City of Bowie, Maryland v. MIE, Inc. (Ct. of Appeals)

Filed May 4, 2007. Opinion by Judge Glenn T. Harrell, Jr..

From the official headnote:

REAL PROPERTY - RESTRICTIVE COVENANTS - THE STANDARD FOR DETERMINING IF A RESTRICTIVE COVENANT REMAINS VALID IS WHETHER, AFTER THE PASSAGE OF A REASONABLE AMOUNT OF TIME, A CHANGE IN CIRCUMSTANCES HAS OCCURRED, SINCE THE COVENANTS’ EXECUTION, RENDERING THE PURPOSE OF THE COVENANT OBSOLETE.

REAL PROPERTY - RESTRICTIVE COVENANTS - WAIVER - THE ASSERTING PARTY BEARS THE BURDEN OF PROVING WAIVER BY ACQUIESCENCE DEFENSE.

ZONING - A MUNICIPALITY WITHOUT ZONING AUTHORITY DOES NOT ENGAGE IN ILLEGAL CONTRACT ZONING WHEN IT ASSERTS LIMITATIONS ON THE USE OF LAND BASED ON A RESTRICTIVE COVENANT IT HAS THE RIGHT TO ENFORCE.

CIVIL PROCEDURE - FAILURE TO JOIN NECESSARY PARTIES - THE NONJOINDER OF AN ASSERTEDLY NECESSARY PARTY MAY BE EXCUSED WHEN THAT PARTY FAILS TO JOIN THE LITIGATION AS A PARTY DESPITE ITS KNOWLEDGE OF THE LAWSUIT POTENTIALLY AFFECTING ITS INTERESTS,
VERIFIED BY THE FACT THAT THE PARTY TESTIFIES AT TRIAL.

In an appeal by Bowie from an unreported Court of Special Appeals decision, the Court of Appeals REVERSED the appellate decision below and REMANDED to that court with direction to affirm the original judgment of the trial court, which had upheld the validity of covenants affecting a parcel of real property in Prince George's County.

(synopsis to follow)

The opinion is available in PDF format.

Hunter v. State (Ct. of Appeals)

Filed March 16, 2007--Opinion by Judge Dale Cathell (JJ Battaglia and Harrell dissenting).

Appellant was convicted of one count of first degree burglary, for which he was sentenced to fifteen years in prison. In an unreported opinion, the Court of Special Appeals affirmed the judgment of the trial court. In a writ of certiorari, the petitioner presented two questions for review:

1) In a criminal trial, is it error for the judge to allow the prosecutor to ask the defendant whether the police witnesses were lying?

2) If the answer to the preceding question is yes, did the Court of Special Appeals err in holding that the error was harmless, particularly where the underlying facts were contested, the jury sent out notes suggesting that they were struggling with some of the factual issues, and the prosecutor's closing argument augmented the prejudicial effect of the error?

In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded to a witness' testimony are solely within the province of a jury. Generally, the rule is that it is error for the court to permit to go the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying. Therefore, it is the well established law of this State that issues of credibility and the appropriate weight to give to a witness's testimony are for the jury, and it is impermissible, as a matter of law, for a witness to give an opinion on the credibility of another witness.

At trial, petitioner was asked five "were-they-lying" questions. These questions were impermissible as a matter of law because they encroached on the province of the jury by asking the petitioner to judge the credibility of the detectives and weigh their testimony, i.e., he was asked: "And the detective was lying?" The questions also asked petitioner to stand in place of the jury by resolving contested facts. Moreover, the questions were overly argumentative. They created the risk that the jury might conclude that, in order to acquit petitioner, it would have to find that the police officers lied. The questions were further unfair because it is possible that neither the petitioner nor the police officers deliberately misrepresented the truth. These questions forced petitioner to choose between answering in a way that would allow the jury to draw the inference that he was lying or taking the risk of alienating the jury by accusing the police officers of lying. Therefore, the trial court erred in allowing the State to ask petitioner "were-they-lying" questions. When prosecutors ask "were-they-lying" questions, especially when they ask them of a defendant, they, almost always, will risk reversal.

