of [specific] pension benefits, on a periodic basis, when they become payable, and when . they are already payable and being paid, the pensioned party may not hinder the ability of the party's spouse to receive the payments she has bargained for.\\nId. at 686, 661 A.2d 171.\\nMr. Fultz claimed that the trial court \\\"ran afoul\\\" of our holding in Dexter and asked us to direct the court to award Ms. Shaffer that for which she bargained, i.e., that amount of vested accrued pension that accumulated during the marriage. Ms. Shaffer finds Dexter inapposite. We are inclined to agree with Ms. Shaffer.\\nAlthough, in effect, Ms. Shaffer is seeking to enforce the agreement, it is an agreement that specifically provides for a division of all retirement benefits, benefits that we have held include disability benefits, unless they are expressly excluded. As we have indicated, the agreement in Dexter specifically provided the wife with a share in her husband's \\\"military pension,\\\" to the apparent exclusion of all others. She had not contracted for a right in any other pension plan, or \\\"in all pension plans available to her former husband. Moreover, in Dexter, there were two separate and distinct pensions at issue\\u2014the military pension arid a pension administered by the Veterans' Administration. In the case sub judice, Mr. Fultz's benefits, service or disability related, emanated from one source\\u2014the ERS. He did not need to reapply to another agency or pension plan to continue receiving benefits. The ERS \\\"constitute^] the only source of [Mr. Fultz]'s retirement income. Therefore, he [was] receiving 'retirement benefits' as a 'result of his employment . ' [as provided for in the agreement]. Consequently, [Ms. Shaffer]'s right to receive [a part] of [his] retirement benefits vested the moment he retired.\\\" See Lebac, supra, 109 Md.App. at 407, 675 A.2d 131 (footnote omitted).\\nWe hold, therefore, that the court properly enforced the agreement to provide Ms. Shaffer with a share in the disability benefits. The court also properly calculated the amount of the award. Accordingly, we shall therefore affirm that part of the trial court's January 9,1995 Order.\\nII.\\nThe 100% Joint and Survivor Annuity\\nThe County appeals from that portion of the trial court's ruling that ordered Mr. Fultz to elect a 100% joint and survivor annuity in favor of Ms. Shaffer. Because of Mr. Fultz's untimely death, this issue may be of significance in the distribution of his estate. If the trial court erred in ordering that the election in Ms. Shaffer's favor be made, Mr. Fultz's designation of his widow and two children stands. Otherwise, Ms. Shaffer receives the amount of the survivor benefits to the exclusion of Mrs. Fultz.\\nThe County maintains that Ms. Shaffer is not now, and has not been since February 21, 1990, eligible for designation as a joint and survivor beneficiary. Section 33^44 provides for elections in favor of spouses and children, see \\u00a7 33-44(a)(3), but not former spouses, the County claims. Ms. Shaffer argues that \\\"[t]he County's position is inconsistent and not supported by any reasonable interpretation of applicable law.\\\" She states that, despite a provision in the ERS regulations prohibiting payment to a former spouse of a share of an employee-member's retirement benefits, such payments are made. By the same token, she continues, the ERS should permit election of annuities and payment thereof to former spouses.\\nIt has been said that \\\"the right to a survivor annuity is incident to the marital relationship, and . such a right, analogous to the right to the pension benefits themselves, falls within the definition of marital property contained in Deering v. Deering, supra, 292 Md. at 125, 437 A.2d 883.\\\" Pleasant v. Pleasant, 97 Md.App. 711, 725, 632 A.2d 202 (1993). We went on to state in Pleasant that the decision to award a survivor annuity to a former spouse lies within the discretion of the trial court. Id. That case, however, involved a judicial award of retirement benefits, rather than an award pursuant to a settlement agreement. FL \\u00a7 8-105 provides the court with the power to enforce a settlement agreement as an independent contract. Therefore, whatever the validity of Ms. Shaffer's argument in this respect, whenever the parties define the limits of their rights and obligations in a contract, the contract controls, and no discretion is lodged in the court to weigh and apply the equities in conflict with such an agreement. Hospital for the Women of Maryland ex rel. Robert S. Green, Inc. v. United States Fidelity & Guar. Co., 177 Md. 615, 623, 11 A.2d 457 (1940).\\nUnder the terms of the Separation Agreement, the parties provided a remedy in the event that Mr. Fultz failed to make the designation. They agreed that \\\"his estate shall be liable to the wife for the full amount of [Mr. FultzJ's death benefits to which she would be entitled.\\\" Ms. Shaffer may not use the Separation Agreement as a sword to obtain a share of Mr. Fultz's disability benefits and as a shield to avoid application of the remedy upon which the parties agreed. As was the case with Mr. Fultz, Ms. Shaffer's dissatisfaction with her contractual decision to accept the alternate remedy is not a basis upon which to ignore it. The trial court erred in failing to rule that Ms. Shaffer's only recourse lay with the Separation Agreement. Moreover, with Mr. Fultz's death, he cannot be ordered to do anything. Events have curtailed the ability of the court to impose orders on Mr. Fultz. Of necessity, Ms. Shaffer must look to the Separation Agreement for relief, if any.\\nWe caution that our holding is limited to circumstances in which an agreement establishing the parties' rights and obligations attendant to their divorce has been executed. We make no comment upon the effect of a noncontract-based judicial award to an individual of his or her former spouse's retirement benefits.\\nJUDGMENT AS TO DISABILITY BENEFITS AFFIRMED; JUDGMENT AS TO ANNUITY REVERSED; COSTS TO BE PAID ONE-HALF BY APPELLANT FULTZ AND ONE-HALF BY APPELLEE.\\n. All statutory citations shall hereinafter refer to Article III, chapter 33 of the Montgomery County Code (1994), unless otherwise indicated.\\n. Under the Montgomery County Code, Mr. Fultz became eligible to receive, until the date of his retirement, disability benefits in the amount of a fixed .percentage of his annual salary at the time of the disabling event. \\u00a7 33-43(h)(l).\\n. The County Attorney and Ms. Shaffer's attorney had discussed the matter as early as 1991, when Mr. Fultz was first disabled and had applied for disability retirement.\\n. The Chief Administrative Officer of the Montgomery County ERS is responsible for the administration of the retirement system and the interpretation of all provisions of th\\u00e9 retirement regulations, as set forth in the Montgomery County Code, including the computation of benefits. \\u00a7 33~47(c)-(d); see also \\u00a7 33-56(a).\\n. Under the ERS, Mr. Fultz was first eligible for retirement after twenty years of service, in 1997; this is termed his \\\"early retirement date.\\\" \\u00a7 33-38(e). The year 2002 signaled his \\\"normal retirement date,\\\" after twenty-five years of service. \\u00a7 33-38(a).\\n. But for his death, Mr. Fultz would have continued to receive disability benefits until the date upon which he otherwise would have been eligible to retire, at which time, he would have been required to elect to begin receiving pension benefits in lieu of disability benefits, or continue receiving disability benefits; he could not have received both. \\u00a7 33-43(i)(l).\\n. Bangs v. Bangs, 59 Md.App. 350, 475 A.2d 1214 (1984). There, we held that a formulaic calculation of an individual's share of his or her former spouse's future pension or retirement benefits, to the extent accrued during the marriage, if, as, and when paid to the pensioner, based upon a fraction/multiplier derived from the total years of marriage over the total years of credited employment, was a permissible manner in which to determine the fixed percentage of the future retirement benefits to be paid to the nonpensioner when benefits are paid to the employee. The Bangs Formula, as it has come to be known,\\nis to be used in situations in which, at the time of the divorce, the employee-spouse has been employed for a period of time greater than the length of the marriage and thus, a portion of the pension was earned outside of the marriage. In this respect, the fraction is used to determine the marital portion of the benefits.\\nHoffman v. Hoffman, 93 Md.App. 704, 719, 614 A.2d 988 (1992).\\n. Ms. Shaffer also filed a Motion to Enforce the parties' Separation Agreement, on February 8, 19.94, challenging the interpretation given to the Separation Agreement by both the County and her former husband.\\n. The CAO also noted that, under the ERS, Mr. Fultz's disability benefits were being reduced to reflect the amount of vested accrued benefits payable to Ms. Shaffer.\\n. It is not clear whether Ms. Shaffer filed an appeal from the MSPB's decision.\\n. In so doing, we do not address those cases that involve retirement plans administered under the Employee Retirement Security Act (ERISA), 29 U.S.C. \\u00a7 1001 et seq., which \\\"expressly preempts state law and comprehensively regulates all aspects of private pension plans.\\\" Deering v. Deering, 292 Md. 115, 125-26 n. 8, 437 A.2d 883 (1981).\\n. The County remained appellant's employer throughout the pertinent period of time. Accordingly, we do not here address a situation in which the employer, at the time of an employee's disablement, is different from the employer during the marriage. The resolution of that situation will have to await an appropriate case.\"}"
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+"{\"id\": \"4426175\", \"name\": \"James Lousean GOLDRING v. STATE of Maryland\", \"name_abbreviation\": \"Goldring v. State\", \"decision_date\": \"1995-03-03\", \"docket_number\": \"No. 877\", \"first_page\": \"728\", \"last_page\": \"739\", \"citations\": \"103 Md. App. 728\", \"volume\": \"103\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:50:48.937867+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Lousean GOLDRING v. STATE of Maryland.\", \"head_matter\": \"654 A.2d 939\\nJames Lousean GOLDRING v. STATE of Maryland.\\nNo. 877,\\nSept. Term, 1994.\\nCourt of Special Appeals of Maryland.\\nMarch 3, 1995.\\nRalph Larry Warren, Capitol Heights, for appellant.\\nDiane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Walter B. Dorsey, State\\u2019s Atty. for St. Mary\\u2019s County of Leonardtown, on the brief), for appellee.\\nSubmitted before MOYLAN, DAVIS and SALMON, JJ.\", \"word_count\": \"3526\", \"char_count\": \"21229\", \"text\": \"SALMON, Judge.\\nThis case arises from a drag race during which two bystanders and one of the participants were killed. The surviving participant, appellant James L. Goldring, was charged with three counts of involuntary manslaughter by motor vehicle under Md.Code (1957,1992 Repl.Vol.), Art. 27, \\u00a7 388. He was convicted by a jury in the Circuit Court for St. Mary's County (Kaminetz, J., presiding) on all three counts. The court sentenced appellant to a total of sixteen and one-half years imprisonment.\\nI. Whether there was sufficient evidence to support appellant's convictions for the deaths of the two bystanders.\\nII. Whether a participant in a drag race can be held criminally responsible for the death of his co-participant.\\nFACTS\\nAccording to the testimony adduced at trial, appellant and Robert K. Hall spent much of the day on April 25, 1993 drag racing their cars against various competitors at the Maryland International Raceway (MIR) in St. Mary's County. Appellant and Hall had planned to race against each other at MIR, but it closed before they had the opportunity to do so. Consequently, appellant and Hall agreed to race on the street.\\nIn preparation for the race, a distance of a quarter mile was marked off on Sunny Side Road, a two lane macadam country road that measures 20 feet in width and is bordered by wheat fields. A flag man was appointed, and between 50 and 75 persons gathered to watch the race. The State's accident reconstructionist explained the tragic details of what occurred:\\nA prearranged race was made between Mr. Goldring and Mr. Hall. They all ended up at Pincushion Road and Sunny Side Road at the speed limit sign. That area is posted 45 miles per hour. From there a flagman gave them the go and they proceeded, Mr. Goldring in which would be the right lane and Mr. Hall in the left lane or the wrong side of the road. They proceeded on toward Route Five, at which\\u2014at one point Mr. Hall come [sic] across the lane markings and struck the side of Mr. Goldring's vehicle. Mr. Goldring continued to proceed towards Route Five. Mr. Hall, not having control of his vehicle, went into his critical curve, scuffing, went into the ditch on the side, hit the embankment, went airborne in a counter clockwise fashion. While he was rolling counter clockwise he had\\u2014he struck the parked Chevrolet pickup truck, the pickup truck spun clockwise and out into the road, Sunny Side Road. The [Hall] vehicle hit the dirt road, still spinning counter clockwise with a lot of force, struck the Blazer as it was coming back off the ground, with the left front bumper which caused the Blazer to flip over and come to final rest on its top. The [Hall] vehicle came to a final rest on its top and during the course of these collisions several pedestrians were struck.\\nHall was killed instantaneously. Thirteen year old spectator James Young, Jr. died when the Blazer, which had been hit by Hall's car, rolled onto Young and crushed his head. Antonio Carter, a passenger on a motorcycle that had been waved off the road prior to the start of the race, was also killed when a vehicle rolled onto him.\\nI.\\nArt. 27, \\u00a7 388 provides that \\\"[E]very person causing the death of another as the result of the driving, operation or control of an automobile . in a grossly negligent manner,\\\" shall be guilty of a misdemeanor to be known as \\\"manslaughter by automobile .\\\" We recently held that any driver participating in a drag race may be convicted under Art. 27, \\u00a7 388 for the death of a third party, \\\"regardless of which driver actually collided with the victim or the victim's vehicle____\\\" Pineta v. State, 98 Md.App. 614, 625, 634 A.2d 982 (1993).\\nIn Pineta, the defendant and one Jaime Chicas engaged in a \\\"drag race\\\" on northbound Georgia Avenue, in Montgomery County. Id. at 619, 634 A.2d 982. During the race, the vehicle operated by Chicas struck a third vehicle as it was making a left turn from southbound Georgia Avenue into a restaurant driveway. Id. Both occupants in the third vehicle were killed. Id. In concluding that the evidence was sufficient to support the defendant's convictions for vehicular manslaughter, we stated that\\nthe jury could have rationally found that appellant agreed to engage in a \\\"drag race\\\" with Chicas at speeds of at least 70 miles per hour on Georgia Avenue and that the victims' deaths were the direct consequence of gross negligence on the part of both appellant and Chicas. By engaging in the illegal speed contest, appellant aided and abetted the criminal conduct of Chicas and appellant's actions were the proximate cause of the victims' deaths.\\nId. at 626, 634 A.2d 982.\\nDrawing factual distinctions between Pineta and the case at hand, appellant submits that there was insufficient evidence of gross negligence in the instant case to support his convictions for the deaths of the two spectators. In his brief, appellant points out that both cars had undergone a safety check at MIR, that the race occurred on a pre-measured stretch of country road, and that there were \\\"members of the community attending the race, who, like the racers, did not think that their participation demonstrated a wanton and reckless disregard of their own lives.\\\"\\nWe are mindful that, in deciding the sufficiency of the evidence issue, we must review the evidence in the light most favorable to the State and determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Pendergast v. State, 99 Md.App. 141, 148, 636 A.2d 18 (1994) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Thus, in this case, we must determine whether there was sufficient evidence \\\"beyond a reasonable doubt to establish that the defendant was grossly negligent, that is, that he had a wanton or reckless disregard for human life in the operation of an automobile.\\\" State v. Kramer, 318 Md. 576, 590, 569 A.2d 674 (1990).\\nThe evidence presented at trial shows that appellant and Hall reached speeds of over 100 miles per hour while illegally drag racing on a country road that had a posted speed limit of 45 miles per hour. The portion of the two-lane road on which the race took place had no shoulder, was bordered by ditches on both sides, and contained a curve just a few hundred feet from the start. Further testimony established that both of the racing vehicles had been altered to accommodate the goal of maximum speed. The following testimony was offered regarding appellant's vehicle:\\nThe floor boards were actually rusted with holes exposed through the floorboards. There was no passenger's seat, no rear seat. The speedometer was inoperative, the cable had been disconnected. There was racing slicks on the rear, the front tires were regular tires like you would put out on a normal car, smaller, and they appeared to have some signs of dry rotting around the outside edges of them. Most of the lighting equipment was inoperative on the vehicle. Basically it had been stripped down, made as light as it could to go as fast as it could for racing.\\nDeputy William Cease testified that appellant's vehicle was not registered in Maryland, Virginia, or the District of Columbia, and that, due to its condition, could not be legally registered to be driven on public roadways.