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September 2020 Maryland Certiorari Grants

The Court of Appeals today granted review in one criminal appeal and two civil appeals.

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Plank v. Cherneski: Court of Appeals Nails Down a Loose Plank in Maryland Tort Law

By Alan Sternstein

The Court of Appeals expressly held in Kann v. Kann, 344 Md. 689, 510, 690 A.2d 509, 510 (1997), that “allegations of breach of fiduciary duty, in and of themselves, do not give rise to an omnibus or generic cause of action at law that is assertable against all fiduciaries.” Ever since, Maryland’s lawyers and courts have labored under the maxim that “Maryland does not recognize a separate tort action for breach of fiduciary duty.” Int’l Brotherhood of Teamsters v. Willis Corroon Corp., 369 Md. 724, 727 n.1, 802 A.2d 1050, 1051 n.1 (2002) (dictum). Yet, since Kann, lawyers have sought and courts have granted and affirmed relief for breaches of required standards of conduct in various fiduciary relationships. See, e.g., Shenker v. Laureate Education, Inc., 411 Md. 317, 983 A.2d 408 (2009) (corporate directors and minority shareholders); Della Ratta v. Larkin, 382 Md. 553 (2004) (general partner and limited partners); Ins. Co. v. Miller, 362 Md. 361, 765 A.2d 587 (2001) (insurance company and agent of company). With its recent decision in Plank v. Cherneski, Misc. No. 3, Sept. Term 2019 (Md., July 14, 2020) (“Slip Op. at ___”), the Court of Appeals, after exhaustively surveying and scrutinizing relevant Maryland state and federal decisions in the 23 years since Kann, has exposed the emptiness of the maxim rejecting a generic cause of action for breach of fiduciary duty. Despite the 23 year wait, however, Judge Booth’s 79-page unanimous opinion for the court leaves no suspense for the end, stating on page 2:

This Court recognizes an independent cause of action for breach of fiduciary duty. To establish a breach of fiduciary duty, a plaintiff must demonstrate: (1) the existence of a fiduciary relationship; (2) breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary.

Slip Op. at 2.[1]
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Waiving a Claim of Waiver in COSA

By Steve Klepper (Twitter: @MDAppeal)

On August 3, the Court of Special Appeals reported an opinion of the kind that gives attorneys anxiety attacks. In Hayes v. State, the Court addressed a consolidated appeal involving two jointly tried co-defendants, Hayes and Winston. Both claimed on appeal that the circuit court failed to ask necessary voir dire questions under Kazadi v. State. The State conceded that both defendants preserved the error, and that both were entitled to a new trial. But the Court of Special Appeals originally held, contrary to the State’s concession, that only Winston preserved the issue for review on appeal, and that Hayes therefore was not entitled to a new trial.

On Hayes’ motion for reconsideration, however, the Court issued a revised opinion holding that “Hayes did raise the issue before voir dire ended, if just barely,” by handing the trial judge a written request for the same questions that Winston requested. The Court lamented that Hayes’ “tactical approach does not represent best voir dire practice,” and that “it took more than 4,000 words worth of analysis to reach the conclusion, as we now do, that Ms. Hayes preserved her Kazadi claims.”

The Court engaged in this 4,000-word analysis because it held itself obligated to ensure that the matter was preserved under Rule 8-131:

We can dispose quickly of [Hayes’ argument] that the State’s concession that Ms. Hayes had preserved the Kazadi argument waived any  preservation objection. The State’s concession of error does not bind us. Coley v. State, 215 Md. App. 570, 572 n.2 (2013) (an appellate court is not bound by a party’s erroneous concession of error on a legal issue). Under Maryland Rule 8-131, we “will not decide any [ ] issue unless it plainly appears by the record to have been raised in or decided by the trial court….” 

The Court deserves credit for recognizing on reconsideration that Hayes preserved her claim of error. Nevertheless, I believe that the Court should have begun and ended its analysis with the State’s waiver of any preservation challenge.

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It’s Official: Maryland Accepts Daubert as Controlling Law for Admitting Expert Testimony

Editor’s Note: The author of this post represented the Defendant in the appeal. This article does not address any case-specific facts and instead focuses on the holding’s impact on Maryland law generally. As with all of our posts, it contains only the author’s personal opinions, not those of his firm or his clients. This is the blog’s first substantive post on Rochkind, and we expect to have more. If you are interested in submitting a guest post, please contact the editor-in-chief.

By Derek Stikeleather

After more than a decade of incrementally adopting the Daubert standard—and the steady erosion of Frye-Reed as an independent, additional requirement for trial courts applying Maryland Rule 5-702—the Court of Appeals has clarified Maryland law on expert testimony. In Friday’s landmark Rochkind v. Stevenson opinion (its final of the Term), the Court formally adopted the Daubert standard as controlling Maryland law.[1] In doing so, it retired the superfluous Frye-Reed test, which had not only become riddled with exceptions but also evolved into the same “analytical gap” test that courts use when applying Rule 5-702 to expert testimony.

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Virtual Event: Appellate Practice, Sept. 14

Michael Wein, a founding member of the blog, has organized a terrific virtual event for Monday, September 14, from 5:30 to 6:45. Please click here to register.

Description

The Litigation Section and its Appellate Practice Committee is co-sponsoring with the Prince George’s County Bar Association a virtual Appellate Practice program. This program will include a discussion of new appellate rules, final judgements for appeals, issue recognition and drafting questions presented.

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Breaking news: Maryland adopts Daubert test for expert testimony

Today, in Rochkind v. Stevenson, the Maryland Court of Appeals adopted the Daubert test for the admissibility of expert testimony.

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Maryland Certiorari Statistics, 2019 Term

By Steve Klepper (Twitter: @MDAppeal)

For three years now, I’ve tracked the Court of Appeals’ petition docket. The judiciary’s annual statistical reports give the overall grant rate for civil and criminal certiorari petitions. Because the majority of petitions each year are filed pro se, however, the overall statistics are not terribly helpful for lawyers in advising their clients regarding the odds of certiorari.

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August 2020 Maryland Certiorari Grants, Part 2

Today the Court of Appeals posted one additional certiorari grant, outside its typical schedule for deciding petitions.

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August 2020 Maryland Certiorari Grants

Today the Maryland Court of Appeals granted certiorari in two criminal cases and one civil case. Read More…

The Shots Heard Round Richmond

By Megan E. Coleman

Richmond, Virginia. Formerly, the home of the largest slave-trading center in the Upper South and the capital of the Confederacy during the American Civil War. Currently, the site of protests against police brutality and racial injustice, with activists removing or refacing Confederate monuments. The Chief Judge of the United States Court of Appeals for the Fourth Circuit recently said: “As a country, we are in a moment of reckoning.” See United States v. Curry, No. 18-4233 (Decided: July 15, 2020, Amended: July 16, 2020) (Gregory, C.J., concurring at 38).

United States v. Curry is a case stemming from the suspicionless stop of a pedestrian by the Richmond Police Department less than one minute after multiple gunshots were fired in a high crime area of Richmond. It is a fascinating opinion for a myriad of reasons. Read More…