Once error is established, the burden is on the State to show that it was harmless beyond a reasonable doubt. Here, the possible prejudicial effect of the "were-they-lying" questions is demonstrated by the number and combination of the questions themselves, the repeated emphasis on them during the State's closing argument, and, most importantly, the jury's behavior during its deliberations. During deliberation, the jury sent four notes to the trial court, which could have been related to concerns the jury had about the truthfulness of petitioner's testimony. Consequently, the Court is unable to say, beyond a reasonable doubt, that the jury was not effected by the "were-they-lying" questions. Therefore, the trial court's error in allowing the questions was not harmless.

The full opinion is available in PDF.

Property and Casualty Insurance Guaranty Corporation v. Yanni (Ct of Appeals)

Filed March 15, 2007. Opinion by Judge Lynne Battaglia, joined by Judge Glenn T. Harrell, Jr. as to the immunity issue only. Dissenting opinion by Judge Alan Wilner (retired, specially assigned).

From the opinion's headnote:

WORKERS’ COMPENSATION - INSURER - COVERED CLAIM - IMMUNITY
The Property and Casualty Insurance Guaranty Corporation (“PCIGC”) sought review of the Circuit Court for Montgomery County’s entry of summary judgment for Peter L. Yanni in which the Circuit Court upheld the Workers’ Compensation Commission’s award of late-payment penalties and attorneys’ fees to Yanni for PCIGC’s tardy payment of Yanni’s workers’ compensation award. The Court of Appeals reversed summary judgment for Yanni and held that the penalties should not have been assessed against the PCIGC because it was not an “insurer” for purposes of Section 9-728 of the Labor and Employment Article, and because the late-payment penalties were not part of Yanni’s “covered claims,” as the term is defined in Section 9-301(d) of the Insurance Article. The Court also concluded that, even if the PCIGC were an “insurer,” and the penalties were part of the “covered claim,” it was immune from the assessment of late-payment penalties under the provisions of Section 9-314(a) of the Insurance Article and Section 5-412 of the Courts and Judicial Proceedings Article.

The court's official headnote adequately captures the substance of the majority opinion, but in dissent, Judge Wilner (joined by Cheif Judge Robert Bell) responded that the majority resorts to an overly constrained interpretation to come up with a conclusion at odds with the stated purposes for establishing PCIGC, "to provide a mechanism for the prompt payment of covered claims". Explicit language in the statute drops PCIGC into the shoes of the defaulting insurer, and thus PCIGC is an insurer for the perposes of the statuory scheme. Moreover, since the failure to timely pay the amounts due to Yanni was due to PCIGC's failure to timely pay amounts due under the policy, the penalties most certainly should be deemed as "arise out of" the policy. Finally, the dissent found the reasoning to afford immunity to PCIGC, derived for other cases, inapposite here, where PCIGC was being held accountable for its own failure to comply with the statute's requirement, and to suggest a different channel to seek redress as suggested in the majority opinion, "makes utterly no sense", and for all those reasons, would have affirmed the judgment of the court below.

The opinion is available in PDF format.

Department of Human Resources v. Howard (Ct. of Appeals)

Filed March 13, 2007. Opinion by Judge Glenn T. Harrell, Jr.

The issue facing the Court of Appeals was whether specially assigned retired judges could properly sit with the Court of Special Appeals ("CSA") during the hearing and decision of an appeal in banc. While taking pains to acknowledge the abilities and contributions of specially assigned judges, the court held that only the thirteen incumbent judges of the CSA could participate in the hearing and decision of in banc appeals.

The facts of the underlying appeal are not relevant to the issue before the court. After an appeal to the CSA had been noted and routinely assigned to a three-judge panel, the CSA invited the parties to submit the question at issue to the CSA in banc. In addition to the thirteen incumbent judges of the CSA, two specially assigned judges participated in the hearing and decision of the appeal. Following an eight to seven decision of the CSA, which generated a multiplicity of opinions, the Court of Appeals granted certiorari sua sponte, posing the additional question of the propriety of participation by the specially assigned judges.