\\nThe testimony concerning the significant safety precautions taken during the drag races held at MIR served to highlight further the extreme danger involved in drag racing on a public road. Royce Miller, the racing promoter at MIR, testified that the track surface at MIR is coated with \\\"adhesive enhancing sprays\\\" that help to prevent the cars from spinning and losing control. In addition, the spectators at MIR sit behind a spectator fence that \\\"is protected by a concrete barrier down both sides of the racetrack.\\\"\\nWe hold that there was ample evidence to support a rational finding that appellant's decision to compete in a drag race on Sunny Side Road constituted grossly negligent conduct. In addition, we find no merit to appellant's argument that there was insufficient evidence to show that appellant caused or \\\"aided and abetted\\\" the involuntary manslaughter of the two spectators. Although we acknowledge that it was Hall's vehicle that went out of control, we have emphasized that it was appellant's conduct in competing in the race that constituted gross negligence. As in Pineta, it is clear that the jury could have rationally concluded that the deaths of the spectators were caused by the joint gross negligence of Hall and appellant in agreeing to engage in the race.\\nII.\\nThe question of whether a participant in a drag race can be held criminally liable under Art. 27, \\u00a7 388 for the death of his co-participant is one of first impression in Maryland. Appellant, citing cases from other jurisdictions, that hold that the requisite causation element is lacking, submits that our holding in Pineta should not be extended to the situation in which a co-participant is killed.\\nWe recognize that, in similar factual situations, courts in other jurisdictions have held that the decedent participant's own grossly negligent conduct breaches the line of causation necessary to hold the surviving participant criminally liable. In Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961), the Supreme Court of Pennsylvania held that \\\"the defendant's conduct was not a sufficiently direct cause of the competing driver's death to make him criminally responsible therefor.\\\" Id., 170 A.2d at 314. The Court noted that it was the reckless conduct of the deceased driver in suddenly swerving into oncoming traffic that brought about the deceased's head-on collision with the other vehicle. Id. Emphasizing that it would not apply tort concepts of proximate cause to criminal homicide cases, the Pennsylvania Court concluded that the link between the defendant driver's conduct and his competitor's death was too tenuous to charge the surviving participant with involuntary manslaughter:\\nTo persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of civil liability of defendants in tort actions for negligence would be to extend possible criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of resultant death.\\nId., 170 A.2d at 311.\\nOther courts have followed the Root analysis. In State v. Petersen, 270 Or. 166, 526 P.2d 1008 (1974), the Oregon intermediate appellate court had affirmed the drag race participant's conviction for manslaughter in the death of the passenger who was riding in the co-participant's vehicle. Adopting the dissent from the intermediate appellate court opinion, the Supreme Court of Oregon reversed, emphasizing that criminal liability \\\"should not be interpreted to extend to those cases in which the victim is a knowing and voluntary participant in the course of reckless conduct.\\\" Id., 526 P.2d at 1009. Likewise, Florida has also followed this approach:\\n[A] driver participant in an illegal \\\"drag race\\\" on a public road cannot be held criminally responsible for the death of another participant when (a) the deceased, in effect, kills himself by his own reckless driving during the race, and (b) the sole basis for attaching criminal liability for his death is the defendant's participation in the drag race, [footnote omitted]\\nVelazquez v. State, 561 So.2d 347, 351 (Fla.Dist. 3 Ct.App. 1990), review denied, 570 So.2d 1306 (Fla.1990).\\nIn State v. McFadden, 320 N.W.2d 608 (Iowa 1982), the Supreme Court of Iowa rejected the above approach, thus affirming the race participant's conviction for manslaughter in the death of his competitor. In that case, McFadden's competitor lost control of his vehicle during the course of a drag race on a city street in Des Moines, Iowa. The vehicle swerved into oncoming traffic and struck another vehicle, killing the passenger in that vehicle as well as McFadden's competitor.\\nThe McFadden Court refused to apply the \\\"direct causal connection\\\" analysis emphasized in Root, and noted that there was no conceivable policy reason that justified \\\"a different standard of proximate causation under our involuntary manslaughter statute than under our tort law.\\\" Id., 320 N.W.2d at 613. The Court reasoned that \\\"the foreseeability requirement, coupled with the requirement of recklessness . will prevent the possibility of harsh or unjust results in involuntary manslaughter cases.\\\" Id.\\nWe note that, like the Pennsylvania Court in Root, the Court of Appeals of Maryland has recognized, in the context of the felony-murder doctrine, that tort liability concepts of proximate cause are not applicable in criminal proceedings. Campbell v. State, 293 Md. 438, 451, 444 A.2d 1034 (1982); see also Sheppard v. State, 312 Md. 118, 123 n. 3, 538 A.2d 773 (1988). In Campbell, the Court of Appeals held that where a fleeing co-felon is killed by either a police officer or a victim, the surviving felon is not guilty of felony murder. Id. at 452, 444 A.2d 1034. The Court reasoned that extending the felony murder to situations where co-felons are killed by non-felons would not achieve the rule's basic purpose:\\nManifestly, the purpose of deterring felons from killing by holding them strictly responsible for killings they or their co-felons commit is not effectuated by punishing them for killings committed by persons not acting in furtherance of the felony.\\nId. at 450, 444 A.2d 1034, accord Poole v. State, 295 Md. 167, 174, 453 A.2d 1218 (1983).\\nAlthough the Court in Campbell stated its general disapproval of the application of tort concepts of proximate cause to criminal cases, it recognized that proximate cause principles had been \\\"appropriately used to extend the application of the felony-murder doctrine in the so called 'shield' cases.\\\" 293 Md. at 451 n. 3, 444 A.2d 1034 (citing Jackson v. State, 286 Md. 430, 408 A.2d 711 (1980)). The Campbell Court emphasized that where a felon uses a victim as a shield, or compels a victim to occupy a place or position of danger, the felon has committed a direct lethal act against the victim. Id. Thus, it is this act that creates a \\\"sufficiently close and direct causal connection to impose criminal liability on a felon when the victim is killed by a non-felon.\\\" Id.\\nIn the context of an involuntary manslaughter case, the Court of Appeals has said the following:\\nIt is not essential to the existence of a causal relationship that the ultimate harm which has resulted was foreseen or intended by the actor. It is sufficient that the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant To constitute the cause of the harm, it is not necessary that the defendant's act be the sole reason for the realization of the harm which has been sustained by the victim. The defendant does not cease to be responsible for his otherwise criminal conduct because there were other conditions that contributed to the same result.\\nPalmer v. State, 223 Md. 341, 353, 164 A.2d 467 (1960) (quoting 1 Wharton, Criminal Law and Procedure (Anderson, \\u00a7 68)); see also Mills v. State, 13 Md.App. 196, 200, 282 A.2d 147 (1971) (recognizing that \\\"a causal connection between gross negligence and death must exist to support a conviction, although it is not essential that the ultimate harm which resulted was foreseen or intended\\\").\\nApplying the above principles to the facts in the case at hand, we hold that appellant's conduct in competing in the drag race bore a sufficiently direct causal connection to Hall's death to support appellant's conviction for involuntary manslaughter under Art. 27, \\u00a7 388. We are not willing to hold that appellant's conduct was causally related to the deaths of the spectator victims but was not causally related to that of Hall.\\nIn Minor v. State, 326 Md. 436, 605 A.2d 138 (1992), defendant was convicted of reckless endangerment after he handed his brother a loaded shotgun, and his brother fatally shot himself. The Court of Appeals upheld defendant's conviction for reckless endangerment. Id. at 444, 605 A.2d 138. We note that, in the case sub judice, the causation element is different because with the crime of reckless endangerment, \\\"[i]t is the reckless conduct and not the harm caused by the conduct, if any, which the statute was intended to criminalize.\\\" Id. at 442, 605 A.2d 138. Nonetheless, to the extent that Minor stands for the proposition that the decedent's own reckless conduct does not relieve the participating defendant of criminal responsibility for his reckless conduct, it has influenced our holding in this case.\\nOn those same lines, in Commonwealth v. Atencio, 345 Mass. 627, 189 N.E.2d 223 (1963), the Supreme Judicial Court of Massachusetts upheld the defendant's conviction for manslaughter arising out of his participation in Russian Roulette game. We find the following reasoning from the Court's opinion to be persuasive:\\nIt is an oversimplification to contend that each participated in something that only one could do at a time. There could be found to be a mutual encouragement in a joint enterprise. In the abstract, there may have been no duty on the defendants to prevent the deceased from playing. But there was a duty on their part not to cooperate or join him in the \\\"game.\\\"\\nId., 189 N.E.2d at 225.\\nAlthough we have acknowledged that it was Hall that lost control of his vehicle and ultimately contributed to his own death, the extremely dangerous conditions under which this race was undertaken cannot be overstated. As we stressed in Part I of this opinion, both vehicles had been significantly altered for drag racing on licensed race tracks and were thus ill-equipped to operate safely on a country road at speeds of over 100 miles per hour. Moreover, the racing promoter testified that, in order to preserve safety, one racing lane at MIR is wider than a typical two-lane highway. The accident reconstructionist noted that the lane in which Hall was driving measured only nine feet, seven inches in width, and appellant's lane, ten feet, seven inches wide. In short, we conclude that it was these treacherous conditions, under which both Hall and appellant agreed to race, that foreordained the fatal results that followed.\\nJUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.\\n. On Count III, appellant was sentenced to ten years imprisonment. Defendant was sentenced on Count II to ten years, suspend all but five years, consecutive with the sentence imposed in Count III. Counts II and III charged appellant with the death of two bystanders. Count III charged appellant with the death of his co-participant in the drag race, and on this count appellant was sentenced to five years, suspend all but eighteen months; sentence as to Count I to run concurrent with sentences imposed in Counts II and III. Although a portion of the sentence was suspended, the trial judge imposed no probation. Therefore, the effective sentence was 16 years and six months. State v. Wooten, 27 Md.App. 434, 442, 340 A.2d 308 (1975), aff'd, 277 Md. 114, 352 A.2d 829 (1976).\\n. Appellee argues that this issue has not been preserved for our review. Although it is undisputed that defense counsel addressed the issue of causation as to all three counts in his motion for judgment of acquittal, appellee argues that appellant's failure to distinguish the counts relating to the deaths of the spectators from the count relating to the death of Hall renders this issue unpreserved. We conclude that inasmuch as appellant specifically focused on the causation element, and is now arguing that issue on appeal, the sufficiency of the evidence issue was preserved for our review. See Shand and Bailey v. State, 103 Md.App. 465, 487-488, 653 A.2d 1000 (1995).\\n. Other cases holding that the defendant cannot be held criminally liable for the death of his racing competitor include State v. Uhler, 61 Ohio Misc. 37, 15 O.O.3d 457, 402 N.E.2d 556 (1979) (holding that the better view is \\\"to not impose criminal liability . on the survivor of a drag race whose only contribution to the death of the other participant was his own participation in the race\\\"), and Thacker v. State, 103 Ga.App. 36, 117 S.E.2d 913 (1961) (dismissing indictment of surviving racer because it failed to allege any act on the part of the defendant, save his own participation in the race, that contributed to the loss or control of the vehicle driven by the deceased).\\n. Other states have held similarly. State v. Escobar, 30 Wash.App. 131, 633 P.2d 100, 104 (1981) (applying Washington's negligent homicide statute, requiring \\\"proximate\\\" causation between reckless driving and the death of \\\"any\\\" person); State v. Melcher, 15 Ariz.App. 157, 487 P.2d 3 (1971).\"}"
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+"{\"id\": \"4449710\", \"name\": \"Donald C. WATSON v. Christine E. WATSON (Helfenbein)\", \"name_abbreviation\": \"Watson v. Watson\", \"decision_date\": \"1989-01-06\", \"docket_number\": \"No. 507\", \"first_page\": \"622\", \"last_page\": \"639\", \"citations\": \"77 Md. App. 622\", \"volume\": \"77\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:36:29.670747+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Donald C. WATSON v. Christine E. WATSON (Helfenbein).\", \"head_matter\": \"551 A.2d 505\\nDonald C. WATSON v. Christine E. WATSON (Helfenbein).\\nNo. 507,\\nSept. Term, 1988.\\nCourt of Special Appeals of Maryland.\\nJan. 6, 1989.\\nDavid P. Sutton, Washington, D.C. (Jerome J. Stanbury, Lanham, on the brief), for appellant.\\nJohn J. Yannone (Eugene M. Zoglio, on the brief), Bowie, for appellee.\\nArgued before BLOOM, ROSALYN B. BELL and FISCHER, JJ.\", \"word_count\": \"4880\", \"char_count\": \"28725\", \"text\": \"BLOOM, Judge.\\nMaryland's Property Disposition in Divorce and Annulment Act (Act), Subtitle 2 of Title 8 of Maryland Family Law Code Annotated (1984), was originally adopted as \\u00a7 3-6A-01 through 3-6A-08 of the Judicial Proceedings Article of the Code in 1978. The Act became effective as of January 1, 1979. As this case demonstrates, after ten years of litigation arising under the Act, confusion still reigns as to the nature of and distinction between \\\"marital\\\" and \\\"nonmarital\\\" property within the meaning of the statute, and whether an interspousal transfer of property will convert nonmarital property into marital property.\\nSection 8-201 defines various terms as used in Subtitle 2. Subsection (e) defines \\\"marital property\\\" as follows:\\n(e) Marital property.\\u2014(1) \\\"Marital property\\\" means the property, however titled, acquired by 1 or both parties during the marriage.\\n(2) \\\"Marital property\\\" does not include property:\\n(i) acquired before the marriage;\\n(ii) acquired by inheritance or gift from a third party;\\n(iii) excluded by valid agreement; or\\n(iv) directly traceable to any of these sources.\\nThis definition is made significant by section 8-205(a), which provides, in pertinent part:\\n(a) Grant of award.\\u2014After the court determines which property is marital property, and the value of the marital property, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.\\nBefore determining the amount and method of payment of a monetary award, if it intends to grant one, the court is required by \\u00a7 8-205(a) to consider each of ten enumerated factors, two of which include \\\"the contributions, monetary and non-monetary, of each party to the well being of the family\\\" and \\\"how and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property.\\\"\\nWith those statutory provisions in mind, we turn to the facts of this case.\\nDonald A. Watson, appellant, and Christine E. Watson (now Helfenbein), appellee, were married in September 1967. In November 1971, the parties purchased a house in Hyattsville, Maryland, titled it in both names as tenants by the entirety, and used it as their marital residence. During the next eight years the Hyattsville house gradually became too small for the parties' family which, by 1979, had grown to include five children. In order to acquire sufficient funds to purchase a much needed larger home, appel lant asked his mother for an advancement against his eventual inheritance from her. Complying with that request, appellant's mother gave him a power of attorney to sell certain property she owned. From the sale of that property, appellant received $40,000, which he deposited into a savings account, subject to the order of either Mr. or Mrs. Watson. Thereafter, the parties sold their Hyattsville house and deposited into the same joint account the net proceeds therefrom. In November 1979, Mr. and Mrs. Watson purchased a new home in Bowie, Maryland, titling it in both names as tenants by the entirety. The new marital residence was bought, for approximately $95,000. What was left of the money in the joint savings account, after the parties had paid some joint debts therefrom, went toward the purchase price of the new house, closing costs, and new furnishings. A substantial portion of the purchase price was secured by a first mortgage, the monthly payments on which were made from funds subsequently acquired by the parties and deposited in their joint bank account.