University of Maryland Francis King Carey School of Law

Conferences & Symposia

Maryland Court of Special Appeals Oral Arguments

Wednesday, October 11, 2017

On Wednesday, October 11, a panel of judges from the Maryland Court of Special Appeals will hear oral arguments in Maryland Carey Law’s Ceremonial Moot Court Room. The panel will include Chief Judge Patrick L. Woodward, Judge Dan Friedman, and Judge Douglas Nazarian.  Members of the Carey Law community are encouraged to attend. 

Arguments will begin at 9:30 a.m. and are open to the public, but a photo ID will be required for entry. There will be five cases argued, at approximately 45-minute intervals. There will be a brief Q & A session with the panel following arguments (but not about the pending cases).

No back packs, cameras, recording devices, weapons, or computers will be allowed in the court room. Phones are permitted, but must be turned off in the courtroom.  Attorneys may bring briefcases and computers.

Cases to be heard:

Gregory W. Phillips v. J Bar W Inc., et al. (September Term, 2016, No. 1167) – Civil – negligence and strict liability

Summary of Appellant’s Brief:

Appellant is seeking relief for injuries sustained when a rodeo bull escaped a holding pen during an event and trampled him. Appellant first claims that the trial court erred by classifying the bull at issue as “domestic” and then dismissing strict liability claims under both the “dangerous” and “wild” animal theories. Appellant asserts that it is a mistake of law to classify an animal as domestic without regard to the way it is trained, used, or held out to others. Appellant states the court has previously held that “if an animal does what it was trained to do, even if it is of the “domestic” classification, it can be found “dangerous” under the statute and subject to strict liability.” As Appellees held out their rodeo bulls as dangerous and advertised their propensity to “trample and gore a fallen rider,” appellant claims that the bull did as it was trained to do and is therefore dangerous despite its domestic classification and should be subject to strict liability. Appellant also claims that the trial court’s holding should be reversed on this issue because the question of whether or not Appellees knew or should have known of the dangerous tendencies of the rodeo bull was a question of fact to be determined by a jury, and Appellant does not have the burden of proving that Appellees’ had actual notice of the bull’s ability to escape its pen because he was injured in the same manner advertised, by the Appellees, as a dangerous tendency of the rodeo bulls. Appellant’s second claim is that the second count of strict liability was improperly dismissed in this case because when the trial court judge dismissed the original complaint she did not dismiss the strict liability claims, but did so when the amended claim was filed despite the fact that the only change was separating the “wild animal” and “dangerous animal” claims.

Appellant’s third claim is that the trial court improperly dismissed the claim of negligence. The trial court held that the Appellant failed to prove that the “injuries sustained would have occurred as a result of negligence” and therefore failed to prove negligence under both negligence theory and res ipsa loquitur. Appellant argues that the judgment on this claim was improper because Appellees were aware of the strength and power of the bull and as such had a duty to hold the bull in a facility from which it could not escape and failed to do so. They also claim that res ipsa loquitur applies because direct evidence of the cause of the incident is unavailable, but there is enough circumstantial evidence to find that Appellees’ negligence was the cause. Appellant claims that he must only show a greater likelihood that his injury was caused by Appellees’ negligence rather than by some other cause, and that the bull’s escape was significantly less probable absent such negligence. Appellant asks that the holding of the trial court be overturned and the case remanded on this issue so evidence may be presented to a jury.

Summary of Appellee’s Brief:

Appellant brought suit for negligence and strict liability as a result of an incident in which a rodeo bull escaped from a holding pen at a bull-riding exhibit, ran through the crowd, knocked Appellant into a food vendor’s cart, and caused injury. The trial court dismissed the strict liability claim on the grounds that the bull was a “domestic animal” rather than a “wild animal.” The court also rejected the negligence claim on the grounds that the Appellant did not adduce legally sufficient evidence of either breach or proximate cause. Immediately before trial, the appellant also argued for the first time res ipsa loquitur. The trial court, however, rejected the argument on the grounds that it was not applicable. In the brief, Appellee argues that the appellant failed to properly establish the elements of negligence, and therefore, was precluded from making the res ipsa loquitur argument. The Appellee also argues that strict liability does not apply.

Clyde Campbell v. State of Maryland (September Term, 2016, No. 1103) – Criminal – 1st degree murder.

