Three more October 2016 Maryland certiorari grants hint at a new pattern

The Maryland Appellate Blog launched in 2013 at the beginning of Chief Judge Mary Ellen Barbera’s first full term as chief. Since then, the Court has continued the same usual schedule for certiorari grants that we saw under her predecessor, Chief Judge Bell. The Court holds a monthly conference, apart from post-argument conferences, to review certiorari petitions and draft opinions. One business day after that monthly conference, it posts certiorari grants. It then issues certiorari denials the next business day.

The first two months of the September 2016 Term have seen a tweak to the schedule. During the oral argument sitting at the beginning of the month, the Court has posted a batch of certiorari grants. A smaller number of grants has then followed the monthly conference a few weeks later, with certiorari denials still coming two business days after the conference.

It’s not yet clear whether this is the new normal. If the pattern holds, it suggests that the Court is now using its post-argument conferences to see if there are consensus candidates for certiorari, with the monthly conference reserved for closer calls.

Below are the three October 28 certiorari grants, with questions presented. None appear to be blockbusters. Two involve the summary judgment standard in lead paint cases. For more fun reading, check out yesterday’s delightful (and provocatively titled) Derek Stikeleather post, On Love-Making, Regrets, and Footnotes in Appellate Briefs.

Stewart Levitas v. Michael Davon Christian – Case No. 58, September Term, 2016

Issues – Torts – 1) Did CSA err in reconsidering all issues in this case when this Court’s order for “reconsideration in light of Roy v. Dackman, 445 Md. 23 (2015), should only have impacted the issue of expert qualifications? 2) Did the trial court abuse its discretion in excluding the medical expert’s testimony where the record showed that the expert did not have a sufficient factual basis to support either his opinion as to the source of lead exposure or the cause and extent of Respondent’s alleged injuries?

Terrence Rogers v. Home Equity USA, Inc. – Case No. 57, September Term, 2016

Issues – Torts – 1) Can an appellate court decline to address the correctness of the trial court’s reasoning when granting summary judgment and then affirm the summary judgment relying on a different factual basis than that relied upon by the trial court where the trial court had discretion to deny summary judgment, the alternative basis required resolution of critical facts in dispute, and the appellate court rendered its decision without the benefit of a complete record? 2) Did CSA err in affirming the grant of summary judgment on a factual basis not relied upon by the trial court, when the factual support was first presented to the trial court by Respondent during the hearing on summary judgment, not allowing Petitioner time to ensure a complete factual record as to the issue? 3) Did CSA err in affirming the grant of summary judgment in reliance on a medical expert’s opinion stated during her deposition which, in turn, relied upon the resolution of a material fact in dispute, when the trial court did not rely upon this opinion as a reason for granting summary judgment, the issues could only be determined by resolving disputes of fact, and the record contained only non-consecutive pages of the deposition transcript? 4) Did CSA invade the province of the jury and make a determination of fact in affirming a grant of summary judgment? 6) Did the trial court err in granting Respondent’s motion for summary judgment and in denying Petitioner’s motion for reconsideration, on the ground that Petitioner failed to meet his burden of proof?

Allen Tiffany v. University of Maryland, College Park – Case No. 59, September Term, 2016

Issues – Labor & Employment – 1) Does a collective bargaining agreement that directs that an employee may only be disciplined for cause abrogate at-will employment? 2) Does a right to process for a public employee abrogate at-will employment?