\\nEventually, the parties began to experience marital difficulties. They separated in May 1982, and on January 20, 1983, an absolute divorce was granted to the wife. As part of the judgment of divorce, the court awarded appellee the use and possession of the Bowie house and the family use personal property for a period of three years, reserving for later disposition any disputes relating to the sale of the marital home and to any grant of a monetary award. In March 1985, appellee voluntarily left the Bowie house, and appellant moved in. Appellee then sought determination of the ownership of personal property and real property under what is now \\u00a7 8-202 of the Family Law Article (formerly \\u00a7 3-6A-03 and 3-6A-04 of the Courts Article), specifically praying to have the use and possession order terminated, a sale in lieu of partition ordered, and an award of half the net sale proceeds of the house. Pursuant to appellee's petition, an evidentiary hearing was held before the Master for Domestic Relation Causes, Prince George's County, on the basis of which the master, in a report dated 4 September 1985, recommended, inter alia, that appellant receive a $40,000 credit representing his nonmarital contribution toward the purchase of the Bowie house. Appellee took exceptions to the master's report, which the circuit court, after a hearing, overruled. Appellee then obtained a review of that ruling by an en banc panel of the court. Md. Rule 2-551. The en banc court, by written opinion and order, reversed, holding that appellant had made a gift of the $40,000 to appellee, and remanded the case to the master for specific findings of fact relating to the nature of the parties' joint bank account and transactions made therefrom.\\nFollowing that remand, the master, in a supplemental report, recommended:\\n1) that the Bowie house be sold in lieu of partition;\\n2) that each party receive one-half of the net sale proceeds as titling the house as tenants by the entirety, coupled with appellant's gift intent, gave appellee an undivided one-half interest in the property;\\n3) that there was no nonmarital property to be addressed; and\\n4) that appellant was not entitled to a monetary award.\\nAppellant's exceptions to the master's supplemental report were overruled, and the circuit court entered an order in accordance with the above recommendations. Mr. Watson has appealed from that order. The sole issue he raises is:\\nWhether the circuit court erroneously concluded that appellant made a gift of an undivided one-half interest in the Bowie house by virtue of titling the property as tenants by the entirety.\\nAppellant contends that the $40,000 received from his mother was an advancement on his inheritance and was a gift to him alone and not, therefore, marital property. He asserts that because the Bowie house was acquired by an expenditure of both nonmarital and marital property\\u2014the $40,000 gift to husband alone and some of the sale proceeds from the Hyattsville house\\u2014the residence should have been characterized as part nonmarital property and part marital property. He concludes that under the decision of the Court of Appeals in Grant v. Zich, 300 Md. 256, 477 A.2d 1163 (1984), that portion of the marital residence directly traceable to his $40,000 nonmarital contribution, being non-marital property, is not subject to equitable distribution. Appellee, on the other hand, contends that the Bowie house must be characterized wholly as marital property. She concedes that the $40,000 was a gift to appellant alone, that the Bowie house was purchased in part with funds directly traceable to that $40,000 gift, and that the presumption of gift doctrine does not arise by virtue of titling property as tenants by the entirety. She contends, nevertheless, that appellant's testimony shows that he had the requisite donative intent to make a valid gift to her without regard to any gift presumption. Appellee concludes that her husband had made a gift to her of one-half of the Bowie house and that it was, therefore, marital property owned in equal shares.\\nBased on its interpretation of the decision of the Court of Appeals in Dorsey v. Dorsey, 302 Md. 312, 487 A.2d 1181 (1985), the en banc court, in remanding the case to the master to make a supplemental report, stated:\\nIt is clear that the Court of Appeals has abrogated the common law presumption of gift created by the titling of property. It is equally clear that the Court of Appeals nor the Marital Property Act did not and has not created a contrary presumption____\\nThe chancellor, in turn, based upon the findings set out in the master's supplemental report, stated that:\\n[T]he act of titling, under the circumstances, set forth in the testimony, constitutes a clear intent on the part of the Defendant to make a gift of an undivided one-half (V2) interest in the property to the Plaintiff and therefore, there is no nonmarital property to be addressed by this court.\\nBoth the en banc court and the chancellor were wrong.\\nDorsey followed Grant v. Zich, supra, in which, contrary to the en banc court's belief, the Court of Appeals observed and reconfirmed that \\\"under the common law of Maryland, when a spouse titles property as tenants by the entirety, a presumption of gift arises and upon dissolution of the marriage, one-half of the property constitutes the donee spouse's separate property.\\\" The gift is one of a present legal interest in the property. The fact that one tenant by the entirety cannot unilaterally sever the tenancy because it is per tout et non per my does not make the transaction any less of a gift of a present property interest than if the donor spouse had caused the property to be titled in both names as joint tenants or tenants in common. Once the gift is complete, ordinarily the donee spouse has a vested interest in the property that cannot be divested. A divorce court cannot later take away the legal interest that had been given earlier, on the theory that the property remains \\\"nonmarital,\\\" because to do so would violate \\u00a7 8-202(a)(3), which expressly forbids the divorce court to \\\"transfer the ownership of personal or real property from one party to the other.\\\" See, Nisos v. Nisos, 60 Md.App. 368, 380-81, 483 A.2d 97 (1984).\\nIn this case, both parties, as well as the master, the chancellor, and the en banc court, appear to have gone astray by confusing the concepts of marital and nonmarital property with rights and estates in property. Appellant sought a return of his $40,000 contribution on the theory that it remained his property because it was nonmarital; appellee resisted on the theory that \\\"it\\\"\\u2014either the $40,000 or the property purchased with that sum\\u2014had been given to her. The master, chancellor, and en banc court dealt with the issue as one of a gift of property.\\nThe use of the word \\\"gift\\\" in Grant v. Zich and later in Dorsey may have contributed to the confusion, because \\\"gift\\\" connotes a transfer of some type of estate or ownership or possessory interest in real or personal property. But in Grant v. Zich the Court used the word \\\"gift\\\" in connection with marital property only because it was rejecting the concept, adopted in several other states, that titling nonmarital property in the names of both spouses as tenants by the entirety constituted a gift to the marital unit of the nonmarital status of the property as well as the legal title. Judge Davidson, writing for the Court, was careful to refer to that concept as a \\\"transmutation\\\" of nonmarital property to marital property. Then, following the \\\"source of funds\\\" rule adopted in Harper v. Harper, 294 Md. 54, 80, 448 A.2d 916 (1982), the Court rejected that concept of transmutation. Dorsey reconfirmed the holding in Grant v. Zich that the presumption of gift arising from the titling of property in both spouses so that in the event of divorce the donee spouse legally owns a one-half interest as his or her sole and separate property \\\"has no application when characterizing property as nonmarital or marital under \\u00a7 8-201(e) for the purpose of granting a monetary award under \\u00a7 8-205(a).\\\" 302 Md. at 317, 487 A.2d 1181. In Dorsey the trial court had erroneously held that there was a presumption of a \\\"gift\\\" of the nonmarital status of the property, i.e., a gift not only of the legal estate but of the equities created by the Act, effecting a conversion of nonmarital to marital property. The Court of Appeals reversed and remanded to determine whether in the absence of a presumption such a gift was intended. It would appear that the Court continued to use the word \\\"gift\\\" because that was the word earlier used in Grant v. Zich and was also the word erroneously used and applied by the trial court. What the Court did in Dorsey that took it one step further than Grant v. Zich was to draw a distinction between the presumption of gift arising from titling property in both names and actual proof of all of the elements of a gift: donative intent, delivery or relinquishment of dominion, and acceptance (which is presumed in the absence of evidence to the contrary). 302 Md. at 318, 487 A.2d 1181. With respect to the legal estate alone, the presumption continues to suffice; to establish a gift of the status of the property under the Act in addition to the legal estate, thereby effecting a transmutation of the property from nonmarital to marital or vice versa as part of the gift, proof of all of the elements of such a gift is required. That includes, of course, proof of an intention to give or relinquish the contingent equitable claim that arises from the marital/nonmarital status of the property, which is an intention that cannot be presumed from the titling of the property in both names.\\nA question as to whether property is either marital or nonmarital (or partly marital and partly nonmarital, as in this case) arises only in connection with a divorce, and is of consequence only if the divorce court deems it appropriate to \\\"grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property _\\\" \\u00a7 8-205(a). The status of property as either mari tal or nonmarital, therefore, is not \\\"property\\\" in the traditional sense of a legal estate or interest in real or personal property that is capable of being owned, leased, conveyed, given, or otherwise transferred. It merely confers authority on a divorce court, when it severs the bonds of matrimony, to grant a monetary award to adjust the equities and rights of the parties if a division of property according to legal title would be inequitable.\\nIn Herget v. Herget, 77 Md.App. 268, 279, 550 A.2d 382, 387 (1988), this Court, through Judge Karwacki, noted that in Falise v. Falise, 63 Md.App. 574, 580, 493 A.2d 385 (1985), we pointed out that the right to a monetary award pursuant to \\u00a7 8-205 is not an interest in the estate or property of one's spouse. Rather, it is a remedy provided to divorcing spouses to seek financial compensation to cure inequity in the distribution of property acquired during the marriage according to how that property is titled. See also Zandford v. Wiens, 314 Md. 102, 106, 549 A.2d 13, 14-15 (1988); Niroo v. Niroo, 313 Md. 226, 230-31, 545 A.2d 35 (1988).\\nMd. Family Law Code Ann. \\u00a7 8-202(b)(2) (1984) provides that the court may order a sale in lieu of partition and a division of proceeds as to any property owned by both the parties. In Grant v. Zich the Court of Appeals said that in making a determination as to the disposition of the proceeds of the marital home, the appropriate analysis is the \\\"source of funds\\\" theory set forth in Harper. The Court explained that under the statutory provisions\\na determination of what constitutes marital property for the purpose of granting a monetary award is not dependent upon the legalistic concept of title. The characterization of property as nonmarital or marital depends upon the source of the contributions as payments are made, rather than the time at which legal or equitable title to or possession of the property is obtained.\\nGrant at 300 Md. 269-70, 477 A.2d 1163.\\nWe reiterate, therefore, what the Court of Appeals announced in Grant v. Zich and reconfirmed in Dorsey: the presumption of a gift of legal interest to one spouse upon the other spouse's titling of property in the names of both spouses as tenants by the entirety [or, for that matter, as joint tenants or tenants in common] has no application when determining the nonmarital or marital status of property under \\u00a7 8-201(e) for the purpose of a monetary award under \\u00a7 8-205(a). Dorsey, 302 Md. at 317, 487 A.2d 1181. Since, by reason of the gift from appellant to himself and appellee as tenants by the entirety and the divorce which converted their ownership to a tenancy in common, each of the parties is entitled to an equal division of net proceeds upon the sale of the property, any determination by the court to grant a monetary award to effect an equitable distribution would require the court to consider the nonmarital/marital status of the property.\\nIn Wilen v. Wilen, 61 Md.App. 337, 486 A.2d 775 (1985), the husband argued that because the marital residence was purchased in part with funds he received from the sale of his pre-marital home, the entire equity in the marital home should not be considered as marital property. He asserted further that he should have been given a credit for that portion of the net equity which was attributed to his investment of nonmarital funds. We agreed with that argument, based upon the following language in Harper, supra.\\n[A] spouse contributing nonmarital property is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property. The remaining property is characterized as marital property and its value is subject to equitable distribution. Thus, the spouse who contributed nonmarital funds, and the marital unit that contributed marital funds each receive a proportionate and fair return on their investment.\\nHarper, 294 Md. at 80, 448 A.2d 916.\\nLikewise, appellant in the case sub judice argues that the $40,000 received from his mother was a gift to him alone and thus nonmarital property under \\u00a7 8\\u2014201 (e)(2)(H) and that, therefore, based upon the above language in Harper, he too is \\\"entitled to an interest in the property in the ratio of [his] nonmarital investment to the total nonmarital and marital investment in the property.\\\"\\nCharacterizing the status of the Bowie house, the chancellor relied upon the master's supplemental report which \\\"found\\\" that although the $40,000 was initially appellant's nonmarital property, he made a gift to his wife by his deposit into the parties' joint account and therefore the Bowie house was purchased solely with marital funds entitling each to one-half of the net sale proceeds and no monetary award.\\nWhether appellant made a gift of property, i.e., either co-ownership interest in the $40,000 by depositing it in a joint savings account or a fee simple estate in the realty as co-tenant by the entireties by so titling the house purchased with that $40,000, is irrelevant to our consideration. It is also irrelevant whether a party establishes the fact of such a gift by relying on a presumption or by the production of evidence sufficient to prove all the elements of gift set out in Dorsey. As a consequence of that gift, Mr. and Mrs. Watson became equal tenants in common of the realty upon the severance of their marriage, with each being legally entitled to one-half of the proceeds of any sale of the property. The making of a gift of an ownership interest or estate in the property, however, does not affect a transmutation to marital property of the partial nonmarital property status derived from the application of the \\\"source of funds\\\" rule announced in Harper. The master found, as a matter of fact, that $40,000 of the funds used to acquire the Bowie home was directly traceable to the money advanced to appellant by his mother. What is at issue here, therefore, is not whether appellant gave appellee a legal estate or interest in his property, but whether he also gave, surrendered, released, or waived his right, in the event of a future divorce, to claim whatever benefits the nonmarital status of the property would afford him when the court determines whether to grant either party a monetary award in order to effect an equitable adjustment.\\nOne spouse may, of course, give up or waive this contingent right in favor of the other spouse. Indeed, it is relatively common for such waivers to be included in formal marital settlement agreements. No particular formality is required, however. Any conduct or language that clearly indicates such an intent will suffice. See, e.g., Carsey v. Carsey, 67 Md.App. 544, 508 A.2d 533 (1986). But as with any gift or waiver, an intent to make it must be shown, and the party claiming that there was a gift or waiver of the contingent equitable right or claim in addition to a gift of the legal estate has the burden of proving that intent.\\nWe have thoroughly reviewed the record in this case, and we find therein not a scintilla of evidence to support a finding of such a gift, surrender, or waiver of that contingent equitable right. The only specific evidence as to appellant's intent in causing the property to be titled in the names of both parties as tenants by the entirety was Mr. Watson's own testimony. He said, in effect, that he wanted to provide for his wife and children in the event of his death. Rather than indicating an intent to give up any future claim for equitable relief in the event of a divorce, as found by the court, Mr. Watson's expressed intent was utterly consistent with the presumption of gift that arises from the titling of property acquired with the funds of one spouse in the names of both spouses as tenants by the entirety: each was to own an undivided estate with the right of survivorship so that in the event of the death of either spouse the other would be sole owner. But neither the temporary deposit of funds in a joint account pending purchase of the Bowie property nor the titling of that property in both names as tenants by the entirety can possibly be construed as indicative of the requisite intent to give up or waive a possible future right that could arise only in the event of a divorce. The very act of investing an advance against his inheritance in a house for himself and his family, to be owned by himself and his wife, is utterly inconsistent with Mr. Watson entertaining any thought of divorce at that time.