Summary of Appellant’s Brief:

Appellant appeals the trial court’s decision to deny the Defendant’s motion to suppress the incriminating statements made by the Defendant after his arrest for murder. Appellant’s brief argues that the trial court erred in denying the Defendant’s motion to suppress as the officers in the case inappropriately used coercion through incorrect information about the Miranda warnings to obtain a Miranda waiver from the Appellant.

Appellant further argues that the trial court erred in closing the courtroom to the Defendant’s family during jury selection, stating that the right to a fair and public trial required that the Defendant’s family should have been allowed in the courtroom for emotional support. The trial court should have considered alternatives to completely closing the courtroom in this manner.

Summary of Appellee’s Brief:

Defendant’s motion to suppress statements made to the police was denied by the trial court. Despite Campbell’s claim that law enforcement did not honor his right to counsel and that his statements were involuntary, the State argues that the record shows his claim is meritless. The state argues that portions of Campbell’s argument were not preserved and are thus not preserved for review. Those claims that were preserved are countered by the record which shows the statements made were knowing and voluntary under the Miranda standard.

The state also maintains that removing Campbell’s son and sister during voir dire did not implicate the right to a public trial. The removal during a relatively brief portion of the seven-day trial did not violate the triviality threshold to a cognizable public right claim. The exclusion was only for three hours of activity, similar to a time (“two or three hours”) the court found de minimis in Kelly v. State, 195 Md. 136 (2010). 

Saquanna Walker v. Violeta Maratan, et al. (September Term, 2016, No. 1107) – Civil – lead paint

Summary of Appellant’s Brief:

This case comes before the Court of Special Appeals regarding two discovery decisions made by the trial court. Appellant, Ms. Walker, is suing Appellees for lead-paint poisoning that occurred throughout her childhood. In an effort to gather evidence, Ms. Walker attempted to get her childhood home tested, but the current resident refused to give her access. Ms. Walker had to petition the court to gain access to the home to test for the presence of lead paint. By the time the tests came back, the discovery deadline had already passed. Therefore, Appellees filed a motion to strike the report confirming the presence of lead paint. The trial court granted the motion, and the Appellees, since there was no evidence of lead paint, filed a motion to strike the Appellant’s expert testimony as to the source of the lead paint. The Appellant’s expert also concluded his report based solely on the diagnosis of other professionals. Therefore, the Appellees argued that the Appellant’s expert lacked the factual basis to conclude that Ms. Walker suffered from lead paint poisoning, and that the lead paint within her childhood home caused the injury. The trial judge granted Appellees’ Motion to Exclude. Without evidence of source and an expert, the trial court granted Appellees’ Renewed Motion for Summary Judgment. Appellant now appeals, claiming that the exclusion of her expert and the exclusion of the report were both abuses of discretion.

Appellant’s argues that the exclusion of their report of the Property was solely because the production of the report fell outside the discovery deadline. Appellant argues that the production of evidence outside of discovery requires the court to consider factors including the reason the document was not produced and prejudice to the defendants. Similarly, the Court of Appeals has cautioned that excluding dispositive evidence solely for the fact of late production is a draconian measure, and should not be used indiscriminately without consideration of the factors. Appellant argues that the Appellees were not prejudiced, and the trial court failed to consider any factors in excluding their report, including the fact that the Appellant tried in good faith to get the report as soon as possible and had to seek judicial intervention to gain access to the home to perform the test. The refusal to produce the report was not willful or intentional, but simply the fact that the report did not yet exist. For the expert testimony, Appellant similarly argues that the case Levitas v. Christian, a case recently decided by the Court of Appeals, was based on the same factual circumstances and arguments of Appellees. The Court of Appeals said that the study of a patient from other doctors, and the factual basis used by the expert to discover the source were sufficient even if the doctor did not have personal knowledge. Therefore, the Appellant argues that the trial court abused its discretion, and that its judgment must be overturned.

Summary of Appellee’s Brief:

This case arose as a suit for negligence and violations of the Maryland Consumer Protection Act against several property owners due to lead ingestion. Saquanna Walker, Appellant, claims that she was exposed to lead during the year in which she lived at a home owned by Appellees. Ms. Walker subsequently visited and resided in nearby homes that tested positive for lead paint. Two weeks after the close of discovery, Ms. Walker provided an environmental report verifying that the Kenwood property contained lead paint.

