August 2019 Maryland Certiorari Grants & Certified Questions

With the new term right around the corner, the Court of Appeals granted certiorari in nine cases, and the Court of Special Appeals certified questions of law in another one:

Darlene Barclay v. Sadie M. Castruccio – Case No. 30, September Term, 2019

(Unreported CSA Opinion by Nazarian, J.)

Issues – Torts – 1) Did the trial court err when it ruled that the cause of action for intentional interference with an expectancy is not a cause of action under Maryland law? 2) Did Petitioner adequately plead facts to succeed on a claim of intentional interference with an expectancy?

Carlos Couret-Rios v. Fire and Police Employees’ Retirement System of the City of Baltimore – Case No. 36, September Term, 2019

(Unreported CSA Opinion by Arthur, J., with concurring opinion by Meredith, J., and dissenting opinion by Leahy J.)

Issue – Local Codes – Did the hearing examiner commit an error of law when she awarded line-of-duty disability benefits based on a finding of fact that Petitioner suffered from attention and memory deficits as a result of a traumatic brain injury sustained while performing his job?

Estate of Jeffrey Blair by Personal Representative Tiauna Blair v. David Austin – Case No. 35, September Term, 2019

(Unreported CSA Opinion by Friedman, J., with dissenting opinion by Berger, J.)

Issue – Torts – Did CSA err when, based solely on their interpretation of the video evidence that the jury considered in reaching its verdict, it overturned the jury’s factual finding that Respondent exceeded the level of force that an objectively reasonable officer in his situation would have used?

David Hartless v. State of Maryland – Case No. 37, September Term, 2019

(Reported CSA Opinion by Berger, J.)

Issues – Criminal Procedure – 1) Given the concerns that non-incorrigible juvenile offenders will be subject to disproportionate sentences, what is the scope of the individualized sentencing requirement for juveniles who have committed homicide, and did CSA err in determining that Petitioner’s life plus twenty year sentence, imposed without an individualized sentencing, was legal? 2) Due to the concern that juveniles will be forced to serve sentences disproportionate to their culpability, should this Court recognize a substantive right for non-incorrigible juvenile offenders to be released, as set forth by the Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718 (2016)? 3) Did CSA err in finding that a life sentence in Maryland is not the functional equivalent of life without parole, even though the structure of the Maryland parole system allows offenders to be diverted from parole to clemency?

Crystal Linton, et al. v. Consumer Protection Division – Case No. 33, September Term, 2019

(Unreported CSA Opinion by Nazarian, with dissenting opinion by Berger, J.)

Issues – Commercial Law – 1) May class members in a class action lawsuit lawfully release and assign to others their right to receive money or property sought for their benefit by Respondents or the Consumer Financial Protection Bureau (“the CFPB”) through those agencies’ separate enforcement actions under the Maryland Consumer Protection Act or the Consumer Financial Protection Act? 2) Did CSA err in reversing the trial court’s final approval order and holding that class members’ right to receive money or property in the class action was not purely personal and private to those members, such that they could not release and assign those rights to others? 3) Did the trial court abuse its discretion in approving the class action settlement? 4) As a matter of first impression, did a court-approved settlement agreement, in which class members voluntarily forewent and assigned away any benefit Respondent may someday obtain on the restitution claim it asserted in order to obtain a guaranteed financial recovery, interfere with Respondent’s public enforcement authority when Respondent’s restitution theories, if successful and recoverable, would exclusively benefit the class members? 5) Does the equitable one satisfaction rule, as discussed in the Court’s recent opinion in Michele Gallagher v. Mercy Medical Center, Inc., 463 Md. 615, 207 A.3d 634 (2019), preclude class members from receiving both financial restitution and common law damages? 6) In certifying and approving a class action settlement that compensates class members in an amount equivalent to only about 4% of the financial harm they suffered as a result of their transactions with Access Funding, a Petitioner, did the trial court err in declining to require submission of evidence to support its factual findings, including its findings that defendants-appellees are insolvent? 7) In approving a class settlement that purports to “release” Access Funding’s principals, not only from any liability to class members but also from liability to two government agencies with claims pending against them, did the trial court err in holding that it had “no basis” to consider whether the “released” principals have financial resources to satisfy a judgment on, or contribute to a settlement of, the claims from which they were “released”? 8) Did the trial court abuse its discretion in approving, through a judicial opinion drafted for it by counsel, a class settlement in which (a) absent class members, more than 70% victims of lead poisoning, receive compensation equivalent to only four cents for each dollar of financial harm they suffered, (b) the amount of the settlement fund is less than available insurance proceeds and the defendants would not make any direct contribution to the settlement fund, and (c) Access Funding would purportedly be “released” from making any restitution through pending lawsuits filed by Respondents and the CFPB? 9) Did the trial court err in granting approval to a private class settlement that requires class members to transfer back to Access Funding any payment rights that are restored to them, without compliance with Maryland’s structured settlement transfer law? 10) Did the trial court abuse its discretion in awarding attorneys’ fees to class counsel, where counsel sought no discovery and engaged in no litigation adverse to Access Funding after filing plaintiffs’ complaint; admitted that their class claims, had they been adjudicated, likely would have been barred by the defendants’ unanswered petitions to compel arbitration; recovered only $750,000 of the $17.7 million in total financial harm incurred by class members; and obtained this “recovery” principally by “settling” the separate, pending claims of Respondent and the CFPB? 11) Did the trial court abuse its discretion in approving a settlement notice that used complex legal jargon and failed to inform absent class members of the implication of the settlement?