\\nWe hold, therefore, that the finding that appellant had made a gift to appellee of such a nature as to effect a transmutation of his nonmarital property to marital property was clearly erroneous, and we remand in order that the court may consider whether the partial nonmarital status of the Bowie property would require a grant of a monetary award to effect an equitable distribution.\\nAbsent a transmutation from nonmarital to marital property, appellant is at least entitled to claim that, equitably, he should receive a proportionate and fair return on his nonmarital investment, by way of a monetary award, provided there is sufficient marital property to support such an award. His contribution should weigh heavily in the court's decision as to whether to grant appellant a monetary award. And if the court determines that a monetary award is appropriate because division of the parties' property according to legal title would not be equitable, its determination as to what portion of the property in question is marital and what portion is nonmarital will require the application of the \\\"source of funds\\\" rule, establishing the ratio between the contributions to the acquisition of the Bowie house made by appellant and by the marital unit. It is thus that the present net value or equity in the property can be apportioned to determine how much of that value is marital and how much is nonmarital.\\nAfter determining what portion of the property is marital and the value thereof, and taking into account the value of any other marital property out of which a monetary award could be made, the court should then decide whether to grant a monetary award and, if so, in what amount, by considering the ten factors enumerated in \\u00a7 8-205(a). Four of those ten factors, Nos. (1), (2), (3), and (10), clearly have been affected by the $40,000 contributed by appellant to the family unit.\\nJUDGMENT REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.\\nCOSTS TO BE PAID BY APPELLEE.\\n. Sections 3-6A-01 through 3-6A-08 of Md. Cts. & Jud. Proc.Code Ann., enacted by ch. 794 of the Acts of 1978, were repealed by ch. 296 of the Acts of 1984 and transferred to the Family Law Article with no substantive changes pertinent to this case. Although the original divorce decree in this case was entered prior to the effective date of the changeover, we shall cite to the corresponding sections of the Family Law Article in order to avoid confusion as to the statutory references. Henceforth, therefore, unless otherwise specified, Code citations are to sections of the Family Law Article.\\n. The testimony was confusing and the record is unclear as to the amount of cash applied to the purchase price of the property and the closing costs at settlement as well as to the initial amount of the mortgage and the balance thereon at the time of trial, and the present value of the property. The only clear finding with respect to any of those facts is that $40,000 of the purchase price is traceable to the money appellant received from his mother. There was a finding or assumption that the mortgage balance was $52,000 but we cannot tell from the record the source or accuracy of that information.\\n. Section 3-6A-03 dealt with personal property, which is not at issue here. \\u00a7 3-6A-04 provided:\\n(a) When granting an absolute divorce or annulment, the court may resolve any dispute between the spouses with respect to the ownership of real property. However, the court may not transfer the ownership of real property from one spouse to the other.\\n(b) In accordance with the court's determination of the ownership of real property, the court may:\\n(1) Grant a decree which states what the ownership interest of each spouse is; and\\n(2) As to any jointly owned property, order a partition or sale in lieu of partition and a division of the proceeds.\\n. The presumption is a rebuttable one that is based on probability. See, McLain, Maryland Evidence, \\u00a7 301.3 (example 16). When husband and wife are living together, and one of them expends money to acquire, improve or preserve property owned by both of them, it is much more likely that a gift is intended than that payment or reimbursement is expected. Such expenditures made by one spouse when husband and wife are no longer living together, however, will not be presumed to be a gift. See, Crawford v. Crawford, 293 Md. 307, 443 A.2d 599 (1982).\\n. For guidance, we shall reiterate certain principles enunciated in Harper governing the method of calculating nonmarital and marital interests and the value of marital property. Property is nonmarital in the ratio that the nonmarital investment bears to the total nonmarital and marital investment in the property.\\nThe illustrative example in Grant v. Zich, 300 Md. 256, 276 n. 9, 477 A.2d 1163, will furnish additional guidance in calculating the ratio. To the extent that property is nonmarital, its value is not subject to equitable distribution. Property is marital in the ratio that the marital investment bears to the total nonmarital and marital investment in the property. To the extent that the property is marital, but only to that extent, its value is subject to equitable distribution. Consequently, it may be that the marital portion is so small in relation to the nonmarital portion that even a monetary award in the full amount of the marital portion would not effect a return to the husband of his nonmarital contribution. So be it. When one spouse makes a gift to the other or to the marital entity, there is no guarantee that it would be recoverable in the event of a divorce. As noted in MacIntire v. McKay, 74 Md.App. 577, 580, 539 A.2d 258 (1988) (quoting from an earlier unreported per curiam opinion in the same case):\\n\\\"While a monetary award 'is intended to compensate a spouse who either holds no title or holds title to less than an equitable portion of that property' ., we recognize that it does not allow a truly equitable distribution in cases such as the one sub judice, where both spouses hold property that is overwhelmingly the non-marital property of one of the spouses, because the award is limited to the amount of the marital property.\\\"\"}"
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+"{\"id\": \"560142\", \"name\": \"ATTORNEY GRIEVANCE COMMISSION of Maryland, Petitioner, v. Isaac JOE, Jr., Respondent\", \"name_abbreviation\": \"Attorney Grievance Commission v. Joe\", \"decision_date\": \"2005-11-01\", \"docket_number\": \"Misc. Docket AG No. 54\", \"first_page\": \"331\", \"last_page\": \"331\", \"citations\": \"389 Md. 331\", \"volume\": \"389\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:00:05.125468+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ATTORNEY GRIEVANCE COMMISSION of Maryland, Petitioner, v. Isaac JOE, Jr., Respondent.\", \"head_matter\": \"885 A.2d 339\\nATTORNEY GRIEVANCE COMMISSION of Maryland, Petitioner, v. Isaac JOE, Jr., Respondent.\\nMisc. Docket AG No. 54\\nSept. Term, 2005.\\nCourt of Appeals of Maryland.\\nNov. 1, 2005.\", \"word_count\": \"96\", \"char_count\": \"579\", \"text\": \"ORDER\\nThe parties herein have jointly petitioned this Court to reprimand the Respondent pursuant to Maryland Rule 16-772. Upon review of the said Joint Petition and for the reasons set forth therein, it is this 1st day of November, 2005\\nORDERED, that the Respondent, Isaac Joe, Jr., be, and is hereby, reprimanded for his violation of Maryland Rules of Professional Conduct 1.3, 1.4 and 8.1(b).\"}"
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+"{\"id\": \"5739918\", \"name\": \"Andre Devon ARTHUR v. STATE of Maryland\", \"name_abbreviation\": \"Arthur v. State\", \"decision_date\": \"2010-07-02\", \"docket_number\": \"No. 400\", \"first_page\": \"446\", \"last_page\": \"468\", \"citations\": \"193 Md. App. 446\", \"volume\": \"193\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:18:57.999399+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Andre Devon ARTHUR v. STATE of Maryland.\", \"head_matter\": \"997 A.2d 899\\nAndre Devon ARTHUR v. STATE of Maryland.\\nNo. 400,\\nSept. Term, 2008.\\nCourt of Special Appeals of Maryland.\\nJuly 2, 2010.\\nMarc A. DeSimone, Jr. (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for appellant.\\nEdward J. Kelly (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.\\nPanel: EYLER, DEBORAH S., MATRICCIANI, and PAUL E. ALPERT (Retired, Specially Assigned), JJ.\", \"word_count\": \"7185\", \"char_count\": \"42297\", \"text\": \"MATRICCIANI, J.\\nAndre Devon Arthur, appellant, was convicted by a jury in the Circuit Court for Frederick County of failure to obey a lawful order and resisting arrest. The court sentenced him to a term of sixty days incarceration for failure to obey a lawful order, and to a consecutive one year term of incarceration for resisting arrest. Appellant presents two questions on appeal:\\nI. Did the court err in failing to instruct the jury, upon request, that a person is privileged to resist an unlawful arrest and that if they found that Mr. Arthur was unlawfully arrested they should acquit him of the crime of resisting arrest?\\nII. Is the evidence sufficient to sustain Mr. Arthur's convictions for failure to obey a lawful order and resisting arrest?\\nFor the following reasons, we shall affirm.\\nFACTS\\nFrederick Police Corporal Eric Stanley testified that on the night of July 4, 2007, he was working as a Patrol Officer in Frederick when he came upon Andre Arthur, whom he identified at trial as appellant. He recounted that 10 or 15 minutes before midnight, he was driving his patrol vehicle very slowly northbound on Market Street approaching Third Street. He observed a group of three people in the 300 block of Market Street, very close to the intersection, walking northbound. There was no one else in the vicinity. He noticed that appellant reached down and picked up a newspaper left on the sidewalk next to a small tree. Corporal Stanley continued driving northbound and as he passed the threesome, he noticed that appellant had the paper in his hand. As soon as he drove past appellant, he heard \\\"the thump of an item hitting my patrol vehicle.\\\" When Corporal Stanley heard the thump he looked in his side view mirror and noticed that appellant was no longer holding the newspaper. Believing that appellant had thrown the newspaper at his vehicle, he exited his police vehicle and said, \\\"Hey, let me talk to you.\\\" Appellant responded by yelling obscenities at the officer and \\\"specifically said [']you get the fuck away from me, leave me the fuck alone,['] ah, these types of things.\\\" Corporal Stanley told appellant to settle down and that he needed to talk to him, and asked appellant what was going on. Appellant continued his \\\"verbal onslaught.\\\" At that point, they had neared the Old Town Tavern entrance. There were several people standing outside the tavern, \\\"just patrons in and out,\\\" looking toward them. Corporal Stanley explained that while it was \\\"not uncommon for people to look at the police,\\\" \\\"it's also not uncommon for them to go about their, their own business as soon as they, you know, they're not the subject of what it is that we're, we're trying to do \\u2014 \\\" The patrons of Old Town Tavern, however, kept watching him and appellant. As appellant continued his obscenities, \\\"people began to look my way and it was at that time I told him to lower his voice, to settle down, and he continued to refuse. He was trying to leave from me and I told him that he was under arrest.\\\"\\nAs he told appellant that he was under arrest, Corporal Stanley placed his hands on appellant's shirt. Appellant \\\"continued to try to pull from me in, in a yanking, jerking motion. Standing there and trying to, to hold onto him and I called for another police officer to back me up to affect [sic] the arrest. He continued to try to pull away from me.\\\"\\nOfficer Wharton arrived in response to Corporal Stanley's call, and the two officers tried to handcuff appellant. They tried to take him \\\"to the ground.\\\" On the ground, appellant continued to kick and pull. Officer Cirko arrived and assisted with the arrest. Corporal Stanley suffered a sprained ankle during the struggle with appellant. Corporal Stanley allowed the other officers to handcuff appellant, and they took appellant into custody. Corporal Stanley went to the hospital because of his ankle injury, so Officer Cirko completed the paperwork on the arrest.\\nCorporal Stanley testified that he was not angry that someone threw a newspaper at his cruiser, but that he found it dangerous.\\nOn redirect, the officer reiterated what happened when he approached appellant: \\\"He became disorderly, yelling, you know, drawing the attention of the people in front of the bar, screaming obscenities.\\\"\\nAs noted, Frederick Police Officers Cirko and Wharton responded to Corporal Stanley's call for assistance. Officer Wharton testified that when he arrived, he saw Corporal Stanley struggling with appellant. It looked to him as though Corporal Stanley was trying to get appellant's arm behind his back, and Corporal Stanley was being pushed up against the wall. There was \\\"a crowd that was getting closer and closer.\\\" Officer Wharton related that \\\"[o]ne of the guys from the crowd was, ah, was yelling at both, both of 'em. I, I think he was trying to break it up, but I wasn't sure, but the first thing I did was try to get him to step back so I, so he didn't jump in or anything.\\\"\\nOfficer Cirko testified that when he arrived, Corporal Stanley and Officer Wharton \\\"were actively on the ground with Mr. Arthur in a scuffle.\\\" Officer Cirko noticed that Officer Wharton had one of appellant's hands handcuffed and that Corporal Stanley was holding appellant down. Officer Cirko grabbed appellant's other hand and he and Officer Wharton were able to get appellant handcuffed. Officer Cirko said that appellant was taken to the hospital complaining of injuries.\\nDanielle Nicole Brigham, appellant's girlfriend, testified for the defense. She reported that she was with appellant at approximately midnight on July 4, 2007. She testified to a different version of what happened:\\nWe were walking coming from Baker Park and I had stopped to talk to my friend, who I'd seen on the street, on Market because there was a bunch of people on Market street. I had stopped to say hi. As I was going forward, um, I turned around and there was a cop that was approaching Andre and he had asked him to put his hands behind his back and I, Andre had asked, you know, why, why am I getting arrested? Why am I getting arrested? And I had also asked too and he just told him to put his hands behind his back.\\nAnd then he had asked him to put his hands behind his back. He did so. He, I don't want to say forcefully, but had put him on the ground and had put him eventually in the back of the car.\\nOn cross-examination, Brigham reported that she had \\\"just seen a cop car stop and I had seen that, you know, the cop was approaching him.\\\" She affirmed that appellant was taken to the hospital that night. She assumed that it was for injuries he sustained during the arrest because he did not have any injuries before that.\\nAppellant's counsel also called Dasean Arthur, appellant's brother, to the stand. He testified that they were coming from the fireworks display at Baker's Park and were walking to a convenience store. He reported that he was about \\\"two car lengths\\\" from appellant and Brigham. As he was going into the store, he turned around to see if appellant wanted anything from the store and saw the police officer approach. The officer was putting the handcuffs on appellant, and appellant was asking why he was getting arrested. At that point, Corporal Stanley \\\"grabbed him and just threw him to the ground for no reason like.\\\"\\nAppellant also testified as to his version of events:\\nWell, around, I would say around 10:00 in the evening, fireworks just displayed, me and my girlfriend and my brother, we were walking from the, from Baker Park. We were actually walking up to Market Street. While we're walking up Market Street I'm being approached by a police officer and while I'm approached by him he's telling me, you know, place your hands behind your back. I automatically asked him, this is before, you know, he tried to arrest me, I automatically asked him was I, am I under arrest. He said no. So I continued to walk. I walked ahead. I was yelling to my brother telling him, you know, the officer, he's you know, he's harassing me right now. That's how I took it. Like he was actually trying to get, not harassing me, I not gonna say harassing me, but you know, he\\u2014\\n\\u2014was asking me questions.\\nAppellant further testified that he picked up the newspaper and threw it across the street, but not at or on the officer's car, and he did not hit any vehicle with it. When the officer saw appellant throw the paper across the street, he \\\"jumped out his car,\\\" and appellant got defensive. Appellant averred that the officer never said he wanted to detain him and just told him to place his hands behind his back, and the officer tried to arrest him but did not tell him why. Appellant asked whether he was under arrest, and the officer said, \\\"no,\\\" so appellant continued to walk. Then, the officer grabbed him by the shirt and \\\"slammed\\\" him up against the wall. Appellant testified that he told the officer that he did not need to be so aggressive and put one of his hands behind his back, at which point the officer brought him to the ground by \\\"sweeping\\\" one of his legs:\\nI fell down onto my shoulder. After I fall down onto my shoulder another officer comes and he's trying to handcuff my other hand. He takes my other hand, places it behind my back and he, he smashes my finger. I got, I got a cut. Actually I got on my hand also from the handcuff because he jerked the handcuff and smashed it onto my finger instead of on my wrist.