Appellees argue three issues for the affirmance of summary judgment.  First, Appellees argue that the trial court was within its discretion to exclude the environmental report from evidence. The report was produced after the discovery deadline, which itself was extended. Appellant had ample time to procure the report, and her delay prejudiced Appellees’ motion for summary judgment. Because the trial court heard all of these facts through argument and writing, the trial court adequately considered the Taliaferro factors for sanctioning discovery violations.  Accordingly, summary judgment in favor of Appellees was proper because Appellant acknowledged that her case was not viable without the report.

Second, Appellees argue that the trial court was within its discretion to exclude the testimony of Dr. Klein, Appellant’s expert, regarding the source of lead exposure. Dr. Klein did not rule out other potential sources of lead exposure. Thus, he lacked sufficient facts to support his opinion that the Kenwood property, rather than the other lead sites, was a substantial contributing factor to the levels of lead found in Ms. Walker’s blood. And even if the environmental report were not excluded, the locations of the positive results undermined the causal linkage proposed by Dr. Klein.

Third, Appellees argue that the trial court was within its discretion to exclude Dr. Klein’s testimony as to Ms. Walker’s injuries. Dr. Klein failed to diagnose or explain those injuries with sufficient specificity. Instead, he relied on general information about outcomes correlated with lead exposure. Because Dr. Klein did not determine the role of personal, medical, or socio-economic factors, Dr. Klein could not provide the causal linkage between the generalized effects of lead exposure and the specific injury alleged by Ms. Walker.

Dominick Comegys v. State of Maryland (September Term, 2016, No. 2669) – Criminal – drug trafficking and possession of firearms.

Summary of Appellant’s Brief:

This case raises two issues: 1. Whether evidence introduced by the State was sufficient to establish that the Appellant had constructive possession of drugs and a firearms; 2. Whether the trial court erred in allowing a detective to testify regarding an anonymous tip that another detective had received regarding the Appellant's possible possession of a firearm. 

When the Appellant was arrested, he was not in actual possession of either drugs or a firearm. Therefore, the State had the burden of proving Appellant was in constructive possession of the contraband. In order for Appellant to have had constructive possession, the evidence must establish that that he exercised knowing dominion and control over the contraband. Appellant argues that the evidence introduced by the State was insufficient to directly show that he had knowing control. Appellant also argues that the evidence introduced was insufficient to support an inference of knowledge by Appellant. 

During trial, the court admitted testimony by a detective, stating that a second detective received an anonymous tip that Appellant was possibly in possession of a firearm. The Appellant contends that this evidence should have been ruled inadmissible as hearsay if it was admitted to prove that the Appellant was in fact possessing a firearm. Alternatively, Appellant argues that the testimony was unfairly prejudicial if it was admitted to show why the police were there in the first place. Finally, Appellant argues that admitting the evidence was not merely a harmless error because its admission contributed to the rendition of a guilty verdict. 

Summary of Appellee’s Brief:

This case comes on appeal following a conviction of Mr. Comegys for possession of cocaine, possession with intent to distribute cocaine, possession of a firearm with nexus to drug trafficking crime, and possession of a firearm after being convicted of a drug felony. The questions on appeal are: 1) whether the state established legally sufficient evidence to sustain a conviction; and 2) whether the trial court exercises sound discretion in the admittance of non-hearsay testimony.

The first question is reviewed under a standard with great deference to the trial court, asking whether a reasonable trier of fact could have come to that conclusion. The Appellant is not challenging whether there could be intent adduced from his possession, but whether there was legal evidence sufficient to conclude he was in fact in possession of the drugs and handgun, which were located in a home that he lived in. To establish possession, Appellee asserts that they must prove knowledge of the item and either actual or constructive control over the item. Appellee outlines four factors to consider in establishing knowledge and constructive control: 1) the defendant’s proximity to the contraband; 2) the fact that the contraband was within view or otherwise known to defendant; 3) ownership or possessory right in the premises where the contraband was found; and 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use of the contraband.  Appellee goes on to outline the observations and testimony that was given at trial of Appellant engaging in “hand-to-hand” transactions and going in and out of the home at issue. Appellant was placed under arrest and a large amount of money was found on him, Appellant had also been in possession of keys to the home in question and had reported that as his address to a government agency one month prior to arrest. In the home, the police found a two scales with drug residue, a bag of cocaine, and a loaded handgun, all in a small common area kitchen just inside the door. Appellee argues that the contraband, Appellant’s nexus to the premises in distributing contraband, and his possessory interest in the property are sufficient to establish knowledge and control.

