In Maryland, a plaintiff that prevails at trial may inadvertently waive its right to appeal by accepting the benefits of a judgment.
Stewart A. Sutton twice had an adverse party’s appeal dismissed based upon the application of the acquiescence rule. The acquiescence rule bars a party from taking the “inconsistent position of accepting the benefits of a judgment and then challenging its validity on appeal”. Turner v. Turner, 147 Md.App. 350, 381 (2002). Accordingly, the “right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or otherwise taking a position which is inconsistent with the right of appeal”. Rocks v. Brosius, 241 Md. 612, 630 (1966); Suburban Development Corp. v. Perryman, 281 Md. 168, 171 (1977) (holding that a litigant cannot “both voluntarily accept the benefits of a judgment or decree and then later be heard to question its validity on appeal”).
Stated another way, “one cannot ‘have his cake and eat it too’ by accepting the rewards of those portions of the decree he finds palatable while reserving the right to contest the balance”. Kircherer v. Kircherer, 285 Md. 114, 117 (1979).
Stewart A. Sutton successfully represented a Montgomery County property owner who had lost her home in tax foreclosure case. The trial court vacated the judgment foreclosing the property owner’s right to redeem her real property. The property owner then redeemed her home by paying the taxes, premiums, costs, and attorney’s fees that she owed to the tax sale purchaser; and the tax sale purchaser deposited her checks.
The tax sale purchaser then filed an appeal to challenge the vacation of the judgment foreclosing the property owner’s right to redeem her property. Stewart A. Sutton on behalf of the property owner moved to dismiss the tax sale purchaser’s appeal on the grounds that it had accepted the benefits of the judgment.
In an unreported opinion, the Court of Special Appeals agreed: “Katana waived its right to appeal the December 21, 2016, order vacating the judgment foreclosing Ms. Brunson’s right of redemption when it later accepted benefits that flowed from the judgment. Katana accepted a refund of the funds it had paid to the county. And Katana also received the payment of interest — some at a rate of 20% per annum — on funds it had advanced. It is undisputed that Katana negotiated the checks that were tendered in payment of the reimbursements and interest. We conclude that Katana has therefore waived its right to appellate review of the judgment it has challenged on appeal, and the appeal must be dismissed”. See https://www.courts.state.md.us/sites/default/files/unreported-opinions/2427s16.pdf
Even if Katana had not waived its appellate rights by accepting the benefit of the judgment, the Court of Special Appeals would have affirmed the lower court’s decision to vacate the judgment on the grounds that the property owner had never been served with process in the underlying tax foreclosure litigation, thereby depriving the trial court of jurisdiction: “In the interest of completeness, we note that, even if we did not dismiss the appeal based upon Katana’s acquiescence, we would have affirmed the judgment of the circuit court vacating the foreclosure judgment for lack of jurisdiction. There was adequate evidence before the circuit court to support the court’s conclusion that Ms. Brunson had not been personally served. Further, as Ms. Brunson argued in her motion to vacate, neither Katana nor Fedhop sought an order of court to permit service via publication pursuant to Maryland Rule 2-122(a), which permits such service only upon a showing “that reasonable efforts have been made in good faith to locate the defendant.” There was evidence before the circuit court that showed that Ms. Brunson would have been located if “reasonable efforts” had been exerted by someone who wanted to locate her. Cf. St. George Antiochian Orthodox Christian Church v. Aggarwal, 326 Md. 90, 104 (1992) (The Court of Appeals rejected tax sale purchaser’s claim of adequate efforts to locate owner, stating that the purchaser’s limited search reflected “the type of manifest indifference which we have held cannot be countenanced without offending concepts of due process in a case of this kind.”)
In May 2017, Stewart A. Sutton obtained a $380,806 default judgment for a client who had been stabbed by an acquaintance. The client suffered a punctured stomach, underwent emergency surgery, and was hospitalized for a week. He was left with a conspicuous 6 inch scar on his lower torso.