\\nAppellant denied using profanity or cursing, but said he did curse when he was on the ground. Appellant further testified that he had an injury underneath his arm, a knee injury from one of the officers, a pinched nerve in his neck from one of the officers placing his knee into appellant's neck, shoulder injuries and four or five cuts. He claimed that one of the officers hit him with a baton four or five times. He denied resisting arrest and denied that the officer ever told him why he was under arrest, or why he was being detained.\\nOn cross-examination, appellant repeated that he threw the newspaper across the street right in front of the police car. He maintained that he was \\\"actually throwing it to one of my buddies 'cause it was thrown over to me and we was just like playing catch.\\\" He continued, saying that he was throwing it to a friend who lived \\\"directly across the street\\\" and was \\\"standing right in front of his building\\\" and that the newspaper belonged to his friend. Appellant explained that he had been drinking \\\"a little bit.\\\" Appellant also said that Corporal Stanley's vehicle was stopped at the light and he did not know it was a police car. He said that as soon as the light turned green, Corporal Stanley pulled up and approached him. He conceded that he had an idea why the officer might want to talk to him, but he thought that because the officer said he was not under arrest, he did not have to talk to him.\\nAppellant's counsel moved for a judgment of acquittal on the ground that the State failed to show that appellant failed to obey a lawful order, and since he was not disregarding a lawful order there was no right to arrest him.\\nAdditional facts will be set forth, as needed, in our resolution of the questions presented.\\nDISCUSSION\\nI. \\u2014 Instruction On Right To Resist Arrest\\nWhen the trial court discussed the proposed jury instructions, appellant's counsel objected to the use of the pattern instruction. The following occurred:\\n[DEFENSE COUNSEL]: (Inaudible \\u2014 one word) Your Honor that I, (inaudible \\u2014 one word) I had a (inaudible \\u2014 one word). If you determine the Defendant was not lawfully arrested and no arrest warrant was used then the Defendant had the right to resist arrest and that's pursuant to case law. Resisting unlawful arrest is not a crime in Maryland. If an arrest is illegal the arrestee may use any reasonable means to, even for to affect [sic] his escape. And that's, that's Maryland case law.\\nTHE COURT: The problem that you get into in this case is there's, I don't really want to have a sub-litigation issue about whether his arrest, because there, there could be four or five different things that he could have been arrested for according to the police officers. According to him, nothing. I'm gonna give the Pattern and no embellishment to\\u2014 \\u2014it in this particular case.\\n[DEFENSE COUNSEL]: Your Honor, I'm, I'm not asking for embellishment. I would object to just a Pattern. I'm just stating that under Maryland law it is illegal [sic] to resist an illegal arrest. If the jury concludes that any of the four theories that he was legally arrested then he has no defense. But if the jury concludes that there wasn't no \\u2014 a, a legal arrest, under Maryland law he has the right to resist and we have generated that instruction. I would just simply ask that that instruction be added.\\nTHE COURT: How do you believe that you, you have generated that instruction? From the Defendant's initial, own testimony, best case he was littering. Second, he was acting, I, I mean, looking at it objectively the Defendant's own conduct constituted a particular offense.\\nThe trial court refused to give appellant's requested instruction, stating two grounds: first, the court was not sure the defense was generated; second, the requested instruction was not in the pattern instructions. The trial court said it would instruct the jury that \\\"they do have to find that there were reasonable grounds to believe that the Defendant had committed a crime for him to be guilty of that offense.\\\" The court noted counsel's objection for the record.\\nThe Parties' Contentions\\nAppellant contends that the trial court erred in \\\"failing to instruct the jury as to the longstanding legal principle that, in Maryland, a person is privileged to offer reasonable resistance to an unlawful warrantless arrest.\\\" See In re Albert S., 106 Md.App. 376, 396-97, 664 A.2d 476 (1995). He asserts that \\\"the jury was permitted to convict only so long as it found that Corporal Stanley had \\u2014 in the layperson's view \\u2014 'reasonable grounds' to arrest, and was left with the mistaken impression that if Mr. Arthur did not passively acquiesce in that arrest he was guilty of resisting arrest.\\\" (Internal footnote omitted).\\nThe State counters that the pattern jury instruction sufficiently covered the area. In addition, the State asserts that the \\\"reasonable grounds\\\" language \\\"properly conveys the concept of probable cause, which must be present to effect a lawful arrest.\\\" The State further contends that Corporal Stanley had probable cause to arrest appellant for \\\"newspaper theft . as well as other crimes, such as obstruction, second degree assault, and reckless endangerment.\\\"\\nNeed For An Instruction\\nMaryland Rule 4-325(c) provides that \\\"[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law.\\\" When requested to do so by a party, the trial court is required to give an instruction that correctly states the applicable law if it has not been fairly covered in the instructions actually given. State v. Martin, 329 Md. 351, 356, 619 A.2d 992, cert. denied, 510 U.S. 855, 114 S.Ct. 161, 126 L.Ed.2d 122 (1993). The instruction need not be given, however, unless the requesting party has generated the issue, i.e., produced \\\"some evidence\\\" sufficient to give rise to a jury issue on the defense.\\nIn Dykes v. State, 319 Md. 206, 571 A.2d 1251 (1990), a case involving a self-defense claim, the Court of Appeals explained:\\nSome evidence is not strictured by the test of a specific standard. It calls for no more than what it says \\u2014 \\\"some,\\\" as that word is understood in common, everyday usage. It need not rise to the level of \\\"beyond reasonable doubt\\\" or \\\"clear and convincing\\\" or \\\"preponderance.\\\" The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the [] claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self-defense, the defendant has met his burden. Then the baton is passed to the State. It must shoulder the burden of proving beyond a reasonable doubt to the satisfaction of the jury that the defendant did not kill in self-defense.\\nId. at 216-17, 571 A.2d 1251 (emphasis in original).\\n\\\"In evaluating whether competent evidence exists to generate the requested instruction, we view the evidence in the light most favorable to the accused.\\\" Fleming v. State, 373 Md. 426, 433, 818 A.2d 1117 (2003). As the Court of Appeals explained in Dishman v. State, 352 Md. 279, 721 A.2d 699 (1998):\\nThe task of this Court on review is to determine whether the criminal defendant produced that minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired.... [A] defendant charged with murder who seeks instructions on the issue of mitigation or self-defense bears the \\\"burden of initially producing 'some evidence' . sufficient to give rise to a jury issue with respect to these defenses.\\\"\\nId. at 292-93, 721 A.2d 699 (citing State v. Evans, 278 Md. 197, 208, 362 A.2d 629 (1976)).\\nWe disagree with the State's assertion that there was no evidence of an unlawful arrest and therefore no reason to give the disputed instruction. If the jury believed appellant and his witnesses, they might conclude that Corporal Stanley had no reason to arrest appellant. Nonetheless, we see no error. The instruction the trial court gave followed almost exactly, with insignificant changes, Maryland Criminal Pattern Jury Instructions 4:27.1, as follows:\\nThe second charge the Defendant is charged with is resisting a warrantless arrest. The Defendant is charged with the crime of resisting arrest. In order to convict the Defendant of [ ] resisting arrest, the State must prove each of the following elements: That a law enforcement officer attempted to arrest the Defendant; that the Defendant knew that a law enforcement officer was attempting to arrest him; that the officer had reasonable grounds to believe that the Defendant had committed a crime and that the Defendant refused to submit to the arrest and resisted the arrest by force.\\nMPJI-CR 4:27.1 (emphasis added).\\nIt is clear from that instruction that the State was required to prove that Corporal Stanley had reasonable grounds to believe appellant had committed a crime. If the jury believed that the officer did not have reasonable grounds to arrest appellant, then it was required to find him not guilty of resisting arrest.\\nWe agree with the State that \\\"the 'reasonable grounds' language contained in the pattern instruction properly conveys the concept of probable cause.\\\" The United States Supreme Court has stated that \\\"the 'substance of all the definitions of probable cause is a reasonable ground for belief of guilt.' \\\" Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). The Maryland Court of Appeals has described probable cause as \\\"a non-technical conception of a reasonable ground for belief of guilt.\\\" See, e.g., Haley v. State, 398 Md. 106, 132-33, 919 A.2d 1200 (2007); State v. Wallace, 372 Md. 137, 148, 812 A.2d 291 (2002); Wilkes v. State, 364 Md. 554, 584, 774 A.2d 420 (2001).\\nThis Court and the Court of Appeals have noted the credentials and the expertise of the pattern instructions committee and recognized the value of following the pattern instructions. In Wills v. State, 329 Md. 370, 383, 620 A.2d 295 (1993), referring to the Maryland Pattern Jury Instruction on reasonable doubt, the Court of Appeals stated:\\nThe fourteen members of the Committee which fashioned the Maryland Pattern Jury Instructions \\u2014 Criminal 1991 (MPJI \\u2014 CR) consisted of judges at the trial and appellate level, prosecutors and former prosecutors, defense attorneys, law professors and other distinguished members of the Maryland bar.\\nIn Green v. State, 127 Md.App. 758, 771, 736 A.2d 450 (1999), this Court commented:\\n[W]e say for the benefit of trial judges generally that the wise course of action is to give instructions in the form, where applicable, of our Maryland Pattern Jury Instructions. Those instructions have been put together by a group of distinguished judges and lawyers who almost amount to a \\\"Who's Who\\\" of the Maryland Bench and Bar. Many of these instructions have been passed upon by our appellate courts.\\nIndeed, appellant recognizes that \\\"the Maryland Pattern Jury Instructions are presumed to be valid and in accordance with Maryland law.\\\" Although we have recognized that there are situations in which the pattern instruction is inadequate, such deviations are generally owing to unusual fact patterns rather than error in the instruction. In Rajnic v. State, 106 Md.App. 286, 664 A.2d 432 (1995), this Court concluded that the trial court's use of the Criminal Pattern Jury Instruction on self-defense was not sufficient. We noted, however:\\nOur decision here today should not be construed as a departure from the appellate policy of general adherence to the Maryland Criminal Pattern Jury Instructions. See generally Wills v. State, 329 Md. 370 [620 A.2d 295] (1993). Rather, our holding, that more was required than that set forth in the pattern instruction on self-defense, is limited to the particular and somewhat unique facts of the instant case.\\nId. at 291 n. 1, 664 A.2d 432.\\nIn the present case, appellant has not stated how this case is distinguishable from other cases in which the State must prove that a defendant resisted arrest. The pattern instruction adequately covered the concept that the arrest must be lawful. The trial court did not err in instructing the jury using the pattern instruction.\\nII. \\u2014 Sufficiency Of The Evidence\\nThe Parties' Contentions\\nAppellant contends that the evidence was insufficient to show that appellant failed to obey a lawful order, and, therefore, Corporal Stanley had no right to arrest him. Appellant claims that \\\"[t]he First Amendment of the United States Constitution granted Mr. Arthur the ability to continue his expression, and forbid [sic] [Corporal] Stanley from ordering Mr. Arthur to stop speaking.\\\"\\nThe State asserts that appellant failed to preserve the issue because appellant did not contend in the trial court that the officer could not arrest him for using objectionable language. The State further asserts that, even if preserved, appellant's contention is without merit.\\nPreservation\\nMaryland Rule 4-324(a), which governs motions for judgments of acquittal, provides, in pertinent part:\\n(a) Generally. A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted.\\nThe language of the rule is mandatory. State v. Lyles, 308 Md. 129, 134-36, 517 A.2d 761 (1986); Whiting v. State, 160 Md.App. 285, 308, 863 A.2d 1017 (2004), aff'd, 389 Md. 334, 885 A.2d 785 (2005).\\nIn the present case, appellant's counsel argued at the end of the State's case that appellant \\\"had a right to resist,\\\" and, at the close of all evidence, argued that \\\"the State failed to show that [appellant] . failed to obey a lawful order . and there was no right to arrest.\\\" With these statements, appellant preserved for review the question of whether Corporal Stanley's order was lawful.\\nStandard Of Review\\nThe standard for our review of the sufficiency of the evidence is \\\"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\\\" See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); see also State v. Suddith, 379 Md. 425, 429, 842 A.2d 716 (2004). In performing its fact-finding role, the trier of fact\\u2014 here, the jury \\u2014 decides which evidence to accept and which to reject. See Jones v. State, 343 Md. 448, 460, 682 A.2d 248 (1996).\\nAlthough we take the facts as the jury found them, we determine de novo whether there was a constitutional violation \\\"by reviewing the law and applying it to the facts of the case.\\\" See State v. Collins, 367 Md. 700, 707, 790 A.2d 660 (2002).\\nValidity Of The Arrest\\nTo convict appellant of resisting arrest, the State was required to prove, inter alia, that the arrest was lawful. See Purnell v. State, 375 Md. 678, 689, 827 A.2d 68 (2003); Barnhard v. State, 325 Md. 602, 609-10, 602 A.2d 701 (1992). Here, Corporal Stanley arrested appellant for failure to obey a lawful order to lower the volume of his voice.\\nMaryland Code (2002), \\u00a7 10-201 of the Criminal Law Article (\\\"CR\\\"), prohibits \\\"[disturbing the public peace and disorderly conduct,\\\" and provides, in pertinent part:\\n(c) Prohibited. \\u2014 .\\n(2) A person may not willfully act in a disorderly manner that disturbs the public peace.\\n(3) A person may not willfully fail to obey a reasonable and lawful order that a law enforcement officer makes to prevent a disturbance to the public peace.\\n(5) A person from any location may not, by making an unreasonably loud noise, willfully disturb the peace of another:\\n(i) on the other's land or premises;\\n(ii) in a public place; or\\n(iii) on a public conveyance.\\nAppellant relies on Downs v. State, 278 Md. 610, 366 A.2d 41 (1976), to establish that his arrest was unlawful. The Court of Appeals stated the facts of Downs, as follows:\\nAppellant Downs was conversing with three friends while eating an early morning breakfast in a Lexington Park restaurant. In the course of the conversation Downs said in a loud voice, \\\"All the goddamn policemen in this County are no fucking good, they're just after me.\\\" A few minutes later he loudly said, \\\"[T]he fucking niggers in this County are no better than goddamn policemen.\\\" A uniformed State Trooper (Trooper Taylor) sitting at a table about eight feet away from the booth in which Downs and his friends were seated overheard these remarks.\\nThe trooper went over to Downs' booth and told him that his talk was disruptive and that he would be placed under arrest if he did not refrain from using such profane language. Downs replied, \\\"You ain't bad enough to place me under arrest,\\\" whereupon the trooper grabbed him and informed him that he was under arrest for disorderly conduct. A scuffle ensued, but Taylor finally managed to handcuff Downs.\\n278 Md. at 611-12, 366 A.2d 41 (internal footnote omitted). Trooper Taylor stated that he was not personally incited by the comments about police officers, but he was concerned about the effects of the racist comments in the racially mixed crowd. Downs claimed that his remarks were not directed to anyone in particular. Id. at 612, 366 A.2d 41.\\nThe Court of Appeals concluded that Downs' speech was protected by the First Amendment because there was no direct evidence that he made his comments to anyone other than the persons sitting in the booth with him. The Court also pointed out that no evidence was adduced that anyone else, beside Trooper Taylor, heard this statement, or, if they did, that they were so offended by it that they were \\\"so aroused as to respond in a violent manner.\\\" Id. at 618, 366 A.2d 41.\\nAlthough we agree with appellant that his language was protected speech, we disagree that Corporal Stanley arrested him based on his language. In our view, Corporal Stanley's testimony was clear that he arrested appellant because of the volume of appellant's verbalizations and not their content, and the jury accepted that testimony.\\nThis distinction was made in Polk v. State, 378 Md. 1, 835 A.2d 575 (2003). There, Polk went to pick up her final paycheck at the hospital where she had worked. When she went to her employer's Human Resources Department (\\\"Human Resources\\\"), she was told that her paycheck was in the \\\"Heart Center,\\\" her work site. When she went to the Heart Center, her former supervisor told her that her check was not there and to return to Human Resources. Soon after that, the supervisor found the pay check and called Hospital security to have the check delivered to Polk at Human Resources. Raymond Sperl, the security officer who responded to the supervisor's request, encountered Polk at Human Resources, and when Polk asked him about the check, he told her he had to take it to personnel. Polk responded, \\\"Fuck you, asshole.