The second issue is reviewed under a standard of abuse of discretion. The specific testimony at issue was what information the supporting officer received that made him act to make the arrest. The supporting officer testified that he was told that the original officer had observed the Appellant make “hand-to-hand” transactions and that he was possibly in possession of a handgun. Appellant objected and now claims that this was inadmissible hearsay. Appellee asserts that this was not hearsay because it was not offered for the truth of the matter asserted. Appellee demonstrates that the use of “possible” and omission of the fact that the information was passed to the officers by an informant, demonstrated that the statement was not to prove its truth to the jury. Appellee argues in the alternative that the context of the statement, even if erroneous to admit, was harmless considering the other information he testified to.  

Mayor and City Council of Baltimore, et al. v. Melvin Kodenski (September Term, 2016, No. 1664) – Civil – real property

Summary of Appellant’s Brief:

Appellees’ property suffered damage in a fire that destroyed any possible use of the building. Under the Baltimore City Zoning Code § 13-404(1), the property owner was required to obtain a building permit, after the destruction from the fire, in order to preserve the use of the property as a tavern. Appellee justified not getting the permit because (1) the permit has no effect on the continued validity of his use of the property as a tavern, and (2) the order by the city to repair the property is enough to validate the continued use of the property as a tavern.

Appellees argue that a zoning permit is essential to continued nonconforming use of the property in the event of a fire. If Appellee cannot obtain a zoning permit, then Appellee can only use the property in a conforming manner. Additionally, the fact that the property was operated as a tavern prior to the fire, does not give the Appellee the right to continue the nonconforming use after the fire. Appellant also argues that the repair notice was not a license to operate the tavern or a replacement zoning permit, and Appellee cannot use the order to repair the building as justification for bringing the property back to nonconforming use.  Appellants also note that the property has not operated as a tavern for over a year. This is not in compliance with § 13-407(a) which requires the Appellees’ active and continuous operation as a tavern for more than 12 consecutive months.

Summary of Appellee’s Brief:

Lillie Driver and her daughter, Dale Watkins, have owned and operated a tavern on the first floor of their property since 1987 or 1988. The property is located in a residentially zoned district and has in the past operated a tavern as a Class III “nonconforming use;” however, the tavern was closed following a fire to an adjoining row house in 2014. A year later, the Baltimore City Department of Housing and Community Development issued a violation notice to Ms. Watkins, finding that the property was “unfit for human habitation or other authorized use.” Ms. Watkins was ordered to obtain a building permit, which she never obtained as she believed it was unnecessary as she was not changing any part of the structure. By the end of 2015, Ms. Watkins and her mother had completed repairs on the property which passed physical inspection by the Fire Department on December 23, 2015. 

When the Zoning Administrator denied Ms. Watkin’s application to continue the use of the property as a non-conforming use, she appealed. The Board affirmed the zoning administrator’s decision. Melvin Kodenski, Esq. (representing the owners of the property) filed a petition for judicial review in his own name. The lower court disagreed with Baltimore City’s argument that the owner’s failure to obtain the necessary permits constituted sufficient grounds to affirm the Board’s decision. Appellants now argue that the lower court should have affirmed because (1) nonconforming uses are disfavored, (2) based on the plain language of § 13-404 of the Zoning Code and the fact that the owners never obtained a permit, the property must now be made to conform to its R-7 zoning, and (3) in Union Square Ass’n Inc. v. Marc Lounge Inc. this court held that in the absence of a building permit and beginning work on a property of nonconforming use, the property will be required to conform to the regulations of the zoning district. Appellants also argue that the lower court should have affirmed the Board because under § 13-407 of the Zoning Code the tavern had ceased operating for a period over 12 consecutive months. 

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Copyright © 2018, University of Maryland Francis King Carey School of Law. All Rights Reserved