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Application of Maryland’s Doctrine of Contributory Negligence in a Personal Injury Case

Maryland follows the doctrine of contributory negligence. If a personal injury plaintiff’s negligence contributed in causing the accident, then the plaintiff is not entitled to any recovery.

The doctrine of contributory negligence was recently applied in the July 6, 2017 reported appellate opinion in Wooldridge v. Abrishami. The Court of Special Appeals affirmed the verdict of a Montgomery County jury that the plaintiff, who had had been struck in a crosswalk by a left turning vehicle, was contributory negligent and, therefore, was not entitled to receive any compensation.

In her personal injury lawsuit, Ms. Woolridge alleged that she was crossing the street in a crosswalk and that she was struck by Defendant Abrishami’s vehicle as it made a left turn. The pedestrian claimed that she did not see the vehicle prior to being struck.

The driver of the vehicle claimed that she did not see the pedestrian prior to striking her.    The driver asserted the affirmative defense of contributory negligence in her Answer.

The pedestrian testified that she had an unobstructed view of the intersection, that she stepped off the curb into the crosswalk without observing any vehicles, but she didn’t recall how many steps she had taken prior to being struck. A police officer testified that the driver had completed about 98% of her left turn prior to the collision and the vehicle was almost parallel to the street.

The Appellate Court concluded that it was reasonable for the jury to conclude that the pedestrian was contributory negligent in causing the collision, because the pedestrian was not paying adequate attention while crossing the street.

The duty of a pedestrian was explained in Merrified v. C. Hoffberg Co., 147 Md. 134, 142 (1925) as follows: “A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, and thus protect himself from danger. The law does not say how often he must look, or precisely how far, or when or from where. If, for example, he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again. The law does not even say that, because he sees a wagon approaching, he must stop [until] it has passed. He may go forward unless it is close upon him; and whether he is negligent in going forward, will be a question for the jury.”

Practice Pointer: A crosswalk is not a safe harbor for pedestrians.  A pedestrian has a duty to look for approaching vehicles, judge the speed and distance of the approaching vehicle, and take measures to avoid being hit.

Maryland Condominium Act requires that the buyer receive all of the condominium association’s operating documents

When a person enters into a contract to purchase a condominium unit in Maryland, the seller is required to provide the purchaser with the Declaration of the condominium association, the Amendments to the Declaration, the Bylaws; and the rules and regulations of the condominium.  See Maryland Real Property Code section 11-135(a)(1-3).  These documents are known as the “Resale Package”.

The seller is also required to provide the buyer with a “Resale Disclosure Certificate” containing additional information about the condominium association and the unit being sold.  The condominium association is responsible for preparing the first ten items in the “Resale Disclosure Certificate”; and the seller is responsible for providing the remaining information.  See Maryland Real Property Code section 11-135(a)(4-6).

The seller must provide the “Resale Package” and “Resale Disclosure Certificate” to the buyer 15-days prior to closing.  The buyer then has 7-days from receipt of the “Resale Package” and “Resale Disclosure Certificate” to cancel the contract.  Maryland Real Property Code section 11-135(f).

The seller or his or her real estate agent requests that the condominium association or its property management company prepare the “Resale Package” and “Resale Disclosure Certificate”.   Most often, the “Resale Package” and “Resale Disclosure Certificate” have been or will be uploaded to a cloud service by the property management company; and the seller will pay a fee to download the documents from the cloud.  The seller (or his or her real estate agent) will then transmit the documents to the buyer or the buyer’s real estate agent.

A problem may arise if the all of the condominium associations’ operating documents have not been uploaded to the cloud service.  For example, there may be a new Amendment to the Declaration that prohibits pets or limits the type or size of pets.  At the time of purchase, the buyer will not be aware of the restrictions or prohibitions contained in the new Amendment; and the buyer might not discover the restrictions or prohibition contained in the  new Amendment for many years.

For example, the pet Amendment may authorize current unit owners to keep their existing pets, but prohibit any new pets.  From the new owner’s perspective, he or she believes that the condominium association is pet friendly, because many of his or her neighbors have dogs.  The new owner owner will only discover the pet prohibition Amendment when he or she acquires a puppy and is cited by the condominium association for violating its rules.