\\\" A Human Resources employee indicated to Sperl that he could give Polk the check. Polk \\\"snatched\\\" it from him, repeating the expletive. As Sperl escorted Polk toward an exit, he told her to \\\"keep your mouth quiet and leave.\\\" She again repeated the expletive. Sperl told her to \\\"keep your mouth quiet and leave or I'm going to lock you up for disorderly conduct.\\\" Id. at 4, 835 A.2d 575. He told her to \\\"keep [her] mouth shut, stop [her] cursing, [and] just leave the property.\\\" He warned her several times that \\\"she'd be locked up [for disorderly conduct] if she didn't stop her profanity.\\\" Id. Two women \\\"heard the commotion\\\" and walked away. Id. As Polk left the hospital, she turned toward Sperl and shouted, \\\"Fuck you, asshole.\\\" Id.\\nAs Sperl escorted Polk toward the Hospital parking garage Polk was \\\"yelling at him and cursing at him.\\\" Id. at 5, 835 A.2d 575. \\\"When the 'vulgarity . intensified,' \\\" Sperl told Polk she was under arrest. Id. When he grabbed her shoulder, she pulled away and bit his arm. Other officers arrived and eventually subdued her. Id.\\nPolk was charged, inter alia, with engaging in disorderly conduct, in violation of Maryland Code (1957, 1996 Repl. Vol., 2001 Supp.), \\u00a7 121(b)(3) of Article 27. Polk, 378 Md. at 5, 835 A.2d 575. After the State presented its case, she moved for a judgment of acquittal on all the charges, arguing that Sperl's orders to \\\"stop cursing\\\" \\\"were unlawfully directed at the content of her speech and that a 'domino effect' made her subsequent arrest illegal.\\\" Id. She asserted that her use of profanity against the officer was protected speech and that because she had not disobeyed a lawful order, the officer had no reason to arrest her. Id. She claimed, therefore, that she \\\"rightfully resisted the attempts to arrest her.\\\" Id. The trial court denied her motion, concluding that Sperl's orders to \\\"quiet down\\\" were \\\"lawful orders to prevent a disturbance to the public peace,\\\" \\\"directed at the volume of Polk's speech rather than its content,\\\" and that \\\"a reasonable fact-finder could find that Polk failed to comply with the officer's order to reduce the volume of her voice.\\\" Id. at 5-6, 835 A.2d 575.\\nThis Court agreed and affirmed Polk's convictions. Id. at 6, 835 A.2d 575. The Court of Appeals agreed that Sperl's orders were directed to the volume of Polk's voice and were reasonable and lawful orders. Id. at 7, 835 A.2d 575. The Polk Court distinguished its case from Diehl v. State, 294 Md. 466, 451 A.2d 115 (1982):\\nSignificantly, and unlike the present case, the arresting officer in Diehl testified that he arrested Diehl because of the content of his language. Diehl, 294 Md. at 478 [451 A.2d 115]. Corporal Sperl, on the other hand, did not testify that he arrested Polk based on the content of her language. Instead, he stated that he told Polk \\\"just shut your mouth and leave or you're going to be locked up for disorderly conduct.\\\" This testimony supports the rational inference drawn by the trial court that the order was a lawful attempt to prevent Polk's violation of \\u00a7 121 due to her loud and disruptive behavior.\\nId. at 13, 835 A.2d 575. The Court noted that there \\\"was ample testimony before the trial court supporting its finding that Corporal Sperl issued orders aimed, in the main, at the volume of Ms. Polk's speech.\\\" Id. at 14, 835 A.2d 575.\\nEanes v. State\\nAppellant contends that the present case is more like Diehl and Downs than Polk. He asserts that the \\\"the most critical point of difference between Polk and Downs, Diehl, and the present case seems to be within the context of the second Eanes [v. State, 318 Md. 436, 569 A.2d 604 (1990) ] factor, the circumstances surrounding the time and place where the speech occurred, as well as the overhearing parties' location.\\\" See Polk, 378 Md. at 12, 835 A.2d 575; Eanes, 318 Md. at 447, 569 A.2d 604. He recites that \\\"[t]he record discloses that Corporal Stanley encountered Mr. Arthur in the milieu of a city sidewalk on the evening of the Fourth of July, a public concourse with a restaurant up the street.\\\" He likens the situs \\\"to the public parking lot in Diehl, or the restaurant in Downs, and clearly distinguishable from the hospital in Polk where the majority recognized 'a compelling interest in maintaining peace and quiet in the environs of the Hospital.' \\\" See Polk at 19-20, 835 A.2d 575.\\nEanes, however, demonstrates that speech may be sufficiently loud to amount to disorderly conduct even on a public sidewalk. In that case, Eanes had gathered with others in front of a medical clinic on a public street in Hagerstown to \\\"assemble^] to speak out against abortion, to pass out gospel tracts [and] to try to talk to girls that are walking by [in order to explain the evils of abortion.]\\\" Eanes, 318 Md. at 441, 569 A.2d 604 (alterations in original). A police officer spoke with Eanes and told him that the police had received a number of noise complaints and requested that the group lower its volume. Id. at 441-42, 569 A.2d 604. The officer left, but he returned forty minutes later in response to further complaints and arrested Eanes for disturbing the peace. Id. at 442, 569 A.2d 604. The District Court found Eanes guilty of disturbing the peace, and, at a trial de novo, the circuit court found Eanes \\\"guilty of willfully disturbing the peace and tranquility of that particular neighborhood . by making loud and otherwise unacceptable^] improper under the circumstances noises.\\\" Id. at 443, 569 A.2d 604 (alteration in original).\\nThe Court of Appeals discussed several United States Supreme Court decisions regarding statutory restrictions on speech and noted that the level of scrutiny depends on \\\"whether the statute distinguished between prohibited and permitted speech on the basis of content.\\\" Id. at 447, 569 A.2d 604 (quoting Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). The Court explained:\\nA content-based restriction is constitutionally hale only if it can be shown that the challenged \\\" 'regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end....'\\\" [Frisby ] (quoting Perry [Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ]....) On the other hand, a state \\\" 'may . enforce regulations of the time, place and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.' \\\" Frisby, 487 U.S. at 482 [108 S.Ct. 2495] (quoting Perry, 460 U.S. at 45 [103 S.Ct. 948]).\\nEanes, 318 Md. at 447-48, 569 A.2d 604.\\nThe Court of Appeals held that the State did not violate Eanes' First Amendment rights. The court recognized that \\\" '[I]f one of the proposed interpretations would render an enactment valid, while another would render it invalid or ineffective, the court will construe the enactment to be valid whenever feasible,' \\\" Eanes, 318 Md. at 448, 569 A.2d 604 (quoting City of College Park v. Cotter, 309 Md. 573, 589, 525 A.2d 1059 (1987)), and therefore construed the phrase \\\"loud and unseemly noise\\\" \\\"in a content-neutral fashion in order to remain in conformity with first amendment jurisprudence.\\\" The court construed the statute to mean that \\u00a7 121 could be enforced \\\"only if the speech is unreasonably loud under the circumstances,\\\" and, thus, content-neutral. Id. at 449, 569 A.2d 604. Quoting from Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), the Court noted that \\\" 'it can no longer be doubted that government has a substantial interest in protecting its citizens from unwelcome noise.' \\\" Eanes, 318 Md. at 450, 569 A.2d 604 (quoting Ward, 491 U.S. at 796, 109 S.Ct. 2746 (internal citations, quotation marks, and brackets omitted)). The Court further noted that numerous Supreme Court cases \\\"reflect judicial concern with balancing the right of free speech with the individual's right to be free from unwanted communication.\\\" Id. at 450, 569 A.2d 604. The Court then concluded:\\nWe read the statute as going no further than to afford content-neutral protection to the captive auditor (on the facts before us, auditors in homes or in private offices) who cannot avoid continuing, unreasonably loud and disruptive communications emanating from the street. So read, the statute serves a substantial interest and is narrowly tailored to serve those ends.\\nId. at 453-54, 569 A.2d 604.\\nThis Case\\nAlthough CR \\u00a7 10-201 is worded differently from Art. 27, \\u00a7 121, it is clear that it also affords content neutral protection to the captive auditor. In the present case, Corporal Stanley testified that when he approached appellant, appellant began yelling obscenities at him, and he told appellant to settle down. He further testified that when he and appellant neared the Old Town Tavern, people outside the doors of the tavern stood and watched them. Corporal Stanley said that he told appellant to \\\"lower his voice, to settle down, and [appellant] continued to refuse.\\\" He later testified that appel lant \\\"became disorderly, yelling . drawing the attention of the people in front of the bar, screaming obscenities.\\\"\\nFurther, the record reveals that the incident occurred late at night, and, from appellant's testimony that his \\\"buddy' lived directly across the street, the area was at least partly residential. The individuals in their homes were entitled to be free from unreasonably loud noise. A rational jury could find that Corporal Stanleys order that appellant lower his voice was content-neutral and was based on the volume of appellant's voice. The jury could also find that the order was reasonable, that it was intended to prevent a disturbance to the public peace, and that appellant disobeyed it. Because the officer had a right to arrest appellant for committing the offense in his presence, the jury could find that appellant resisted a lawful arrest and, therefore, was guilty of the offense of resisting arrest.\\nJUDGMENTS AFFIRMED. COSTS TO BE PAID BY APPELLANT.\\n. Maryland Criminal Pattern Jury Instructions 4:27.1 sets out the pattern instruction for \\\"Resisting Arrest (Warrantless):\\\"\\nThe defendant is charged with the crime of resisting arrest. In order to convict the defendant of resisting arrest, the State must prove:\\n(1) that a law enforcement officer attempted to arrest the defendant;\\n(2) that the defendant knew that a law enforcement officer was attempting to arrest [him] [her];\\n(3) that the officer had reasonable grounds to believe that the defendant [was committing] [had committed] (crime); and\\n(4) that the defendant refused to submit to the arrest and resisted the arrest by force.\\n. In a footnote, appellant complains of the court's instruction that appellant was required to submit to the arrest so long as the officer had reasonable grounds \\u2014 and not probable cause \\u2014 to believe Mr. Arthur was engaged in criminal activity. The State asserts that this complaint is waived because appellant did not make the claim at trial. Although we agree that it was waived, our discussion will resolve that issue as well.\\n. Appellant also relies upon Diehl v. State, 294 Md. 466, 451 A.2d 115 (1982), to the same effect. The holding in Diehl, however, depended on the fact that the defendant was \\\"acting in a lawful manner (a passenger getting out of a stopped car) and [was] the object of an unlawful police order.'' Polk, 378 Md. at 10 n. 4, 835 A.2d 575 (2003) (quoting Diehl, 294 Md. at 479, 451 A.2d 115). However, in the wake of Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), which held that officers have the right to order passengers to either exit or remain in a stopped vehicle, a citizen in Diehl's position would not have been the subject of an unlawful police order. Id. As we explain below, the officer in the present case lawfully approached appellant and ordered him to lower his voice, and the holding from Diehl does not, therefore, apply to the instant case. See Polk, 378 Md. at 10 n. 4, 835 A.2d 575.\\n. Taking the evidence in a light most favorable to the prosecution, Corporal Stanley approached lawfully because he reasonably suspected that appellant had thrown an object into traffic and, in doing so, struck Corporal Stanley's vehicle.\\n. Maryland Code (2001, 2008 Repl. Vol.), \\u00a7 2-202 of the Criminal Procedure Article, entitled \\\"Warrantless arrests \\u2014 In general,\\\" provides:\\n(a) Crimes committed in presence of police officer. \\u2014 A police officer may arrest without a warrant a person who commits or attempts to commit a felony or misdemeanor in the presence or within the view of the police officer.\\n(b) Probable cause to believe crime committed in presence of officer. \\u2014 -A police officer who has probable cause to believe that a felony or misdemeanor is being committed in the presence or within the view of the police officer may arrest without a warrant any person whom the police officer reasonably believes to have committed the crime.\\n(c) Probable cause to believe felony committed. \\u2014 A police officer without a warrant may arrest a person if the police officer has probable cause to believe that a felony has been committed or attempted and the person has committed or attempted to commit the felony whether or not in the presence or within the view of the police officer.\"}"
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+"{\"id\": \"777277\", \"name\": \"SUBURBAN HOSPITAL, INC. v. MARYLAND HEALTH RESOURCES PLANNING COMMISSION\", \"name_abbreviation\": \"Suburban Hospital, Inc. v. Maryland Health Resources Planning Commission\", \"decision_date\": \"1999-04-01\", \"docket_number\": \"No. 562\", \"first_page\": \"579\", \"last_page\": \"601\", \"citations\": \"125 Md. App. 579\", \"volume\": \"125\", \"reporter\": \"Maryland Appellate Reports\", \"court\": \"Court of Special Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T18:43:19.608202+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SUBURBAN HOSPITAL, INC. v. MARYLAND HEALTH RESOURCES PLANNING COMMISSION.\", \"head_matter\": \"726 A.2d 807\\nSUBURBAN HOSPITAL, INC. v. MARYLAND HEALTH RESOURCES PLANNING COMMISSION.\\nNo. 562,\\nSept. Term, 1998.\\nCourt of Special Appeals of Maryland.\\nApril 1, 1999.\\nJack C. Tranter (Thomas C. Dame and Gallagher, Evelius & Jones, LLP, on the brief), Baltimore, for appellant.\\nSnellen Wideman, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, and Margaret Ann Nolan, Assistant Attorney General, on the brief), for appellee.\\nBefore SALMON, EYLER and KENNEY, JJ.\", \"word_count\": \"6432\", \"char_count\": \"39688\", \"text\": \"KENNEY, Judge.\\nAppellant, Suburban Hospital, Inc. (\\\"Suburban\\\"), sued ap-pellee, the Maryland Health Resources Planning Commission (\\\"the Commission\\\"), in the Circuit Court for Baltimore City, seeking to void the Commission's adoption of the Open Heart Surgery Section of the State Health Plan (the \\\"proposed OHS Section\\\"). Suburban alleged that the Commission violated the Open Meetings Act, Md.Code (1984, 1995 Repl.Vol., 1998 Supp.), \\u00a7 10-501 et. seq. of the State Government Article (\\\"S.G.\\\"), by deliberating about the proposed OHS Section in a meeting closed to the public. The Commission moved to dismiss Suburban's complaint or, in the alternative, for summary judgment. After a hearing on January 6, 1998, the circuit court granted the motion for summary judgment by Order on January 14, 1998. Suburban appeals from the circuit court's decision.\\nFacts\\nThe circuit court succinctly explained the factual background to this case:\\nThe Maryland Health Resources Planning Commission not only establishes the State's health plan, but it also reviews requests by health facilities to provide specific health services. Md. Health General Code Ann. \\u00a7 19-101, et seq. According to the statutory scheme, the State health plan must include (1) a description of the components that should comprise the health care system; (2) the goals and policies for Maryland's health care system; (3) identification of unmet needs, excess services, minimum access criteria, and services to be regionalized; (4) an assessment of the financial resources required and available for the health care system; and (5) the methodologies, standards, and criteria for certificate of need review. Md. Health General Code Ann. \\u00a7 19-114(a)(2).\\nOn April 1, 1996, Suburban and Holy Cross Hospital of Silver Spring, Inc. filed letters of intent in which they proposed establishing new open heart surgery programs in the Washington Metropolitan Region. On September 27, 1996, they filed the appropriate Certificate of Need applications. The Commission, relying upon the notion that there was not a need for additional open heart surgery programs in the area, denied both applications. On June 18, 1997, the Circuit Court for Baltimore City reversed the Commission's decision and ordered the Commission to review the merits of the Suburban and Holy Cross applications \\\"in a prompt and timely fashion.\\\" While an appeal of the Court's order is pending in the Court of Special Appeals, Suburban filed a modified application with the Commission.\\nSubsequently, the Commission updated and revised the State Health Plan Chapter on Cardiac Surgery and Therapeutic Catheterization Services. After extensive public comment, several public hearings and finally publication in the Maryland Register, the Commission considered the proposed Open Heart Chapter regulation for promulgation as a final rule at its November 11,1997 meeting.\\nAfter discussion of the proposed Open Heart Surgery (\\\"OHS\\\") Section at the meeting, Commissioner Joan Harris moved for the adoption of the OHS Section as proposed, a version that would have precluded approval of a new open heart surgery program in the Washington metropolitan region (the \\\"Region\\\"). Before any action was taken on that motion, Commissioner Marvin Schneider, M.D., proposed an amendment (the \\\"Schneider Amendment\\\") to alter the method of measuring open heart surgery program capacity in the proposed OHS Section, thereby permitting additional open heart programs in the Region if certain criteria were met.