Recent Maryland Decisions – 8/17

MARYLAND COURT OF APPEALS

Criminal Procedure, Post-conviction relief: Defendant was not entitled to post-conviction relief to re-litigate the allegation that the trial court erred by excluding expert testimony, because that issue had already been finally litigated and cases decided after his trial did not establish any previously unrecognized constitutional standard. Greco v. State, No. 86, Sept. Term, 2011. RecordFax No. 12-0626- 20, 43 pages.

Labor & Employment, Respondeat superior: Where fatigued employee fell asleep at the wheel on his way home from work, causing an accident, his employer was not liable to a third party. Barclay v. Briscoe, No. 41, Sept. Term, 2011. RecordFax No. 12-0627-20, 33 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney violated several Rules of Professional Conduct and had been suspended indefinitely for similar misconduct in other cases. Attorney Grievance Commission v. Shakir, Misc. Docket AG No. 8, September Term, 2009. RecordFax No. 12-0625-24, 12 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney abandoned his representation of his client and failed to cooperate with Bar Counsel. Attorney Grievance Commission v. Park, Misc. Docket AG No. 15, September Term, 2009. RecordFax No. 12-0625-23, 18 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney violated multiple Rules of Professional Conduct in connection with nine separate clients and matters. Attorney Grievance Commission v. Garrett, Misc. Docket AG No. 13, September Term, 2010. RecordFax No. 12-0625-22, 22 pages.

COURT OF SPECIAL APPEALS

Civil Procedure, In banc review: An in banc panel of the circuit court lacked jurisdiction to consider the merits of a husband’s request to dissolve a consent judgment that barred him from contacting his wife, and to vacate the contempt order that was issued when he breached that consent judgment; therefore, there was no final judgment that could be reviewed on appeal. Remson v. Krausen, No. 2187, Sept. Term, 2010. RecordFax No. 12-0628-05, 20 pages.

Civil Procedure, Service of process: Substituted service on SDAT was sufficient against a corporation that had forfeited its charter, had no resident agent, and whose only corporate director was deceased. Thomas v. Rowhouses, Inc, No. 2102, Sept. Term, 2010. RecordFax No. 12-0628-04, 19 pages.

Criminal Procedure, ‘CSI effect’ jury instructions: In defendant’s criminal trial for weapons possession, court erred in instructing the jury that there was no legal requirement that the state utilize any specific investigative technique or scientific test to prove its case. Samba v. State, No. 1895, Sept. Term, 2010. RecordFax No. 12-0628-00, 33 pages.

Criminal Procedure, Plea agreements: The circuit court properly denied defendant’s motion to enforce the terms of an oral plea agreement, which was superseded by a later written agreement, and was not clearly erroneous in concluding that the defendant failed to fulfill his duties within a reasonable time. Y.Y. v. State, No. 3025, Sept. Term, 2009. RecordFax No. 12-0627-05, 42 pages.

Criminal Procedure, Jury instructions: The circuit court erred by refusing to submit the charge of fourth-degree burglary to the jury, where the evidence was legally sufficient for defendant to be convicted of either third-degree burglary or the lesser included offense of fourth-degree burglary. Bass v. State, No. 2971, Sept. Term, 2010. RecordFax No. 12-0628-03, 14 pages.

Criminal Procedure, Parolee’s diminished expectation of privacy: Where a parole retake arrest warrant for defendant was outstanding, the search of defendant’s hotel room, based on reasonable suspicion to believe that defendant was engaged in criminal activity, was not unreasonable under the Fourth Amendment. Feaster v. State, No. 408, Sept. Term, 2011. RecordFax No. 12-0629-00, 42 pages.

Criminal Procedure, Warrantless search of hotel room: Defendant did not have a subjective expectation of privacy in an unoccupied and locked-out hotel room he had previously rented, and the hotel could consent to the warrantless entry and search. Bordley v. State, No. 0464, Sept. Term, 2010. RecordFax No. 12-0627-04, 16 pages.

Criminal Procedure, Search and seizure: Public school employee had no reasonable expectation of privacy in his unlocked work desk, which was owned by school, was in centrally located area, and which employee could have taken steps to secure but did not. Walker v. State, No. 2733, Sept. Term, 2010. RecordFax No. 12-0628-02, 40 pages.

Evidence, Expert opinion on causation : The trial court abused its discretion under Rule 5-702 when it denied defendant’s motion to exclude plaintiffs’ expert opinion on “substantial contributing factor causation” where the expert’s testimony did not quantify the probability of causation. Dixon v. Ford Motor Company, No. 536, Sept. Term, 2011. RecordFax No. 12-0629-06, 27 pages.