In its analysis, the Court of Appeals traced the history of the CSA, examined the statutes creating the court and providing for in banc review, and examined the manner in which in banc review was handled by other courts. The Court of Appeals found that the underlying statute clearly and unambiguously stated that in banc review was to be conducted by "incumbent" judges, being those appointed by the Governor and confirmed by the Senate. Specially assigned judges did not meet this definition, and, therefore, could neither participate in the hearing nor decision of an in banc appeal. This result, the Court of Appeals held, is consistent with the policy reason for in banc review - permitting the incumbent judges of the CSA to control the jurisprudence of the court upon which they sit. The court expressly refused to simply disregard the votes of the specially assigned judges and treat the vote of the incumbent judges as the decision of the CSA. Instead, the decision of the CSA was vacated and the matter remanded for further proceedings.

The opinion is available in PDF format.

Wells Fargo Home Mortgage, Inc. v. Neal (Ct. of Appeals)

Filed: March 13, 2007. Opinion by Judge Glenn T. Harrell, Jr.

The question on appeal was whether a term in a deed of trust generically alluding to HUD regulations limiting the circumstances in which a mortgagee may accelerate and foreclose on an FHA-insured mortgage may be invoked by the mortgagor to enjoin foreclosure.

The Court held that because foreclosure is an equitable remedy, a mortgagee seeking foreclosure is subject to being enjoined from foreclosing by a mortgagor alleging violations of the HUD regulations governing foreclosure. A mortgagor bears the burden of proving that a mortgagee failed to comply with applicable HUD regulations such that he or she is entitled to an injunction.

The case began when the mortgagee initiated foreclosure proceedings. The foreclosure was stayed when the mortgagor filed a separate complaint alleging that the mortgagee had not pursued processes mandated by HUD regulations and designed to prevent foreclosure and mitigate losses. The trial court disposed of the mortgagor's claim on summary judgment, ruling that the HUD regulations were intended for the benefit of HUD enforcement of the FHA mortgage insurance program and did not grant a private cause of action for borrowers.

The mortgagor appealed to the Court of Special Appeals, which vacated the summary judgment and remanded the matter for further proceedings. That opinion is available in PDF format. Although the CSA agreed that the HUD regulations did not afford a private right of action, it opined that private parties may be bound by laws specifically incorporated into contracts executed between them. Therefore, the CSA remanded the case for determination whether the parties had bargained for the provision alluding to the HUD regulations.

The Court of Appeals reversed, concluding that the parties could not have bargained for the term at issue. The substantive provisions of the form deed were not negotiated by either party. Authority presented by the mortgagor even suggested that HUD did not contemplate its regulations to support affirmative state law claims by aggrieved mortgagors.

On the other hand, the Court held, "ample authority" suggests that alleged violations of the regulations may be asserted defensively to halt a foreclosure action. The Court held that because foreclosure is an equitable remedy, a mortgagee seeking foreclosure coming to the court with “unclean hands” is subject to being enjoined from foreclosing by a mortgagor alleging violations of the HUD regulations governing foreclosure. The mortgagor bears the burden of proving that a mortgagee failed to comply with applicable HUD regulations such that he or she is entitled to an injunction.

The opinion is available in PDF format.

Storetrax.com, Inc. v. Gurland (Ct. of Special Appeals)

Filed February 6, 2007--Opinion by Judge Glenn T. Harrell, Jr.

This case considers whether a member of a corporation's board of directors breached his fiduciary duty owed to the corporation when he, removed as an employee of the corporation, filed suit against the corporation in order to enforce severance pay provisions of his employment agreement, pursued summary judgment b y default after the corporation failed to file a timely answer, and sought to enforce his money judgment, over the corporation's opposition, by attaching the bank account of the corporation . The Circuit Court for Montgomery County held that the board member did not breach his fiduciary duty. The Court of Special Appeals affirmed.

Gurland was a member of the board of directors an d an officer of Storetrax.com, Inc. After the termination of Gurland's employment as an officer, and a letter from Gurland to the board of directors indicating that a lawsuit would be filed if the matter of severance pay was not resolved before a date certain, Gurland filed suit seeking severance payment under the terms of an employment agreement. Through no fault of either party, the summons, complaint, and accompanying motion for summary judgment was not delivered timely to the corporation by its resident agent. When the corporation did not respond to the complaint or motion, summary judgment by default was entered against the corporation. Ten days later, Gurland enforced the judgment entered in his favor by filing a petition for writ of attachment.