\\nAfter more discussion, Chairman George S. Malouf, M.D., called for a vote on the Schneider Amendment. After six of the nine commissioners voted in favor of its adoption, James Stanton, the Commission's Executive Director, interrupted the vote to urge Commissioners who voted for the Schneider Amendment to reconsider.\\nWithout finishing the vote, the Commissioners discussed the possible need to republish the entire proposed OHS Section in the Maryland Register as a proposed rule if the Schneider Amendment was adopted, and asked C. Frederic Ryland, an Assistant Attorney General and General Counsel to the Commission, if adding the Schneider Amendment would necessitate republishing the entire proposed OHS Section. Mr. Ryland stated that the promulgation process would have to be repeated. Several Commissioners and staff members who opposed the Schneider Amendment opined that adding the Amendment would require additional public hearings. Chairman Malouf eventually called for a second vote on the Schneider Amendment. Two Commissioners changed their position, resulting in a five to four vote against the Amendment.\\nCommissioner Schneider requested that the Commission stay the execution of its decision until Mr. Ryland could provide a \\\"more considered thoughtful opinion\\\" about the procedural ramifications of altering the proposed OHS Section. Commissioner Ruth Spector then moved for reconsideration of the vote that rejected the Schneider Amendment. Before action was taken on that motion, the Commissioners unanimously voted to meet in a closed \\\"executive session\\\" to obtain advice from counsel. The Commission held a thirty-minute closed session. The meeting minutes do not detail any of the events of the closed session.\\nAfter the Commission returned to public session, Chairman Malouf brought up the pending motion to reconsider, which Commissioner Spector immediately withdrew. Chairman Malouf stated that the Schneider Amendment was defeated and that the Commission would consider the original motion, i.e., the proposed OHS Section, without any amendment. The Commission then voted seven to two to approve the unamended proposed OHS Section.\\nCommissioner Walter Hall immediately stated:\\nMr. Chairman, I would like to request that we ask the staff to consider a petition to amend the section of the plan and examine a number of issues specifically focused on the hospitals and environmental suburbs of the District of Columbia[,] issues such as the relationship of the rates set by our own cost review commission for the Maryland hospitals, vis-vis [sic] the costs and charges within the District of Columbia hospitals. Also issues such as an analysis of what the region really is as far as the hospitals in the Maryland suburbs of the District of Columbia that are located in Montgomery and Prince George's County and so forth and I think there will be a number of additional analysis [sic] that the staff may want to consider as they look at this issue and I think that I would like to put forward that request and ask the staff if they would consider that.\\n[Chairman Malouf]: Smokey [Mr. Stanton], did you get the petition in writing?\\nMr. Stanton: Yes, I did.\\nThe request was unanimously approved.\\nSuburban sued the Commission, alleging that, instead of merely receiving legal advice in the closed meeting, the Commission violated Maryland's Open Meetings Act by discussing substantively the Schneider Amendment, the proposed OHS Section, and a petition process to assess the need for additional OHS programs.\\nQuestions Presented\\nSuburban presents three questions for our review, which we have re-worded and consolidated:\\n1. Must Suburban demonstrate that Commission members knew they were violating the Open Meetings Act . to maintain an enforcement action under State Government Article \\u00a7 10-510?\\n2. Did Suburban satisfy its burden of demonstrating sufficient grounds to avoid summary judgment?\\nWe answer the first question in the negative, and the second in the positive. Accordingly, we shall reverse.\\nDiscussion\\nA trial court shall enter judgment in favor of or against a party moving for summary judgment if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. Md. Rule 2 \\u2014 501(e). When considering a summary judgment motion, a trial court makes no findings of fact. Dobbins et ux. v. Washington Suburban Sanitary Commission, 338 Md. 341, 345, 658 A.2d 675 (1995). The trial court decides whether a genuine issue of material fact exists to prevent the entry of summary judgment. Fearnow v. Chesapeake & Potomac Telephone Co. of Maryland, et al., 104 Md.App. 1, 48, 655 A.2d 1 (1995), aff'd in part and rev'd in part, 342 Md. 363, 676 A.2d 65 (1996). When reviewing a trial court's decision to grant a summary judgment motion, we examine \\\"simply whether the trial court was legally correct.\\\" Beatty v. Trailmaster Products, Inc., et al., 330 Md. 726, 737, 625 A.2d 1005 (1993) (citing Heat & Power v. Air Products, 320 Md. 584, 591, 578 A.2d 1202 (1990)). An appellate court ordinarily should review a grant of summary judgment only on the grounds relied upon by the trial court. Maryland Rule 8-131(a); Blades v. Woods, 338 Md. 475, 478, 659 A.2d 872 (1995); Gross et ux. v. Sussex Inc., et al., 332 Md. 247, 254 n. 3, 630 A.2d 1156 (1993).\\nA grant of a summary judgment motion is appropriate only when the moving party meets a two-part test. Fearnow, 104 Md.App. at 48, 655 A.2d 1 (citing Gross, 332 Md. at 255, 630 A.2d 1156).\\nThe movant for summary judgment must (i) clearly demonstrate the absence of any genuine issue of material fact, and (ii) demonstrate that it is entitled to judgment as a matter of law.\\nTo satisfy the first part of this test, the moving party must present the material facts necessary to obtain judgment and demonstrate that there is no dispute as to any of those facts. A material fact is one that will \\\"somehow affect the outcome of the case.\\\" It is the burden of the movant to \\\"identify the portions of the record that 'demonstrate the absence of a genuine issue of material fact.' \\\"\\nOnce the movant makes this showing, the burden shifts to the non-moving party to identify \\\"with particularity the material facts that are disputed.\\\" Md. Rule 2-501(b). Neither general allegations of facts in dispute nor a mere scintilla of evidence will suffice to support the non-movant's position; there must be evidence upon which the jury could reasonably find for the non-moving party. In other words, the opposing party \\\" 'must do more than simply show there is some metaphysical doubt as to the material facts.' \\\" In ruling on a motion for summary judgment, the court must consider the motion and response submitted by the parties in a light most favorable to the non-moving party. Thus, summary judgment is inappropriate where the evidence is susceptible to more than one inference. Furthermore, the non-moving party \\\" 'is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists.' \\\"\\nFearnow, 104 Md.App. at 48-50, 655 A.2d 1 (citations omitted).\\nI.\\nIn an action pursuant to the Open Meetings Act, the public body is presumed to have complied with the Act, and the complainant has the burden of proving the violation. S.G. \\u00a7 10 \\u2014 510(c). Suburban argues that the Commission improperly conducted deliberations and debate in its closed \\\"executive session\\\" on November 11, 1997. Maryland's Open Meetings Act provides, in pertinent part, that a public body may meet in closed session to \\\"consult with counsel to obtain legal advice,\\\" S.G. \\u00a7 10-508(a)(7). State Government \\u00a7 10-508(b) states that \\\"[a] public body that meets in closed session under this section may not discuss or act on any matter not permitted under subsection (a) of this section.\\\" \\\"The exceptions in subsection (a) of this section [allowing closed meetings] shall be strictly construed in favor of open meetings of public bodies.\\\" S.G. \\u00a7 10-508(c).\\nBefore a public body meets in a closed session, \\\"the presiding officer shall: (i) conduct a recorded vote on the closing of the session; and (ii) make a written statement of the reason for closing the meeting, including a citation of the authority under this section, and a listing of the topics to be discussed.\\\" S.G. \\u00a7 10 \\u2014 508(d)(2).\\nII.\\nThe Commission contends that Suburban cannot maintain an action under S.G. \\u00a7 10-510 because Suburban cannot prove that the Commission \\\"willfully\\\" failed to comply with the Open Meetings Act. State Government \\u00a7 10-510 provides that, if a public body fails to comply with \\u00a7 10-508, a circuit court, upon petition of an adversely affected person, may consolidate proceedings, issue an injunction, or determine the applicability of the Open Meetings Act to a public body. In addition, the court may, \\\"if the court finds that a public body willfully failed to comply with \\u00a7 10-505, \\u00a7 10-506, \\u00a7 10-507, or \\u00a7 10~509(c) of this subtitle and that no other remedy is adequate, declare void the final action of the public body.\\\" S.G. \\u00a7 10-510(d)(4). The Commission suggests that \\\"willfully\\\" is equivalent to \\\"knowingly\\\" and that only a conscious decision to violate the statute merits the voiding of a public body's actions.\\nThe Commission's arguments fail in several respects. First, the requirement that a public body must have acted \\\"willfully\\\" only applies to attempts to void the public body's acts. The circuit court interpreted \\\"willfully\\\" as \\\"knowingly,\\\" and then found that the Commission had therefore not willfully violated S.G. \\u00a7 10-505, 506, 507, or 509(c). Because of this conclusion, the trial court refused the discretionary option, offered to it by S.G. \\u00a7 10-510(d)(4), of voiding the Commission's actions.\\nState Government \\u00a7 10-510(d)(2), (3), (5), and (6), however, which provide for injunctive relief, declaratory relief, attorneys' fees, and \\\"any other appropriate relief,\\\" respectively, do not require the same finding that the public body \\\"willfully failed\\\" to comply with the Open Meetings Act that \\u00a7 10-510(d)(4) requires. See Wesley Chapel Bluemount Association, et al. v. Baltimore County, 347 Md. 125, 149, 699 A.2d 434 (1997). In addition to being apparent on the face of \\u00a7 10-510(d), this is evident from the public policy reality that enjoining a public body's action, or issuing a declaratory judgment action, will be less disruptive and more conducive to a balance between citizen complaints and governmental efficiency than would be voiding the public body's actions. Simply put, under the Open Meetings Act, injunctions and declaratory relief are available for a lower threshold of violation than that needed to void a public body's action.\\nThe trial court quoted \\u00a7 10-510(d)(4) and then stated:\\nThe Court may not void the [Commission's] decision unless it finds that the violation of the Open Meetings Act was willful which has been defined as a voluntary, intentional violation of a known legal duty, such that the \\\"violator knew that what he or she was doing was illegal.\\\" Reisch v. State, 107 Md.App. 464, 477, 482 [668 A.2d 970] (1995). This requires the Maryland Health Resources Planning Commission to have had knowledge of the legal requirement and a specific intent to disobey the law. Reisch at 476 [668 A.2d 970]. Therefore, even if the Court accepts all of Suburban Hospital's allegations as fact, Plaintiff [Suburban] failed to demonstrate that a willful violation of the Act occurred. Consequently, the Court in applying the Act to the present facts can not void the decision by the Commission.\\nThe trial court then discussed the administrative remedies potentially available to Suburban, and proceeded to grant the Commission's motion for summary judgment. The trial court, however, never discussed Suburban's requests for attorneys' fees, declaratory relief, or injunctive relief, nor did it acknowledge that, under the Open Meetings Act, those remedies do not require the \\\"willful\\\" standard used for requests to void a public body's action. The trial court's finding that Suburban had not willfully violated the Open Meetings Act, even if correct, was not sufficient by itself to allow the court to grant summary judgment as to Suburban's requests for attorneys' fees and injunctive and declaratory relief. Without additional findings by the trial court that the Commission did not violate the Act at all, Suburban's requests for these modes of relief enable it to avoid summary judgment on those issues. In other words, the circuit court, in its Order, appears to have applied the more stringent \\\"willful\\\" standard to all of Suburban's desired remedies, not just to the request to void the Commission's actions.\\nWe note that summary judgment in a declaratory judgment action is \\\"the exception rather than the rule.\\\" Nationwide Mutual Insurance Co. v. Scherr, et al., 101 Md. App. 690, 695, 647 A.2d 1297 (1994), cert. denied, 337 Md. 214, 652 A.2d 670 (1995) (quoting Loewenthal v. Security Insurance Co. of Hartford, 50 Md.App. 112, 117, 436 A.2d 493 (1981)). For instance, in a declaratory judgment action concerning a contract dispute, summary judgment may be granted when there is no dispute as to the terms of the documents in issue, but only disagreement as to the legal interpretation of those terms. Nationwide, 101 Md.App. at 695, 647 A.2d 1297. In the present case, however, the parties dispute both the legal interpretation of the term \\\"willfully\\\" in the Open Meetings Act and the factual events that may or may not have constituted a violation of the Act.\\nSecond, \\\"willfully,\\\" in this context, is more accurately defined as \\\"non-accidentally.\\\" State Government \\u00a7 10-510, as just discussed, provides for judicial enforcement of several remedies against a public body when the Open Meetings Act is violated. In contrast to S.G. \\u00a7 10-510, S.G. \\u00a7 10-511 provides that a court may impose a civil penalty of up to $100 on a public body member only if the member \\\"willfully participates in a meeting of the body with knowledge that the meeting is being held in violation of [the Act].\\\" (Emphasis added). Members of a public body may only incur a civil penalty if they acted willfully and knew that they were violating the Act. Section 10-511 imposes individual liability on members of the body, a more personally intrusive penalty than the general curative remedies established by \\u00a7 10-510 for the public body as a whole. It is therefore consistent that \\u00a7 10-511 requires a higher standard of violative conduct than \\u00a7 10-510, which has no scienter requirement.\\nIf we were to read \\u00a7. 10-511 as prohibiting and punishing the same conduct that is violative of \\u00a7 10-510, the \\\"with knowledge\\\" phrase in \\u00a7 10-511 becomes mere surplus-age. Viewing terms as surplusage is a disfavored method of statutory construction. Mayor and City Council of Baltimore et al. v. Hackley, et al., 300 Md. 277, 283, 477 A.2d 1174 (1984). Statutes should be read \\\"so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.\\\" Montgomery County v. Buckman, 333 Md. 516, 523-524, 636 A.2d 448 (1994) (citations omitted). Reading \\u00a7 10-510 and \\u00a7 10-511 with regard for each term, the different phrasing in the two sections implies that they present different standards.\\nThe legislative decision to impose personal penalties on members of public bodies only if those members knew they were violating the Act is consistent with the Act's policy goals. The Act observes that it is \\\"essential to the maintenance of a democratic society\\\" that public business is performed in public and that citizens are able to observe the deliberations and decision-making of public officials. S.G. \\u00a7 10-501(a). Keeping government operations accessible and visible to the public ensures the accountability of the government to the citizens and increases the faith of the public in their representatives. S.G. \\u00a7 10-501(b). To support these goals, the policy of the State is to provide the public with adequate notice and opportunity to observe meetings of public bodies. S.G. \\u00a7 10-501 (c).\\nThe Act is not primarily a means to impose strictures on individual members of public bodies; it exists, rather, to guide the procedural practice of public bodies as complete entities responsible to and available to the public. When a public body violates the Act, the Act permits a court to enjoin or void the actions the public body took at the impermissible meeting. These remedies are not in response to the content of the actions taken at the meetings, but to the procedural steps from which the actions emanated. It is the public body as a whole that is being regulated. It is consistent, therefore, that only when the members of the public body display scienter or evil intent is it appropriate for a court to impose personal penalties on them.\\nThe circuit court, as quoted above, stated that it could not void the Commission's decision unless it found that the violation of the Open Meetings Act was willful, and stated further that willful \\\"has been defined as a voluntary, intentional violation of a known legal duty, such that the 'violator knew that what he or she was doing was illegal.' This requires the . Commission to have had knowledge of the legal requirement and a specific intent to disobey the law.\\\" (Citing Reisch v. State, 107 Md.App. 464, 476-477, 668 A.2d 970 (1995), cert. denied, 342 Md. 332, 675 A.2d 993 (1996)).