The new member will object on the grounds that the “Resale Package” did not contain the pet prohibition Amendment and that he or she would have cancelled the contract to purchase the unit if he or she had received the pet prohibition Amendment.  The Board of Directors of the condominium association or its attorney will nevertheless claim that the pet prohibition Amendment is enforceable against the new unit owner on the erroneous grounds that the new unit owner had constructive or imputed notice of the Amendment, because the Amendment was recorded in the land records of the local county.

In fact, the pet prohibition Amendment is not enforceable against the new owner, because the condominium association violated the Maryland Condominium Act and the Maryland Consumer Protection Act by failing to provide the seller with a complete and accurate “Resale Package”.    Otherwise, the requirement that the buyer receive all of the condominium association’s operating documents as part of the “Resale Package” in order to make an informed decision as to whether or not to purchase the condominium unit would be nullified if the buyer could be charged with constructive or imputed notice of the pet prohibition Amendment.

 

Paternity testing for Husbands in Maryland

In Maryland, a child born or conceived during marriage is presumed to be the legitimate child of both spouses.  See Maryland Estates & Trust section 1-206(a).  Often times, the husband suspects or knows that he is not the biological father of a child born during the marriage.  If the husband raises the child as if he were the father, it will be extremely difficult for the husband to disavow paternity and evade paying child support, if and when the parties separate.

The Court will deny the husband the right to conduct paternity testing in a custody or child support case, unless it is in the best interest of the child to establish that the husband is not the biological father.  Maryland courts typically deny a husband’s request for paternity testing, because courts believe that it would be unfair for the child to lose the only father he or she has ever known.  For the same reason, Maryland courts routinely deny a wife’s request for paternity testing in order to prove that the husband is not the biological father.

However, the court is likely to order paternity testing for a married couple when a putative father (a man not married to the mother) is willing to assume the responsibility of raising the child with the mother and paying child support.

(If the mother is unmarried, then both the mother and the putative father have the right to request paternity testing during a child support or custody case, because there is no presumption as to who is the biological father of a child born to an unmarried mother).

What steps should a husband take if he suspects that he is not the biological father of a child born by his wife?  He should immediately conduct private paternity testing.  If the DNA test establishes that the husband is not the biological father of the child, he should consider the following options: (a) separating from his wife on the grounds of adultery; (b) asking his wife to seek child support from the putative-biological father; and/or (c) entering into an agreement in which the wife acknowledges that the husband is not the biological father of the child and that it would be in the child’s best interest to obtain paternity testing in the event of a separation or divorce.

 

 

 

Is Stewart A. Sutton the top lawyer in Montgomery County, Maryland?

I was recently offered the opportunity to purchase this impressive plaque for $159 dollars from a company.  I declined the invitation for two reasons.

First, the award is a shameless marketing scheme from a business that sells fake honors.

Secondly, the use of “top” by an attorney in advertising materials  violates Rule 7.1(c) of the Maryland Lawyers’ Rules of Profession Conduct.  This rule prohibits an attorney from comparing “the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated”.  According to Maryland Bar Counsel, a Maryland attorney should never use superlatives, such as “top”, “super”, “premier”, “best”, “most aggressive”, or “most successful”, because “it is almost impossible for the lawyer to factually substantiate” such claims.  My advice to clients is to disregard all advertising that claims that the attorney is “super”, “best”, “top”, “greatest”, or “most” when searching for an attorney in Montgomery County and/or Maryland.

Is Stewart A. Sutton the best divorce and family lawyer in Germantown, Maryland?

I was recently offered the opportunity to purchase this impressive acrylic award for $110 dollars from a company.  I declined the invitation for two reasons.

First, the award is a shameless marketing scheme from a business that sells fake honors.

Secondly, the use of “best” by an attorney in advertising materials  violates Rule 7.1(c) of the Maryland Lawyers’ Rules of Profession Conduct.  This rule prohibits an attorney from comparing “the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated”.  According to Maryland Bar Counsel, a Maryland attorney should never use superlatives, such as “top”, “super”, “premier”, “best”, “most aggressive”, or “most successful”, because “it is almost impossible for the lawyer to factually substantiate” such claims.  My advice to clients is to disregard all advertising that claims that the attorney is “super”, “best”, “top”, “greatest”, or “most” when searching for an attorney in Montgomery County and/or Maryland.