In its extensive summary of the opinion, the Court stated:

It is well-settled that directors of a corporation owe a fiduciary duty to the corporation and its stockholders. This fiduciary relationship generally obligates directors of a corporation to act in the general interest of the corporation, and not for their individual benefit. Situations may arise, however, where a corporate director, despite the requirement that a director adhere strictly to his or her fiduciary obligations, may proceed with an individual plan of action even though the director's interests conflict directly with those of the corporation. When such a situation arises, a director may find "safe harbor" by disclosing to the corporation the conflict of interest and pertinent facts surrounding the conflict so that a majority of the remaining disinterested shareholders or directors may take action to protect the corporation's financial interests.

Under the circumstances of the present case, Gurland notified sufficiently Storetrax of the imminence of the filing of a lawsuit such that he may claim the protections of the "safe harbor" annunciated above. Respondent delivered to Storetrax on 11 December a letter outlining in detail his claimed entitlement to severance benefits under the termination provisions of the employment agreement. In this letter, Gurland stated specifically that "[i]f the issue remain[ed] unresolved as of [21 December 2001]," he would instruct his attorney to file suit in order to enforce the severance provisions of the employment agreement. This 11 December letter indicated unambiguously that litigation was imminent, and set a clear deadline for which action on the part of Storetrax's board of directors was required to avert suit. Storetrax engaged counsel, responded by letter to Gurland's claims, and otherwise braced for litigation as a result of the 11 December 2001 letter. There is no evidence in the record that Gurland knew that Storetrax had no actual knowledge of the lawsuit at the time he pressed for summary judgment. Nor is there any evidence that Gurland implemented insider information in pursuing his claims, or used his position as director to his advantage. To the contrary, every action taken by Gurland was entirely according to the applicable the Maryland Rules.

There are no general rules of law grounded on a director's fiduciary relationship with a corporation forbidding the director from becoming a creditor of that corporation, or otherwise enforcing his or her claims against it. As a creditor, he or she ought to have the same rights to enforce that claim as any other creditor. As such, Gurland acted within his rights when he filed a petition for writ of attachment at the earliest permitted opportunity after entry of summary judgment by default.

Nor was it a continuing breach of Gurland's fiduciary duties for him to refuse to relinquish voluntarily the garnishment in opposing the corporation's efforts to set aside the judgment. The mere fact that Gurland was a director of the corporation does not impose upon him a legal duty to acquiesce to the demands of the corporation which are adverse to his individual financial interests.

In addition, in what it termed "A Nod to Choice of Law Principles," the Court acknowledged that the lower court incorrectly applied Maryland, rather than Delaware, principles of law. However, the Court concluded that the outcome of the case would have been the same since there was no difference between Maryland and Delaware law with respect to the issues of fiduciary duty involved.

The opinion is available in PDF.

Reier v. SDAT (Ct of Appeals)

Issued February 5, 2007 -- Opinion of Judge Glenn T. Harrell, Jr.

Petitioner David Reier, until his termination on 7 October 1996 for asserted misconduct and poor performance, was employed as an assessor in the Carroll County office of the State Department of Assessments and Taxation (SDAT). As an assessor, Reier was responsible for conducting assessments of individual property "accounts" to determine their fair market value for taxation purposes. Reier’s work, like that of all assessors, was subject to audit by supervisors upon its completion. Events leading up to the audit process in the final months of the 1996 assessment cycle lead to Reier’s eventual termination.

In early August 1996, the Assistant Supervisor of Assessments for Carroll County, Lumen Norris, found a stack of 8 to 10 building permits on top of, or otherwise in close proximity to, a filing cabinet designated for the storage of such permits. Shortly after his discovery, Norris brought the misplaced permits to the attention of the Supervisor of Assessments for Carroll County, Larry White. White decided to use the permits as a sampling of Reier’s work for audit purposes. The timeline of the proceeding audit process became the subject of great dispute because of its significance to the determination of the date on which SDAT became aware of the extent of Reier’s poor performance and misconduct. The audit revealed excessive errors in Reier’s work and evidence that he had derogated his duties as an assessor. After the conclusion of the audit and a conference with Reier as to the audit results, White terminated Reier. Reier pursued an administrative appeal of his termination to the Maryland Office of Administrative Hearings (OAH).

