For Murphy’s Memorial, His Five Most-Cited Court of Appeals Cases

By Chris Mincher

Tomorrow, the Supreme Court of Maryland will hold a special session to host a memorial service for one of its former members, the Hon. Joseph F. Murphy, Jr., who died in July of last year. There will be speeches by Erin Murphy and Richard Karceski, followed by a response by Justice Eaves — but no number of presenters can adequately convey just how many lives and careers Judge Murphy helped shape in the state’s legal profession. (I among them: Judge Murphy helped recruit me to my first job practicing law as an associate at Silverman Thompson Slutkin White, and he was always available to impart his wisdom on whatever tricky legal and appellate questions I encountered.) His widespread influence will long be felt.

Judge Murphy’s opinions endure across Maryland jurisprudence. In conjunction with today’s event, here are Judge Murphy’s five most-cited Court of Appeals cases — at least, according to an informal survey on LexisNexis — a brief sample of his expertise on evidence, adherence to procedure, and versatility in advancing the law in numerous practice areas.

State v. Rich, 415 Md. 567 (2010)

Judge Murphy’s opinion in State v. Rich adopted various aspects of federal jurisprudence to accomplish two important things: (1) develop the so-called “invited error” doctrine (that a party can’t appeal a mistake that it asked the trial court to make) in Maryland; and (2) set forth a “plain error” test for when an appellate court would exercise its discretion to review unpreserved issues. Looking to the factors laid out in Puckett v. United States, 129 S. Ct. 1423 (2009), he explained that plain error review was available for obvious legal errors that hadn’t been waived, affected the appellant’s substantial rights, and seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

His analysis distinguished forfeited from waived rights, citing the Ninth Circuit in United States v. Perez, 116 F.3d 840, 842-845 (9th Circuit 1997): Forfeiture of a right occurs when a party fails to timely assert it, while waiver of a right occurs when the party knowingly and intelligently gives it up. Appellate courts will review forfeited rights for plain error, but not waived rights.

Ruffin Hotel Corp. of Md. v. Gasper, 418 Md. 594 (2011)

Ruffin Hotel Corp. of Md. v. Gasper was an important one for employment law attorneys, as Judge Murphy clarified that a plaintiff in a retaliatory discharge lawsuit must demonstrate that harassing conduct was merely a motivating factor for the termination — not necessarily the determining or controlling one. He also swatted away a host of preemption-related defenses.

Judge Murphy first reaffirned that public policy prohibits firing an employee for asserting her rights regardless of whether other laws might also apply. He also rejected the idea that, when negligent retention and supervision claims against an employer are based on intentional and wrongful conduct of a fellow employee, they must be litigated before the Workers’ Compensation Commission.

But wait, there was more to come with an issue on cross-appeal — whether Md. Rule 5-404(b) permits evidence of prior bad acts of a supervisor to prove discrimination, retaliation, or negligent hiring and supervision claims. Finding the presentation of that question wanting, Judge Murphy first gave a (now frequently cited) reminder that appellate courts can’t be expected to search the record for facts in support of a party’s position, or search for the applicable law.

The dispute did, however, provide a good opportunity to straighten out some confusion as to appellate consideration of evidentiary decisions by the trial court. First, Judge Murphy acknowledged that those are typically reviewed for an abuse of discretion. However, he pointed out that trial courts have no discretion to let in irrelevant evidence because Md. Rule 5-402 makes it categorically inadmissible.

As such, there are really two separate standards of review at play: “clearly erroneous” for the trial court’s factual findings as to whether evidence has probative value, and “de novo” for the trial court’s legal conclusion that the evidence is consequential to the determination of the action. At the end of the day, though, the opinion’s big reveal was that — adopting a prior view of Judge Wilner’s in a dissent — Md. Rule 5-404(b) didn’t apply in the civil context at all.

Starr v. State, 405 Md. 293 (2008)

Judge Murphy in Starr v. State created a little primer for criminal defense attorneys on how to set a case up for appeal. He began with a reminder that — as suggested by Md. Rule 4-324(a) — the Court won’t entertain, for the first time on appeal, new reasons for why the defendant should be acquitted. He approved of a prior Court of Special Appeals instruction from Judge Moylan that, pursuant to that Rule, the only way to preserve arguments about the legal sufficiency of the evidence after a jury trial is to move for a judgment of acquittal on those grounds. The defendant is then “required to argue precisely the ways in which the evidence should be found wanting and the particular elements of the crime as to which the evidence is deficient.” Judge Murphy also adopted another Court of Special Appeals admonition that a defendant “may not argue in the trial court that the evidence was insufficient for one reason and then urge a different reason for insufficiency on appeal.”

Omayaka v. Omayaka, 417 Md. 643 (2011)

Omayaka v. Omayaka created useful precedent on the topic of a spouse’s dissipation of marital property (a recurring issue in divorce cases). Although dissipation typically requires a showing that a spouse used marital property for personal benefit unrelated to the marriage while it was undergoing an irreconcilable breakdown, Judge Murphy looked to other jurisdictions for examples of when that isn’t always the case.

The best how-to he found on dissipation was from the Maryland Family Law treatise of Baltimore County Circuit Court Judge John F. Fader II and Richard J. Gilbert. The key point was that if a spouse can prove, by a preponderance of the evidence, that the other spouse dissipated assets that were acquired during the marriage to prevent their inclusion in a monetary award, they can be considered marital property. Proof that a spouse made sizable withdrawals from bank accounts, for example, would do the trick.

The appellant’s demand for judgment, however, turned the opinion from a general exposition on a family law concept to another Judge Murphy masterclass on evidence and procedure — and a reminder that appellants go too far once they go beyond law and ask for facts to be relitigated in their favor. Emphasizing just how stringent a standard “clearly erroneous” is, Judge Murphy adopted this Court of Special Appeals maxim: “Although it is not uncommon for a fact-finding judge to be clearly erroneous when he or she is affirmatively PERSUADED of something, it is almost impossible for a judge to be clearly erroneous when he or she is simply NOT PERSUADED by something.” And check out this simple statement by Judge Murphy about the trial court’s discretion when it comes to assessing the credibility of witnesses: “the Circuit Court was entitled to accept — or reject — all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence.” Leave those arguments behind in trial court where they belong.

Reiter v. Pneumo Abex, 417 Md. 57 (2010)

Reiter v. Pneumo Abex was a key case in the products liability and toxic torts worlds, as Judge Murphy laid out the standard for establishing the nexus with the defendant’s product. Following the Fourth Circuit’s approach, he explained that so-called “bystander” claims can survive summary judgment with even circumstantial evidence of regular exposure to the defendant’s product, for an extended period, in proximity to where the employee worked. The “proximity” part is important, though, as the plaintiffs in the case hadn’t generated a jury question by working in a facility the size of an airplane hangar where asbestos from cranes’ brakes wasn’t close by.