The defendant pleaded guilty to second degree assault and carrying a dangerous weapon with intent to injury. The defendant did not file an Answer to the Complaint.
The client was awarded the following damages:
$ 25,678 Past medical expenses;
$ 5,129 Lost wages;
$100,000 Pain, suffering, and disfigurement; and
$250,000 Punitive damages.
Practice pointer for clients: Punitive damages are available in Maryland when you are intentionally injured by another person. Intention torts include assault, battery, invasion of privacy, defamation, and intentional infliction of emotional distress.
Punitive damages cannot be discharged in bankruptcy. See 11 U.S.C. § 523(a)(6).
I recently represented a man who had a child with his girlfriend, and they were raising the child together. The problem was that the mother was married to another man at the time the child was born.
In Maryland, a husband is the presumptive father, if the child was conceived or born during the marriage. See Estates & Trust Article § 1-206(a) (“A child born or conceived during a marriage is presumed to be the legitimate child both spouses”) and Family Law § 5-1027(c).
On behalf of my client, I filed a complaint in Montgomery County Circuit Court to terminate the rights of the presumptive father (now ex-husband) and for the court to award my client joint legal and physical custody of the child as the biological father.
Fortunately,the presumptive father (ex-husband) consented to having his parental rights terminated and the mother agreed that the biological father should be awarded joint legal and physical custody of the child.
At least several times a year, I receive a telephone call from a person who is dissatisfied with the divorce settlement reached by using a collaborative lawyer in Maryland. A collaborative lawyer is retained for the sole purpose of negotiating a divorce settlement. The collaborative divorce lawyer will not represent you in divorce litigation in the event that a settlement is not reached with your spouse. And therein lies the problem.
The collaborative process involves the spouses retaining separate collaborative lawyers for the exclusive purpose of negotiating a divorce settlement. The process frequently involves hiring one or more of the following advisors: a financial planner; a therapist for the children; a custody evaluator; a child visitation coordinator; psychotherapists for each spouse; appraisers for real and personal property; and even an animal behaviorist for the family pet. The result is that the divorcing couple spends a small fortune on professionals in attempting to reach a divorce settlement agreement.
The high upfront costs incurred by the spouses create a strong financial incentive for the divorcing couple to reach an agreement. At the same time, the collaborative lawyers are pushing the parties as hard as they can into settling their divorce case. Very few clients have the fortitude to resist the pressure exerted by a collaborative lawyer to enter into an unfair settlement, because the client has already invested an enormous amount of time, effort, and money into the collaborative divorce process.
Most non-collaborative lawyers believe that the parties can reach the same, if not a better, result by retaining a traditional divorce lawyer. The reason why is that almost all divorce cases are resolved without a trial for 3 reasons. First, it usually a foregone conclusion how the family court judge would rule in the event of a trial. Secondly, litigation is expensive and most parties cannot afford a trial. Thirdly and most importantly, the court system is designed to help the parties reach a settlement. If every child custody or divorce case went to trial, there would be a multi-year backlog on obtaining a trial date.
Practice pointer for clients: If your collaborative lawyer is recommending a settlement that you believe is unfair, unreasonable, or not equitable, you should immediately stop the collaborative law process and retain a competent family lawyer attorney to sue your spouse for divorce.
In Maryland, a creditor had 3-years to sue a debtor to collect payment. However, the 3-year statute of limitations would restart if the debtor made a payment to the creditor. Not surprisingly, creditors often would ask debtors to make a small payment so as to trick the debtor into reaffirming the debt and restarting the 3-year statute of limitations.
In 2016, Maryland enacted a new statute to protect debtors in this situation. Maryland Courts & Judicial Article section 5-1202(a) prohibits a creditor from initiating a consumer debt collection action after the applicable statute of limitations has expired. Section 5-1202(b) provides that any payment made by the debtor after the statute of limitations has expired does not revive or extend the limitations period.
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.
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.
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.
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.
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.