The Administrative Law Judge (ALJ) presiding over the first OAH hearing on the matter affirmed the timeliness of the termination, finding that Reier was given notice of his termination within 30 days of the commencement of the investigation in accord with Maryland Code (1993), State Personnel and Pensions Article, § 11-106(b). Reier sought judicial review of the decision in the Circuit Court for Baltimore County, which remanded the case to the OAH for application of the Court of Special Appeals’ interpretation of § 11-106(b) then just announced in Western Correctional Institute v. Geiger, 130 Md. App. 562,747 A.2d 697 (2000) (Geiger I). Aggrieved by the Remand Decision rendered by a different ALJ, Reier again sought judicial review in the Circuit Court, which affirmed the ALJ. On appeal to the Court of Special A ppeals (Reier I), the intermediate appellate court remanded the case to the OAH to apply the yet newer judicial gloss giv en § 11-1 06(b) in the Court of Appeals’ Western Correctional Institute v. Geiger, 371 Md. 125, 807 A.2d 32 (2000)(Geiger II).

The same ALJ undertook this case for a third time and, after rendering factual findings varying as to some key dates from her previous findings regarding when the SDAT was on notice of Reier’s misconduct, determined that more than 30 days had passed since the SDAT became aware of facts sufficient to prompt an investigation into Reier’s job performance. The ALJ ordered that Reier be reinstated and awarded back pay, consisting solely of lost monetary wages. The Circuit Court affirmed Reier’s reinstatement and awarded him benefits as part of his back pay. On appeal by the SDAT, the Court of Special Appeals affirmed Reier’s reinstatement, concluding that the intermediate appellate court’s decision in Reier I and the opinion in Geiger II effectively vacated the factual findings made by the ALJ on the first remand. The appellate court panel, however, concluded that back pay was limited to monetary wages. Dep’t of Taxation v. Reier, 167 Md. App. 559, 893 A.2d 1195 (2006) (Reier II).

The Court of Appeals rejected the SDAT’s arguments that the findings of fact made by the ALJ on the first remand, and relied upon by the Court of Special Appeals in Reier I, could not be disturbed under the doctrine of the law of the case. The Court noted that the doctrine, which prevents par ties from re-litigating issues already decided by a higher tribunal, is generally invoked only for decided questions of law, rather than pure questions of fact. Thus, because the ALJ upon the second remand revised only her findings of fact, which had not been relied upon by the intermediate appellate court in any event, the doctrine of the law of the case did not apply here . Instead, the revised factual findings were determined to be within the ambit of the mandate and opinion of Reier I, which had requested a clarification of certain key facts made more significant in light of the new interpretation of the statutory 30-day notice standard interpreted in Geiger II.

The phrase "full back pay", as it is used in Maryland Code (1993), State Personnel and Pensions Article, § 11-110(d)(1)(iii), does not explicitly include State-offered benefits.. The Court looked to the legislative history of the statute to determine its meaning, paying particular attention to Governor’s Task Force Report that indicated that the word "full" had significance apart from a deleted set-off provision in an earlier iteration of the bill before enactment.

Several factors led the Court to conclude that "full back pay" must embrace also State-offered benefits. First, Maryland courts previously conflated the provisions of § 11-110(d )(1)(ii) and (iii) to both reinstate and provide back pay with benefits to erroneously terminated employees. Second, the Court held that the entire State Personnel and Pension Article addresses the pay scheme in a manner that contemplates benefits, such as health care and leave, to be inextricably linked with pay. Third, the Task Force Report belies the notion that § 11-110(d)(1) was written in the disjunctive with respect to pay and benefits. Finally, the Court held it to be unreasonable for the General Assembly to permit recipients of lesser wrongful discipline to be made whole entirely, while simultaneously depriving wrongfully terminated employees of their accrued State benefits.

The full opinion is available here in PDF.

Koshko v. Haining (Ct. of Appeals)

Filed January 12, 2007--Opinion by Judge Glen T. Harrell, Jr. Dissenting Opinion by Judge Dale R. Cathell

Maternal grandparents established significant relationship with the grandchildren while their daughter and first grandchild resided with them and after the daughter married and moved away. This substantial relationship encompassed the child that had resided under their roof, as well as two grandchildren born after their daughter moved away.

