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20/20 Hindsight, in the Year 2020… Do Recent Maryland Court of Appeals’ Decisions Suggest It’s Time to Permit Citations to Unreported Opinions?

By: Michael Wein

Over the past two years, there has seen pointed recognition by the Court of Appeals of Maryland, on the issue of citing to unreported Maryland opinions, which make up about 90% of the Court of Special Appeals appellate decisions.   Under Maryland Rule 1-104, unreported opinions cannot be cited in our appellate or trial courts as, precedent or as persuasive authority, but otherwise may be used under very specific conditions, such as “law of the case, res judicata, or collateral estoppel.”

The present incarnation of Md. Rule 1-104 (previously under Md. Rule 8-114) is as follows.

RULE 1-104. UNREPORTED OPINIONS

(a) Not Authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.

(b) An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same defendant, or (3) in a disciplinary action involving the same respondent. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.

But this Rule puts Maryland in contrast with most other states, and the Federal Rules since at least 2007, which allow citations to unreported opinions as “persuasive” authority, when involving similar or identical legal and factual issues. Read More…

Workers paid a “day rate” instead of by the hour, calculating their overtime compensation, and the Maryland Wage and Hour Law and the FLSA

By Brad McCullough

How should an employer compute overtime pay for a worker paid by the day instead of the hour? In an opinion authored by Judge Kevin Arthur, Maryland’s Court of Special Appeals addressed that question in Poe v. ISEI Md. Corp., 243 Md. App. 243 (2019). Leonard Poe worked in the trash-hauling business, where he was paid a “day rate.” That form of “compensation is common in the trash-hauling industry, because it motivates employees to work quickly and efficiently: the sooner the employees finish the job, the greater their rate of pay.” Id. at 245. If Poe worked over forty hours in a week, both the Maryland Wage and Hour Law and the federal Fair Labor Standards Act entitled him to receive overtime. When that happened, his employer, IESI, relied on a federal regulation in calculating how much overtime it owed Poe. He disagreed with that mode of calculation, however, and sued IESI, “claiming that the federal regulation was inconsistent with the Maryland Wage and Hour Law and that, in relying on the federal regulation, IESI had understated the amount of overtime compensation he was due under State law.” Id. The trial court ruled for IESI, granting its motion for summary judgment, and the Court of Special Appeals affirmed that decision. In reaching that conclusion, the Court of Special Appeals examined the pertinent federal and state statutes and regulations, and held that the employer and the trial court had properly relied on the federal regulation and that IESI had paid Poe the right amount of overtime. Read More…

Court of Appeals to Review New Expert-Testimony Requirement for Medical Malpractice Defendants Asserting “Empty Chair” Defense

By: Derek Stikeleather

Although it is well-established Maryland law that a medical negligence plaintiff must support her claim with expert testimony, the Court of Special Appeals recently issued the first Maryland appellate decision to hold that defendants have the same obligation when asserting an “empty chair” defense. Reiss v. Am. Radiology Servs., LLC, 241 Md. App. 316 (2019). The well-established “empty chair” defense asserts that a non-party’s negligence caused the alleged injury.[i] Under Reiss, those asserting the defense now must elicit “expert testimony, to a reasonable degree of medical probability, that the non-party breached the standard of care.”[ii]

Although the rule announced in Reiss is relatively straightforward, the holding’s full implications remain unclear for litigants in medical negligence cases. The Court of Appeals may address these issues on February 6 at oral argument in Reiss. The court can resolve an important unanswered question: Can defendants elicit the testimony from a properly qualified plaintiff’s expert? The Court of Special Appeals’ reasoning in Reiss and existing Maryland law should allow it. Read More…

Choosing the appropriate standard of review, defining ambiguity, and interpreting a promissory note – Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380 (2019).

By Brad McCullough

The Court of Appeals has once again shown that the importance of a case’s legal issues, and not the amount in controversy, drives its decision whether to review a case. In a collection action that started in the District Court of Maryland, and then appealed to the Circuit Court for Montgomery County, the Court of Appeals addressed the appropriate standard of appellate review a circuit court should use when reviewing an appeal on the record from the District Court. The Court also discussed and applied fundamental principles of contract interpretation. In Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380 (2019), in an opinion authored by Judge Clayton Greene, Jr., the Court held that, when sitting as an appellate court, a circuit court reviews the District Court’s factual findings under the clearly erroneous standard, but reviews legal conclusions de novo. That portion of the Court’s opinion is unremarkable. The Court also reminded that “the interpretation or construction of a contract is a legal determination subject to de novo review,” explaining that contracts should be interpreted as a whole, reading separate provisions harmoniously, and striving to do so “in accordance with common sense.” Id. at 392, 395, 396 (latter internal quotation marks omitted and citations omitted). This portion of the Court’s opinion, on the other hand, may help inform the bar about the Court’s attitude toward contract interpretation.     Read More…