Nationwide Mutual Insurance Company v. Margaret Shilling – Case No. 38, September Term, 2019

(Reported CSA Opinion by Beachley, J.)

Issue – Insurance – Did CSA err in holding that the statute of limitations for an underinsured motorist claim starts to run on the date a plaintiff executes a release with the tortfeasor’s insurance carrier, thereby allowing a plaintiff to unilaterally determine when the statute of limitations runs, prejudicing defendants?

Latashia Pettiford v. Next Generation Trust Service – Case No. 34, September Term, 2019

(Bypass Petition)

Issues – Real Property – 1) Did the district court err by failing to dismiss Respondent’s summary ejectment complaint when Respondent had not obtained, prior to renting the property to Petitioner, a permit required by law for the property to be occupied? 2) Did the district court err when it effectively denied Petitioner the opportunity to assert a warranty of habitability defense and denied Petitioner’s attempted rent escrow defense? 3) Did the circuit court erroneously affirm the district court’s entry of a consent judgment after Petitioner raised multiple defenses, had not come to any agreement with Respondent, and neither party had requested entry of a consent judgment?

Yaw Poku Podieh v. State of Maryland – Case No. 31, September Term, 2019

(Unreported CSA Opinion, by Berger, J.)

Issues – Criminal Law – 1) When the plain language of the immigration statutes is clear, must counsel correct a client’s known erroneous belief regarding the availability of immigration defenses following a plea to an aggravated felony? 2) Does the Sixth Amendment to the U.S. Constitution apply to immigration advice obtained to assist in evaluating a plea offer? 3) Did CSA wrongly overturn the postconviction court’s findings of facts and misapply the third prong of the Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001)(en banc), aff’d 535 U.S. 162 (2002), test governing conflict of interest claims?

Jimmie Rogers v. State of Maryland – Case No. 32, September Term, 2019

(Unreported CSA Opinion by Nazarian, J.)

Issues – Criminal Law – 1) When Petitioner pled guilty to an offense under a statute requiring no proof of the victim’s age and no proof of age is provided, does the Department of Public Safety and Correctional Services have the authority to make an ex parte finding of fact that the victim is a minor and, thus, order Petitioner to register as a tier II sex offender? 2) Assuming arguendo that the Department of Public Safety and Correctional Services has the authority to make ex parte findings of fact regarding the age of the victim, what level of proof is required and who may make the ultimate determination of fact? 3) Did CSA correctly apply settled law when it reversed the trial court’s order granting Petitioner’s motion for summary judgment, where Petitioner failed to demonstrate, as a matter of law, that he is not required to register as a sex offender based upon his conviction for human trafficking in violation of Criminal Law § 11-303? 4) Is Petitioner’s separation-of-powers argument both unpreserved and meritless? 5) Is Respondent entitled to summary judgment where Petitioner did not genuinely dispute Respondent’s evidence proving that the victim of the human trafficking offense was a minor, thus establishing as a matter of law that Petitioner was required to register as a sex offender based upon his conviction of human trafficking in violation of Criminal Law § 11-303?

William H. Plank, II, et al. v. James P. Cherneski, et al. – Misc. No. 3, September Term, 2019.

(Certified Question from CSA)

Questions – 1) May minority members of an LLC (a) bring a stand-alone cause of action for breach of fiduciary duty against the managing member of the LLC (b) premised on allegations that the managing member was engaged in unlawful actions that placed at risk the investments of the minority members? 2) If so, is such a claim (a) limited to allegations that would support another viable cause of action, (b) limited to allegations that would not also support another viable cause of action, or (c) not limited by whether or not there is another viable cause of action to address the same conduct?

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