Following a family disagreement between the grandparents and husband on how the husband should act toward his dying mother, the daughter and her husband cut off all visitation. Grandparents brought an action for visitation in the Circuit Court for Baltimore County under the Grandparent Visitation Statute (GPS), found at Md. Fam.Law Code Ann.§9-102. The trial judge established a rolling schedule of four-hour visits every 45 days and quarterly overnight visits. The trial court also directed that the parents and grandparents attend at least four joint, professional counseling sessions to discuss issues relating to the visitation. After an unsuccessful bid for a new trial, the Koshkos appealed the judgment of the Circuit Court.

The Court of Special Appeals affirmed the judgment, Koshko v. Haining, 168 Md.App. 556, 897 A.2d 866 (2006), holding that the GVS was neither facially unconstitutional nor unconstitutional as applied to the Koshkos. The intermediate appellate court rejected the argument that the GVS violated the Koshkos' fundamental right to parent, as articulated in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality), simply because it lacked an express presumption that parental decisions are in the best interests of children. Under the principle of constitutional avoidance, the court interpreted the GVS to contain such a presumption. Upholding the trial court's order of visitation The Court of Special Appeals disagreed with the parents' position that there must be a threshold finding of either parental unfitness or exceptional circumstances as a predicate to the statutorily-imposed best interests of the child inquiry.

The Koshkos petitioned the Court of Appeals, which granted a writ of certiorari to consider the Koshkos' substantive due process challenge to the GVS.

Held:

The natural parents' decisions regarding the care, custody and upbringing of their minor children are presumptively correct which can only be overcome by a threshold showing of either parental unfitness or exceptional circumstances demonstrating current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis, overruling the portions of Fairbanks, Maner, Beckman, Herrick and Wolinski that are inconsistent with the ruling.

While less of an intrusion than custody, parents in a visitation case have a fundamental constitutional right to parent their children which is only rebutted by a showing of unfitness or exceptional circumstances.

In deciding the issue of fundamental constitutional rights afforded to parents the court stated that visitation was a temporary form of custody.

Because of the fundamental constitutional right afforded to parents, the proper standard in reviewing the constitutionality of the GVS is strict scrutiny.

Under the principal of constitutional avoidance, The GPS as interpreted and glossed by the Court of Appeals was not facially unconstitutional because of the requirement of a threshold finding of parental unfitness or exceptional circumstances demonstrating the detriment that has or will be imposed on the children absent visitation by their grandparents before the best interests analysis may be engaged.

In applying the strict scrutiny standard the Court held that the GVS was unconstitutional as applied.

In affected cases pending at the time this opinion was filed, where appropriate, courts may allow amendments to pleadings or the presentation of additional evidence in light of the holdings announced here. In cases filed after this opinion, the petitioners, in order to avert or overcome a motion to dismiss their petition, must allege a sufficient factual predicate in the petition so as to present a prima facie case of unfitness or exceptional circumstances, as well as invoking the best interest standard.

In a dissenting opinion, Judge Eldridge agreed that the GVS was not facially unconstitutional, but argued that the Court placed a great deal of reliance on Justice O'Connor's opinion in Troxel, which was not the opinion of the Supreme Court and did not appear to reflect the views of a majority of the Supreme Court.

Full opinion PDF.

Haas v. Lockheed Martin (Ct. of Appeals)

Decided January 9, 2007--Opinion by Judge Glenn T. Harrell, Jr.

Respondent had employed Petitioner in Montgomery County as a human resources specialist since 1998. Following a corporate restructuring, Petitioner applied for a newly created human resources position with Respondent in April 2001, said new position to subsume many or most of Petitioner's prior professional duties of employment. Respondent did not extend an offer to Petitioner for that new position, and notified Petitioner in writing on October 9, 2001 that Petitioner would be laid off effective October 23, 2001, which date indeed became Petitioner's last day of work with Respondent.

Petitioner filed suit against Respondent in the Circuit Court for Montgomery County on October 23, 2003 for alleged discrimination on the grounds of disability under Md. Ann. Code, Art. 49B, Sec. 42(b), a Maryland statute specific to Montgomery County, said discrimination alleged to have occurred on the basis of Petitioner's Attention Deficit Disorder. Respondent moved for summary judgment, citing the two-year limitations provision in that statute. The Circuit Court granted summary judgment and the Court of Special Appeals affirmed.