Vacating a tax sale foreclosure in Maryland

In December 2016, Stewart A. Sutton successfully represented a client in vacating a tax sale foreclosure in Maryland.  The client, who resides in southern California, bought a home in Germantown, Maryland, for a relative in 2010.  The home was titled in the client’s name.  The client never resided at house in Germantown.  In 2011, the client had paid the balance of the mortgage on the Germantown house.

The client expected the relative to forward the property tax bills or that the relative would pay the property tax bills. However, the relative did neither.  Even worse, the relative failed to notify the client about notices of overdue property taxes from Montgomery County, the fact that the home was sold in a tax sale, that the tax sale purchaser filed a complaint to foreclose the right of redemption in 2014, that the tax sale purchaser posted the home with notices, that a Judgment foreclosing the right of redemption was entered in October 2015, and that the relative was evicted from the home in July 2016.

The client discovered the tax sale by happenstance in October 2016.  Stewart A. Sutton was retained to vacate the tax sale on the ground that the tax sale purchaser had never served the client in California with the Summons and Complaint.  The result was that the client had no notice of the tax sale purchaser’s Complaint and resulting Judgment.  In December 2016, the court granted the client’s motion to vacate the tax sale on the grounds that the tax sale purchaser had never served the Summons and Complaint on the client.

The Maryland Tax-Property Code provides the tax sale purchaser must serve the Summons and Complaint on the property owner.  See Tax-Property Code sections 14-839(a)(3) (“On the filing of the complaint, the court shall issue a summons to procure the answer and appearance of all the defendants as in other civil actions”) and 14-839(a)(5) (“Notice to a defendant may be made in any other manner that results in actual notice of the pendency of the action to the defendant”).

Maryland Rules of Court reiterate that the Summons and Complaint must be served on the property owner.  Maryland Rule 14-503(a) requires that the summons and complaint for a tax sale foreclosure “shall be served in accordance with Rule 2-121 on each defendant named in the complaint whose whereabouts are known”.   But if the property owner’s whereabouts are not known, Maryland Rule 14-503(b) requires that a party obtain substituted service via Maryland Rule 2-122.

Rule 2-122(a) provides that when a plaintiff in an in rem action “has shown by affidavit that the whereabouts of the defendants are unknown and that  reasonable efforts have been made in good faith to locate the defendant, the court may order service by the mailing of the notice to the defendant’s last address and” by either posting, publication, or “any other means of notice that it deems appropriate in the circumstances”

A tax sale purchaser may attempt to claim that it made a reasonable, good faith effort to locate the property owner by conducting a Lexis/Nexis’ “Comprehensive Person Reports” search and that it was not required to obtain an actual order for substituted service pursuant to Maryland Rule 2-122(a).  See Voltolina v. Property Homes, LLC, 198 Md.App. 590 (2011) (permitting a tax sale purchaser to forego obtaining an order for substituted services, because the tax sale purchaser had complied with all of the other requirements of Maryland Rule 2-122(a), including having conducted a reasonable, good faith search to locate the property owner).   However, a Lexis/Nexis search is neither reliable nor accurate.  The results of a Lexis/Nexis search may not show the property owner’s actual current address, especially if the property owner never resided in the foreclosed property.  Professional process servers and skip tracers use the TransUnion Risk and Alternative Data Search (“TLO”) to locate individuals.

Practice Pointer to clients: The court will NOT hear your motion to vacate a Judgment foreclosing the right of redemption, unless you first deposit into the Court’s Registry the amount owed in back taxes as well as the statutory attorney’s fees and expenses owed to the tax sale purchaser.  See Canaj, Inc. v. Baker & Division Phase III 391 Md. 374 (2006).  The rationale is that the Court will not exercise its equity powers, unless the property owner can first demonstrate that it has the financial means to redeem the property.