Breaking News: The Sky Is Falling, and, According to Washington Post v. McManus, So Was First Amendment Protection Under Maryland’s Online Electioneering Transparency and Accountability Act

By Alan Sternstein

New York Times v. Sullivan, a jurisprudential monument to freedom of the press, confirmed the core role of the press under the First Amendment “‘to secure ‘the widest possible dissemination of information,’” in order “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”  376 U.S. 254, 266, 269 (1964).  Ironic and disappointing it is that the Washington Post, a pillar of the press, would lead the charge among press interests to invalidate Maryland laws requiring certain online platforms to disclose and report the sources and dollar amounts of online, not printed, political advertising.  It did so, moreover, making dubious claims that requiring such disclosures is a material infringement on editorial control and judgment, compels political messages, and imposes, on account of related recordkeeping requirements, an unacceptable burden on press operations.  Accepting these contentions, the Fourth Circuit’s recent decision in Washington Post v. McManus, No. 19-1132 (4th Cir. decided Dec. 6, 2019) (“Washington Post”),[1] invalidated Maryland’s Online Electioneering Transparency and Accountability Act (“Act”), codified at Md. Code Ann., Elec. Law § 13-405.  Notably, none of the plaintiffs in Washington Post or any of the amici supporting them was a person who sought or planned to engage in online political advertising or an organization supported by such persons. Read More…

Seventeen apply for At-Large Vacancy on the Court of Special Appeals

By Diane E. Feuerherd

This afternoon, the Administrative Office of the Courts released the list of seventeen applicants seeking to fill the open at-large seat on the Court of Special Appeals:

Honorable Krystal Quinn Alves, Circuit Court for Prince George’s County
Russell Paul Butler, Maryland Crime Victims’ Resource Center, Inc. in Upper Marlboro
Kurt James Fischer, Venable LLP in Towson
Rickey Nelson Jones, Law Offices of Rickey Nelson Jones in Baltimore
Steven Michael Klepper, Kramon & Graham in Baltimore
James Bradford McCullough, Lerch, Early & Brewer in Bethesda
Honorable Erik Howard Nyce, District Court of Maryland for Prince George’s County
Michael Patrick Redmond, Chief Solicitor of the Baltimore City Law Department
Eldridge Eugene Rice, Jr., from Randallstown
Steven Lee Tiedemann, Powell Recovery Center, Inc. in Baltimore
Tara Sky Woodward, Bradley Arant Boult & Cummings in Washington, D.C.
Terrence Mark Ranko Zic, Whiteford Taylor Preston in Rockville
**Honorable Judith Claibourne Ensor, Circuit Court for Baltimore County
**Honorable Lawrence Paul Fletcher-Hill, Circuit Court for Baltimore City
**Brian Scott Kleinbord, Office of the State’s Attorney for Montgomery County
**Rachel Theora McGuckian, Miles & Stockbridge in Rockville
**Phillip Robert Zuber, Sasscer Clagett & Bucher in Upper Marlboro

This vacancy was created by the recent retirement of Judge Alexander Wright, Jr. The list includes four trial judges and thirteen attorneys (including two Blog Editors, Steve Klepper and Brad McCullough, neither of whom participated in the preparation or publication of this post).  The last five, marked by a double asterisk (**), are pool candidates, having received the Appellate Courts Nominating Commission’s nomination for a prior At-Large Court of Special Appeals vacancy within the past two years; pool candidates receive automatic consideration by the Governor. The remaining applicants will be interviewed by the commission, on February 4 and 5, 2020.

Live Webcast of the En Banc Fourth Circuit’s Oral Arguments in the Emoluments Case to Begin at 9 a.m. Today

Earlier this week, Blog Editor Derek Stikeleather wrote of In re Trump, the emoluments case brought against President Trump by the State of Maryland and the District of Columbia. Due to public interest, the oral arguments will be webcast live (audio only), starting at 9 a.m. this morning.

December 2019 Maryland Certiorari Grants

Happy holidays from the Maryland Appellate Blog! Yesterday, the Court of Appeals granted review in three criminal cases and five civil cases. One of the civil cases, MIA v. State Farm Mutual Auto Insurance Co., centers on uninsured motorist coverage and will be consolidated with a certified question raising the same issue. Read More…

Say what you mean and mean what you say

By Karen Federman Henry

Energetic discovery disputes during litigation occur frequently, frustrating the parties, their attorneys, and the judges who rule on the disputes along the way.  When the violations are exceptionally egregious, sanctions may be imposed ranging from new deadlines for compliance to dismissal of the lawsuit in its entirety.  Recently, the Court of Special Appeals reversed the trial court’s dismissal of a case based on perceived discovery violations in Colvin v. Eaton Corp., No. CSA-REG-2103-2016 (Oct. 4, 2019).  The reversal reflected the importance of clear communication, both in the details of a discovery order and from the attorneys representing a party when there are changes during litigation. Read More…