The Court of Appeals ("the Court") reversed and remanded the case to the Court of Special Appeals with instructions to reverse the Circuit Court's grant of summary judgment and to remand the case to the Circuit Court for further proceedings.

In its opinion, the Court held that the two-year limitations period from the date of "discharge" - an undefined term - ran not from the date of discovery of an impending discharge or of a notice of such discharge, but from the actual discharge upon cessation of employment. The Court noted that this view was a minority view among the states with largely similar statutes, but cited a number of grounds for the ruling including the rule's bright-line simplicity for the benefit of employers, employees and courts and the furtherance of the remedial purpose of the statute in sustaining meritorious claims. The Court rejected the so-called "Ricks/Chardon" majority rule dating a discharge to the date of notice thereof, due to that rule's potential to interfere with possible conciliation and to propagate unripe suits.

In dissent, Judge Battaglia opined that the discriminatory act of discharge prohibited under section 42(b) is, in fact, the decision to discharge the employee, rather than the termination of employment itself. Judge Battaglia noted that an employee suffers harm upon the very notice of discharge, not merely later on her last date of employment, and that the federal employment statutes which section 42(b) and similar Maryland statutes mimic calculate the date of discharge for limitations from the date of notice. Judge Battaglia cited as a policy ground for her view the benefit to employees of a longer grace period in which to find new employment and to continue to receive benefits before the last date of employment; calculating the limitations period from the last date of employment would discourage employers from extending such benefits and grace periods. Judge Raker joined in part A of the dissenting opinion expressing the foregoing grounds.

In part B of the dissenting opinion, Judge Battaglia cited the "discovery rule" applied to many Maryland statutes of limitations and urged that the calculating "discharge" from the date of notice of discharge would be consistent with that principle.

The full text of the opinion and dissent can be found here in PDF.

Bramble v. Thomas (Ct. of Appeals)

Decided January 8, 2007 -- Opinion by Judge Glenn T. Harrell, Jr.

Petitioner, a gravel and sand company, held a right of first refusal in a particular parcel of land ("the Property"). The Lanes, who were the landowners and were co-respondents to this action, received from the Thomases, likewise co-respondents, an offer to purchase the Property. Added by hand-written addendum to the offer was a "no mining" clause which purported to forbid mining on the Property. When Petitioner attempted to exercise its right of first refusal, it omitted from its "matching" offer this prohibition on mining.

After the Lanes refused to convey to either Petitioner or the Thomases, the Petitioners filed suit seeking specific performance. Both the Lanes and Petitioner moved for summary judgment. The Circuit Court declared, inter alia, that Petitioner's purported exercise of the right of first refusal was ineffectual because the exercise was not made "on the terms of the intended sale," to wit, the omission from its exercise of the "no mining" provision. The Court of Special Appeals affirmed the grant of summary judgment.

The Court of Appeals opined in dicta regarding the nature of an option under Maryland law, but denied summary judgment due to an unresolved issue of fact, namely whether the "no mining" provision was added in bad faith in order to frustrate Petitioner's preemptive right in the Property.

The Court held that under Maryland contract law regarding good faith and fair dealing, a property owner may not insert into the triggering offer terms which it knows will be repugnant to the holder in order to discourage the exercise of a preemptive right including a right of first refusal. The Court found evidence in the record that, if believed, could lead a reasonable fact finder to conclude bad faith by the Lanes or the Thomases through the insertion of the "no mining" provision as a "poison pill." Among the facts noted by the Court were:

1. The mining of adjacent property;


2. Ms. Thomas' status as a registered real estate agent and concomitant likely knowledge of such adjacent mining; and


3. The handwritten format of the "no mining" clause consistent with its possible after-the-fact insertion.
   

Accordingly, the Court remanded the matter to the Court of Special Appeals, with instructions to reverse and remand the case to the trial court for proceedings consistent with the Court's opinion.

The full opinion is available here in PDF.

Aventis Pasteur, Inc. v. Skevofilax (Ct. of Appeals)

Filed January 8, 2007--Opinion by Judge Glenn T. Harrell, Jr.