\\nIn Reisch, we reversed a circuit court conviction because the State failed to prove a willful and knowing violation of a home improvement licensing law. We stated there that,\\n[notwithstanding appellant's admitted failure to obtain a home improvement license, we agree that the evidence was insufficient to sustain appellant's conviction. We rest our conclusion on the State's failure to establish, beyond a reasonable doubt, that Reisch acted knowingly and wilfully. Based on express statutory language, we reject any claim that the terms \\\"knowingly and wilfully\\\" are mere surplus-age or that the home improvement provisions in issue impose strict criminal liability. We explain.\\nThe Legislature specifically predicated a criminal penalty for violation of Maryland's home improvement laws on a knowing and wilful violation, referencing that language in several key places in the home improvement laws....\\nId. at 474, 668 A.2d 970 (emphasis added; citations omitted). In Reisch we did not specifically differentiate \\\"willfully\\\" from \\\"knowingly;\\\" the terms were used conjunctively, and not separately, in the statute pertinent to that case. That licensing law was intended to punish violations by individual contractors and imposed criminal penalties. The Open Meetings Act provides only for civil penalties.\\nThe parties point to no interpretation by a Maryland appellate court of the term \\\"willfully\\\" as used in S.G. \\u00a7 10-510. In Wesley Chapel Bluemount Association, et al., 347 Md. at 149, 699 A.2d 434, the Court of Appeals observed that a circuit court's order voiding a county zoning board's actions was inappropriate because the circuit court made no findings that the public body \\\"willfully failed to comply with \\u00a7 10-505 . and that no other remedy is adequate.\\\" S.G. \\u00a7 10-510(d)(4). The Court did not, however, define \\\"willfully.\\\"\\nSuburban cites Stanton v. Machiz, 183 F.Supp. 719, 725 (D.Md.1960), in which the District Court stated:\\nThe meaning of the word \\\"willful\\\" depends upon the context in which it appears; and particularly the kind and nature of the statute. Where the term is used in connection with the statute defining criminal conduct, the word \\\"willful\\\" usually requires something more than deliberate and intentional as opposed to accidental and includes an intent of a wrongful or evil purpose. But where the statute relates to a civil rather than a criminal penalty the meaning of the word connotes only voluntary and intentional action as contrasted with accidental. Thus, in United States v. Illinois Central R. Co., 303 U.S. 239, 58 S.Ct. 533, 535, 82 L.Ed. 773 (1938), where the statute imposed a penalty on a common carrier for failure to water livestock after thirty-six hours, it was held that the word \\\"willful\\\" did not require proof of an evil intent but that it is sufficient if the failure to act was either intentional or plainly indifferent to the requirements of the statute. [Emphasis added; citations omitted.]\\nSee American Surety Co. of New York v. Sullivan, 7 F.2d 605, 606 (2nd Cir.1925).\\nIn Kansas v. Palmgren, 231 Kan. 524, 646 P.2d 1091, appeal dismissed, 459 U.S. 1081, 103 S.Ct. 562, 74 L.Ed.2d 927 (1982), the Kansas Supreme Court interpreted the Kansas Open Meetings Law's provision that a civil penalty could be imposed only if a public body member \\\"knowingly violates\\\" the law. Observing that Kansas's Open Meetings Law \\\"is remedial in nature and therefore subject to broad construction in order to carry out the stated legislative intent,\\\" the Kansas Supreme Court held that a knowing violation was one caused by willful or purposeful conduct and did not require actual knowledge of wrongdoing. Palmgren, 231 Kan. at 531, 646 P.2d 1091. The Kansas Supreme Court therefore imposed a construction even broader than the one we choose, because the court held that \\\"knowingly\\\" did not mean actual knowledge of wrongdoing, and in the present case we are assigning the same definition to the term \\\"willfully.\\\"\\nMaryland's Open Meetings Act's civil penalty provision differs from the Kansas law by requiring \\\"knowledge that the meeting is being held in violation of [the Act]\\\" only before individual liability can be established. S.G. \\u00a7 10-511. Unlike \\u00a7 10-511, Maryland's provision for voiding a public body's act does not require egress knowledge of a violation. S.G. \\u00a7 10-510(d)(4).\\nIn light of the public policy expressed in the statute and the language of the statute, we conclude that \\\"willfully\\\" as used in S.G. \\u00a7 10-510 does not require knowledge that the meeting actually violates the Open Meetings Act, but instead refers to intentional conduct. We also note that the Commission's Executive Director, James Stanton, testified in his deposition that he was well aware of the Open Meetings Act's require ments. Even without scienter, an argument could be made that he therefore made a \\\"knowing\\\" violation of the Act because he knew the Act's requirements and nevertheless allegedly persisted with the policy discussion.\\nIII.\\nIn order to survive the Commission's motion for summary judgment, Suburban, as the non-moving party, must demonstrate that, viewing the facts in the light most favorable to Suburban, the Commission is not entitled to judgment as a matter of law. Suburban opposed the summary judgment motion by referring to the deposition testimony of Richard McAlee, an attorney representing Holy Cross Hospital.\\nMr. McAlee testified that Commissioner Ruth Spector called him the day after the Commission's November 11,1997 meeting and told him that, during the closed session, the Commissioners discussed a proposal for a petition process for hospitals wishing to amend the State health plan. Adopting this petition process would allow the proposed OHS Section to be approved immediately, without change. Mr. McAlee said Commissioner Spector told him that the discussion was conducted mainly by three commissioners and Mr. Stanton, the Commission's Executive Director. Mr. McAlee described it as a \\\"discussion of the need for cardiac surgery in Montgomery County and how to deal with that issue as a policy matter.\\\" According to Mr. McAlee's account of Commissioner Spector's statements, the Commission's attorney was not an active participant in this conversation and the focus was deliberative, rather than consultative.\\nMr. Stanton gave deposition testimony stating that such a policy discussion did not occur in the closed meeting and that commissioners' comments in the meeting were in the form of questions to counsel. He also stated, however, that Mr. Ryland, the Commission's attorney, only spoke for four or five minutes during the thirty-minute meeting. Commissioner Spector's affidavit did not discuss the events or the substance of the closed meeting; it simply denied that she discussed with Mr. McAlee what had occurred in the closed meeting.\\nThe Commission contends that Mr. McAlee's testimony about Commissioner Specter's statements is inadmissible hearsay. Md. Rule 5-803 provides that statements by a party opponent, offered against that opponent, are not excluded by the hearsay rule, even though the declarant is available as a witness.\\nAdmissions are the 'words or acts of a party-opponent, or of his predecessor or representative, offered as evidence against him.' Admissions are considered to be substantive evidence of the facts admitted. A party may offer into evidence against his opponent anything said by him as long as it illustrates some inconsistency with the facts now asserted by the opponent in pleading or in testimony. Admissions do not have to be against the speaker's interest when made.... [T]he speaker need not be, and rarely is, unavailable.\\nAetna Casualty & Surety Co. v. Kuhl, 296 Md. 446, 455, 463 A.2d 822 (1983) (citations omitted); Kirkland v. State, 75 Md.App. 49, 57, 540 A.2d 490, cert. denied, 313 Md. 506, 545 A.2d 1344 (1988) (\\\"[A] party is free to introduce anything in the nature of an admission an opposing party has said or done which is relevant to the case.\\\").\\nAmong the admissions admissible under Md. Rule 5-803(a) are (1) the party's own statement, in either an individual or representative capacity; (2) a statement of which the party has manifested an adoption or belief in its truth; (3) a statement by a person authorized by the party to make a statement concerning the subject; (4) a statement by the party's agent or employee made during the agency or employment relationship concerning a matter within the scope of the agency or employment; or (5) a statement by a co-conspirator of the party in furtherance of the conspiracy.\\nAs a member of the Commission who was present at the meeting at issue, Commissioner Speetor's statements, as allegedly recounted to Mr. McAlee, are certainly relevant to the case. If believed, they could establish a prima facie case for a violation of the Open Meetings Act by the Commission as a whole and by the members individually. Under Md. Rule 5-803, they are admissible as party admissions.\\nBecause we must consider the motion and response in the light most beneficial to Suburban, for the purposes of this appeal we must consider Mr. McAlee's testimony to be true. Findings of fact and credibility determinations are not to be made. The crucial issue then becomes whether this testimony is sufficient to defeat the Commission's motion for summary judgment, i.e., whether the Commission's discussion exceeded the rationale allowed by S.G. \\u00a7 10-508(a)(7) for a closed meeting: \\\"consult[ing] with counsel to obtain legal advice.\\\"\\nWe conclude that, viewing Commissioner Spector's affidavit and the testimony of Mr. McAlee and Mr. Stanton in the light most favorable to Suburban, the discussions Mr. McAlee described exceed consultation to obtain legal advice. A fact-finder could choose to believe Mr. Stanton and Commissioner Specter, and disbelieve Mr. McAlee, but that is not the issue we face. Suburban's pleadings and deposition testimony were sufficient to overcome the Commission's Motion for Summary Judgment. As noted above, the circuit court did not resolve Suburban's requests for declaratory and injunctive relief.\\nIV.\\nThe circuit court concluded its Memorandum Opinion by stating:\\nFurthermore, even if the Maryland Health Resources Commission violated the Open Meetings Act, an alternative and suitable remedy is available to Suburban Hospital. Private entities not satisfied with the public policy derived from legislative forums are permitted to petition the appropriate Commission to amend their actions. Here, the facts indicate that Suburban Hospital failed to petition the Commission to amend their plans resulting from the November 11, 1997 meeting. Consequently, even if the Court found a willful violation of the Open Meetings Act, it could not void the final actions of the Commission because an alternative remedy is available to Suburban Hospital.\\nThe Open Meetings Act does not require an aggrieved party to petition the public body in question to correct its allegedly illegal conduct. The Act merely states that \\\"[t]his section does not affect or prevent the use of any other available remedies,\\\" \\u00a7 10 \\u2014 510(a)(3) (emphasis added); it does not require the use of other available remedies. Section 10-510(d)(4) states that \\\"[a court may,] if the court finds that a public body willfully failed to comply with \\u00a7 10-505, \\u00a7 10-506, \\u00a7 10-507, or \\u00a7 10-509(c) of this subtitle and that no other remedy is adequate, declare void the final action of the public body.\\\" (Emphasis added.) This section grants the court the ability to decide whether other remedies are adequate; it does not bar plaintiffs from bringing Open Meetings Act issues before the court. We note, as we did above, that \\u00a7 10-510(d)(4) applies only to the voiding of public body actions, and not to injunctions, declaratory relief, or attorneys' fees. Even were a court to find that adequate alternative remedies existed, the court could still grant the three latter forms of relief, all of which Suburban has requested.\\nIt is insufficient, however, to assign parties aggrieved by illegal actions of public bodies the task of asking those public bodies to redress their own actions. The Open Meetings Act and other statutes that detail proper governmental procedures exist so that parties with legitimate grounds for complaint can ask the courts to enjoin illegal acts or declare those acts to be illegal and/or void. If the Commission violated the Open Meetings Act, its actions were illegal, and the issue was improperly characterized in the Memorandum Opinion as mere dissatisfaction \\\"with the public policy derived\\\" from the Commission's actions. Petitioning a public body that has just committed an illegal act to rectify that act will not always, and perhaps rarely, be an adequate alternative remedy.\\nJUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.\\nAPPELLEE TO PAY COSTS.\\n. The exception to this rule is that, when \\\"the alternative ground is one upon which the circuit court would have had no discretion to deny summary judgment, summary judgment may be granted for a reason not relied upon by the trial court.\\\" Davis v. Goodman et al., 117 Md.App. 378, 395 n. 3, 700 A.2d 798 (1997) (citing Blades, 338 Md. at 478, 659 A.2d 872). Only when the motion is based upon a purely legal issue may an appellate court affirm on a ground not relied upon by the trial court. Davis, 117 Md.App. at 395 n. 3, 700 A.2d 798.\\n. S.G. \\u00a7 10-508(a) contains fourteen valid motives for a public body to meet in closed session; only legal consultation is relevant to this case.\\n. The Commission apparently did not perform the second of these requirements. Administrative violations of this type subject a public body's actions to the possibility of injunctive or declaratory relief, but they do not render them susceptible to voiding. S.G. \\u00a7 10-510(d).\\n. The Commission attempts to explain the different standards of \\u00a7 10-510 and \\u00a7 10-511 by arguing that the phrase \\\"participates in a meeting\\\" in the latter section does not refer to attendance at the meeting, but only to some greater level of participation in the meeting. The Commission does not endeavor to define this \\\"more than presence\\\" standard for \\\"participates\\\". In Board of County Commissioners of St. Mary's County v. Guyther, et al., 40 Md.App. 244, 246, 389 A.2d 1372 (1978), we held that, for both municipal and private corporations, \\\"a person present but incompetent to act because of disqualification [e.g. because of a conflict of interest] cannot serve as a constituent part of a quorum.\\\" In other words, the disqualified board member was disqualified not just for voting purposes but also for the purpose of being counted to establish a quorum. This reasoning suggests'That attendance is participation. The Commission argues that this conclusion \\\"would force individual members of a public body to give up their right to be present at closed sessions they believe are improper.\\\" (Emphasis in original). Under the Open Meetings Act, not only do members of a public body have no right to be present at improper closed sessions, but it would appear that they have a duty not to participate, and therefore, not to attend.\\n. We have recognized that for the purposes of the Maryland Wiretap Act the \\\"term 'willfully' means 'more than intentional or voluntary. It denotes either an intentional violation or a reckless disregard of a known legal duty.' \\\" Fearnow, supra, 104 Md.App. at 23-24, 655 A.2d 1 (emphasis added) (citing Earley v. Smoot, 846 F.Supp. 451, 453 (D.Md. 1994), and Benford v. ABC, 649 F.Supp. 9, 10 (D.Md. 1986)). We strictly limited that definition's application, however, to cases involving the Maryland Wiretap Act, and stated that the conclusion was driven by federal criminal caselaw. Indeed, \\\"[ojur holding should not be read as an abrogation, broadening, or modification of how Maryland courts have previously construed wilfulness in other legal contexts.\\\" Fearnow, at 23-24, n. 20, 655 A.2d 1. The Commission conceded that it has a legal duty to comply with the Open Meetings Act.\\n. As noted above, the Court in Wesley Chapel used a different standard to review requests for injunctive relief and requests to void the public body's actions, because \\u00a7 10-510(d)(4) uses \\\"willfully.\\\"\\n. Maryland common law once limited vicarious admissions to those made by a party's employee who was authorized to make admissions on behalf of the party. Burkowske v. Church Hospital Corp., 50 Md.App. 515, 519-521, 439 A.2d 40 (1982). In 1991, however, the Court of Appeals held that \\\"the traditional common law rule on admissions by agents has proven to be too restrictive and unsound.\\\" B & K Rentals and Sales Co., Inc. v. Universal Leaf Tobacco Co. et al., 324 Md. 147, 158, 596 A.2d 640 (1991). The Court therefore decided \\\"to join the substantial majority of states adopting the principle embodied in F.R.E. 801(d)(2)(D).\\\" Id. at 153, 596 A.2d 640.\\nHenceforth, the hearsay rule does not operate to exclude a declaration that is \\\"offered against a party and is . a statement by a party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. F.R.E. 801(d)(2)(D). There is no requirement that the agent have \\\"speaking authority\\\" or that the agent's statement was part of the res gestae.\\nId. at 161-162, 596 A.2d 640. The Commission's response in this case has been that the discussion at the closed meeting was limited to its stated purpose of consulting with counsel for legal advice and not to any limited scope of agency related to Commissioner Spector.\\n. In related provisions, the Act states, \\\"A person may file a petition under this section without seeking an opinion from the State Open Meetings Law Compliance Board.\\\" \\u00a7 10-510(e)(l). The Act requires complaining parties to file their complaints within 45 days of the alleged violation or within 45 days after the public body includes in the minutes of an open session information pertaining to a previous closed session at which a violation allegedly occurred. \\u00a7 10-510(b)(2),(3). If the limitations period were not tolled, this brief time period would make a requirement of re-petitioning the public body onerous.\"}"
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