Evidence, Gang-related evidence: The circuit court did not err by admitting gang-related evidence where the fact evidence demonstrated that the murder was gang-related, the evidence was relevant to explain inconsistencies between witnesses’ pretrial statements and trial testimony and the probative value of the evidence outweighed any danger of unfair prejudice. Burris v. State, No. 1970, Sept. Term, 2010. RecordFax No. 12-0628-01, 61 pages.

Family Law, Modification of custody : In light of the evidence of mother’s mental illness, among other things, the circuit court did not err in modifying the custody agreement, because there was sufficient evidence to demonstrate a material change in circumstance and that the modification was in the best interests of the children. Gillespie v. Gillespie, Nos. 960 and 2153, Sept. Term, 2011. RecordFax No. 12-0629-03, 36 pages.

Labor & Employment, Maryland Wage Payment & Collection Law: The circuit court applied an improper test in denying an award of attorneys’ fees and costs to plaintiff under the Maryland Wage Payment and Collection Law. Barufaldi v. Ocean City, Maryland Chamber of Commerce, Inc., No. 270, Sept. Term, 2011. RecordFax No. 12-0629-01, 28 pages.

Negligence, Assumption of risk of medical malpractice: Absent exceptional circumstances, an assumption of risk defense is not available to a physician in a suit for medical malpractice in Maryland. Schwartz v. Johnson, No. 2556, Sept. Term, 2009. RecordFax No. 12-0627-00, 20 pages.

Workers’ Compensation, Statute of limitations: Employee’s petition to reopen his workers’ compensation claim for worsening of condition was barred by the statute of limitations, because the employee’s withdrawal of supporting issues constituted withdrawal of his petition to reopen, and more than five years elapsed between his last indemnity payment and the filing of any new issues for worsening of condition. McLaughlin v. Gill Simpson Electric, No. 376, Sept. Term, 2011. RecordFax No. 12-0629-05, 20 pages.

Zoning, Agricultural preservation: Baltimore County properly granted a creamery’s petition for a special exception for a farm market or farmer’s roadside stand in an agricultural zone, because the creamery was an agricultural producer, it met the requirements regarding sales of farm produce and locally produced nonagricultural goods, and the special exception would not be detrimental to the health, safety or general welfare of the locality, would not tend to create congestion and would not create a potential hazard from fire, panic or other danger. Long Green Valley Association v. Prigel Family Creamery, No. 350, Sept. Term, 2011. RecordFax No. 12-0629-04, 19 pages.

U.S. 4th CIRCUIT COURT OF APPEALS

Administrative Law, FINRA Arbitration : As a result of significant overlap in personnel and resource utilization between a financial adviser’s former and current investment firms, the adviser’s current firm “indirectly controlled” the adviser, making them “associated persons”; therefore, the investors’ dispute with the adviser’s current firm was covered by the FINRA Code of Arbitration Procedure for Customer Disputes. Waterford Investment Services v. Bosco, No. 11-2103. RecordFax No. 12-0621-60, 13 pages.

Civil Procedure, False Claims Act: The district court erred in ruling that, as state agencies, the defendants were not “persons” subject to suit under the False Claims Act, without first considering an arm-of-the-state analysis under the Eleventh Amendment. U.S. ex rel. Jon H. Oberg v. Kentucky Higher Education Student Loan Corp., et al., No. 10-2320. RecordFax No. 12-0618-61, 9 pages.

Criminal Procedure, Probable cause for traffic stop: A police deputy lacked probable cause to initiate a traffic stop based exclusively on his uncorroborated and unsupported belief that defendant was traveling five miles per hour above posted speed limit. U.S. v. Sowards, No. 10-4133. RecordFax No. 12-0626-60, 54 pages.

Environmental Law, Finding of no significant impact: In concluding that no Environmental Impact Statement was necessary before approving a permit to expand the number of boat slips in marine refuge area, the Army Corps of Engineers lacked any reasonable basis for finding that a no-wake zone was being adequately enforced or that its efficacy was otherwise assured. Friends of Back Bay v. U.S. Army Corps of Engineers, No. 11-1184. RecordFax No. 12-0618-60, 16 pages.

Labor & Employment, Americans with Disabilities Act: Plaintiff who brought an employment discrimination claim under the ADA exhausted her administrative remedies despite not filing her proposed accommodation with Equal Employment Opportunity Commission, because her administrative and judicial claims were reasonably related. Sydnor v. Fairfax County, No. 11-1573. RecordFax No. 12-0619-60, 11 pages.

Workers’ Compensation, Federal Employees’ Compensation Act: A municipality constitutes a “person” for purposes of reimbursement under the Federal Employees’ Compensation Act; thus, the Department of Labor was entitled to reimbursement of FECA benefits it paid to an employee who sued the town in which she was injured and received a settlement. Hutchins v. U.S. Dept. of Labor, No. 11-1375. RecordFax No. 12-0621-61, pages.

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