Respondents, individually and as next friends for their minor child, filed suit in the Circuit Court for Baltimore City seeking damages claiming that their minor son's autism was caused by toxic levels of mercury contained in thimerosal. After three-amended scheduling orders and nearly eleven months of discovery, Respondents' sole expert on specific causation withdrew from further participation in the case without ever having rendered his expert opinion. The Circuit Court denied Respondents' motion for voluntary dismissal without prejudice, and entered summary judgment in favor of Petitioners.

The Court of Special Appeals reversed, holding that the Circuit Court improperly applied the pertinent legal factors in its analysis regarding the legal rights of minors and stating that the plaintiff's minority status weighed heavily in favor of voluntary dismissal without prejudice.

Held: The trial judge did not abuse his discretion in denying Respondent's Motion to Dismiss without prejudice and granting Petitioner's Motion for Summary Judgment. The decision of the Court of Special Appeals is reversed.

The decision to grant or deny a motion for voluntary dismissal pursuant to Maryland Rule 2-506(b) is addressed to the sound discretion of the trial court, and will not be overturned on appeal absent a showing that the trial judge abused that discretion. So long as the Circuit Court applied the proper legal standards and reached a reasoned conclusion based on the facts before it, an appellate court should not reverse merely because the appellate court would have reached a different conclusion. The trial court recounted properly the following four non-exclusive factors which instruct a decision whether to grant a voluntary dismissal: (1) the non-moving party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the moving party; (3) sufficiency of the reason of the need for dismissal; and (4) whether a motion for summary judgment or other dispositive motion is pending.

A trial court has a special duty to protect the rights and interests of a minor plaintiff who is represented by a next friend to ensure that the next friend does not prejudice those rights and interests through conflict of interest, fraud, or neglect. Absent conflict of interest, fraud, or neglect by a parent, guardian, next friend, or the minor's attorney, however, a motion for voluntary dismissal filed on behalf of a minor should not be analyzed any differently than a motion for dismissal without prejudice filed by any plaintiff.

The full opinion is available in PDF.

Dashiell v. Meeks (Ct. of Appeals)

Filed December 14, 2006--Opinion by Judge Dale R. Cathell. Dissenting opinion by Judge Glenn T. Harrell, Jr.

In a legal malpractice case, the Court of Special Appeals, in reviewing a grant of a motion for summary judgment in favor of the defendant, ordered that the record on appeal be supplemented by material from the record in another case. Ultimately, the Court of Special Appeals did not consider this material in reaching its decision.

Held: There is no requirement that an appellate court must consider portions of the record from a prior case that it (i.e., the appellate court) has ordered to be obtained as a supplement to the record in a subsequent case. The Court of Special Appeals did not abuse its discretion by doing exactly that in this case. In so holding, the Court of Appeals affirmed the judgment of the Court of Special Appeals that: (1) the Circuit Court for Wicomico County erred as a matter of law in finding that the plaintiff's claim was barred by the statute of limitations; (2) the Circuit Court for Wicomico County, in a summary judgment context, did not abuse its discretion in denying the defendant's motion based on judicial estoppel grounds; and (3) upon remand the defendant is free to assert the claims of limitations, judicial estoppel, and any other defenses.

With respect to the statute of limitations defense, the Court of Appeals discussed the discovery rule in the context of a claim with respect to a contract executed by the plaintiff where part of the plaintiff's claim involves alleged negligence of the attorney with respect to the attorney's advice in the course of the negotiation and preparation of the contract.

The full opinion is available in WPD or PDF.

Purich v. Draper Properties, Inc. (Ct. of Appeals)

Filed December 7, 2006--Opinion by Judge Dale Cathell.
Dissenting Opinion by Judge Glenn Harrell, in which Judges Irma Raker and Clayton Greene, Jr., join.

In Montgomery County, once a special exception is obtained for a particular use of a property and the property is thereafter utilized for that use, a prior nonconforming use that is identical to that for which the special exception is granted is terminated or the six month period of abandonment begins to run. §59-G-4.14 of the Montgomery County Zoning Ordinance. Once the special exception is granted the use becomes "permitted" and, if not sooner terminated, after six months the nonconforming use is abandoned and may not be revived unless additional relief is granted under other provisions of the Zoning Ordinance, i.e., variances, etc.

The full opinion is available in WordPerfect and PDF.