Avoiding an expensive adverse possession lawsuit to quiet title

Stewart A. Sutton was recently retained to quiet title to a property in Montgomery County; and he found a creative solution to avoid protracted adverse possession lawsuit. The property was owned by the client’s grandmother, who died more than 40 years ago. Twenty-five years later, the client’s mother opened an estate, was appointed Personal Representative, and conveyed the property to herself. The client’s mother believed that she had acquired title by adverse possession, because she had paid the taxes on the property for more than 20-years. Her siblings did not object when she conveyed the property to herself.

Stewart A. Sutton’s clients, who were appointed Personal Representatives of their mother’s Estate, wanted to sell the property. However, there was an issue as to whether the property was insurable by a title company, because their mother had not obtained a court order quieting title. The clients retained Stewart A. Sutton to file a quiet title action against all heirs of their grandmother. Such litigation would have been expensive and time-consuming in terms of identify, locating, and serving dozens of relatives.

Working with the title company, Stewart A. Sutton found a solution that would allow his clients to immediately sell the property. Maryland Estates & Trust Article 9-106(c) provides that when property, which was received from a personal representative of an Estate, is sold by an heir, “the purchaser takes good title free of claims of the estate and incurs no personal liability to the estate”. This code provision allows a purchaser to obtain good title from an heir, even if the personal representative of the estate had improperly conveyed the property to the heir.

Montgomery County Property Tax Credits for spouses of fallen police officers and emergency workers, blind persons, and disabled veterans

It is not common knowledge that Montgomery County offers a 100% tax credit on real property for surviving spouses of a fallen law enforcement officers and rescue workers. See Montgomery County Ordinance Section 52-18N.

Montgomery County also provides a tax credit for homeowners who have a permanent and total disability as determined by the Social Security Administration, the Railroad Retirement Act, as a member of the U.S. armed forces, or by any agency of a municipal corporation, county, state, or federal government. See Montgomery County Ordinance Section 52-11.

Maryland also provides that disabled veterans and blind persons, as well as their surviving spouses, are entitled to a 100% tax credit on real property. Montgomery County even allows disabled veterans and blind persons to receive a refund of property taxes paid for 3 years. See Montgomery County Ordinance Section 52-18G and Maryland Tax-Property Code section 7-208.

Constructive desertion as grounds for divorce in Maryland

Stewart A. Sutton recently represented a client whose spouse was adamant in obtaining a divorce on the grounds of constructive desertion. The parties’ pre-nuptial agreement provided that the spouse would receive highly favorable alimony benefits if a divorce was granted on fault grounds. At mediation, the parties reached an agreement to obtain a divorce on the grounds of a 1-year separation and that the spouse would not receive any alimony.

Family Law § 7-103(a)(2) provides that desertion is a grounds for divorce, if:
(i) the desertion has continued for 12 months without interruption before the filing of the application for divorce;
(ii) the desertion is deliberate and final; and
(iii) there is no reasonable expectation of reconciliation.

Desertion and constructive desertion are now infrequently used as a grounds for divorce, because Family Law § 7-103(a)(4) provides that a 12 month separation by itself is a grounds for divorce. In fact, the decline of the use of these grounds for divorce started more than 30-years ago. Lemley v. Lemley 102 Md.App. 266, 281 (1994) (noting that constructive desertion as a grounds for divorce is rarely used due to the introduction of no-fault divorces of a voluntarily 1-year separation and involuntary 2-year separation in 1983).

Actual desertion occurs when a spouse leaves the home without justifiable cause. The defense to actual desertion is constructive desertion. Unless the separation was or becomes a mutual decision, the remaining spouse’s grounds for divorce is actual desertion or the leaving spouse’s grounds for divorce is constructive desertion. Flanagan v. Flanagan 181 Md.App. 492, fn. 9 (2008) (holding that if the wife’s departure from the family home did not constitute constructive desertion, the court could have found that she committed actual desertion).

Constructive desertion occurs when a spouse’s conduct compels the other to leave the marital home. The “central issue is whether the offending conduct is so intolerable that the complaining spouse was justified in leaving”. Lemley v. Lemley 102 Md. App. 266, 282 (1994). Constructive desertion occurs when there is a pattern of gross misconduct that renders the continuation of the marriage impossible.

Constructive desertion has always been a difficult grounds to prove; and the spouse seeking a divorce on this grounds of constructive desertion faces a heavy burden. The party must show a pattern of misconduct, not just an isolated incident, which “renders impossible a continuation of the marital cohabitation with safety health, and self-respect”). Sharp v. Sharp 58 Md.App. 386 (1984) (quoting Ches v. Ches 22 Md.App. 475, 482-83 (1974)); Murphy v. Murphy 248 Md. 455, 460 (1968); (holding that there must be a “pattern of persistent conduct which is detrimental to the safety or health of the complaining spouse, or so demeaning to his or her self-respect as to be intolerable”); Stewart v. Stewart 256 Md. 272 (1969).

“This behavior must generally amount to a pattern of persistent conduct”. Sharp v. Sharp 58 Md.App. 386, 393 (1984). As such, “a single act of direct violence may not be sufficient to constitute a basis for a divorce”. Lemley v. Lemley 102 Md. App. 266, 282 (1994).

Marital disagreements, demeaning comments, and expressions that the marriage is over are not sufficient grounds to constitute constructive desertion:”Where the conduct of one spouse demonstrates “mere marital indifference or lack of demonstrated love, or rudeness, or express desire to end the marital relationship, that indifference will not legally justify the other spouse’s departure from the marital household however intolerable such might appear to the demeaned spouse”. Sharp v. Sharp 58 Md.App. 386, 393 (1984) (quoting Bryan v. Bryant 16 Md.App. 186, 191 (1972)); Moran v. Moran 219 Md. 399 (1959) (holding that nagging and jealously are insufficient).

The extreme difficulty of obtaining a divorce based upon constructive desertion was graphically illustrated in Bryan v. Bryan 16 Md.App. 186 (1972). The Court of Appeals found that the husband’s pattern of misconduct was not sufficient to support the wife’s claim of constructive desertion:“That her husband was indifferent and sarcastic towards her, told her that he ceased loving her, wanted her to leave and get a divorce, threatened to (but did not) stop paying the rent, packed her clothes on one occasion, may have been sufficient reasons in the eyes of the wife to justify her leaving but such conduct on the part of the husband . . . was not, in law, so demeaning as to leave her self-respect “shattered beyond repair, which is the legal measure of intolerableness””. Bryan v. Bryan 16 Md.App. 186, 192 (1972) (quoting Murphy v. Murphy 248 Md. 455, 460 (1968)).

In Neff v. Neff 13 Md.App. 128 (1971), the even more egregious misconduct by the husband did not support the wife’s constructive desertion grounds for divorce:“[T]he husband told his wife he did not love her; struck her and knocked her to the floor on one occasion; was intoxicated and used vile language form time to time; his attitude towards her was cool and indifferent; he told her that he didn’t love her, never loved her and could not bring himself to kiss her. This Court held that such conduct did not justify the wife’s leaving the husband and affirmed the decree of the chancellor below denying her a divorce.” Bryan v. Bryan 16 Md.App. 186, 191 (1972). It is no wonder that constructive desertion as a grounds for divorce has fallen out of favor.

Is Stewart A. Sutton one of the 10 Best Personal Injury Attorneys for Client Satisfaction in Maryland?

I received an invitation from the American Institute of Personal Injury Attorneys to be listed as “one of the 10 Best Personal Injury Law Attorneys for Client Satisfaction in Maryland”. For this unsolicited honor, all I had to do was pay a $275 membership fee. In return, I would receive an engraved plaque with my name.

10-Best-Award-American-Institute-of-Personal-Injury-Attorney
I declined the offer for two reasons. First, a Maryland attorney should never use superlatives, such as “top”, “super”, “premier, “best”, “most aggressive” or “most successful”, because it is almost impossible for the lawyer to factually substantiate such claims. My advice to clients is to disregard all print and internet advertising that claims that the attorney is “super”, “best”, “top”, “greatest”, or “most” when searching for an attorney in Montgomery County and/or Maryland.

Secondly, any ranking or rating systems of lawyers is inherently misleading. There is no scientific validity to the selection and rating process used to identify these so-called super, best, or top lawyers. In fact, the legal disclaimer for American Institute of Personal Injury Attorneys acknowledges that its selection system is useless:
Legal-Disclaimer-2

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