author: Weant, J.,

text:
    DONMAR MARYLAND CORPORATION v. KENNETH HAWKESWORTH et ux.
    [No. 5,
    September Term, 1980.]

      Decided October 9, 1980.

    The cause was argued before Gilbert, C. J., and Wilner and Weant, JJ.

      Thomas F. Stansfíeld for appellant.
    No brief or appearance by appellees.
   Weant, J.,

delivered the opinion of the Court.

The question that the appellant, Donmar Maryland Corporation (Donmar), would have us answer affirmatively is the same query to which the Honorable Luke K. Burns, Jr., Circuit Court for Carroll County, correctly and negatively responded. That question, which sets forth the relevant facts as well as the issue, is: Can an unlicensed home improvement contractor recover for repairs performed on a mobile home? This question was disposed of by the granting of Summary Judgment in favor of the defendants (the appellees herein). For purposes of that motion the following fact was, according to Donmar, either admitted or not controverted: That at the time the mobile home in question was damaged, thereby necessitating the repairs performed by Donmar, the appellees, "the owners of said mobile home, together with their minor children, were occupying the same as their home and place of residence....”

On appeal Donmar concedes that Maryland case law holds unenforceable a contract made by an unlicensed person subject to the Maryland Home-Improvement Law, Maryland Annotated Code article 56, sections 245-269A. Harry Berenter, Inc. v. Berman, 258 Md. 290, 265 A.2d 759 (1970). See also S.A.S. Personnel Consultants, Inc. v. Pat-Pan, Inc., 286 Md. 335, 341, 407 A.2d 1139, 1143 (1979). However, it contends that the definition of the term "home improvement” contained in article 56, section 249 (c) "does not lend itself to include mobile homes.”

Section 249(c) provides in pertinent part:

’’Home improvement” means the repair, replacement, remodeling, alteration, conversion, modernization, improvement, or addition to any land or building, or that portion thereof which is used or designed to be used as a residence or dwelling place; and shall include the construction, replacement, or improvement of driveways, swimming pools, porches, garages, landscaping, fences, fall-out shelters and other improvements to structures or upon land which is adjacent to a dwelling house.

Since this provision makes no specific reference to mobile homes, a conclusion that it includes such must be the consequence of our adherence to "[t]he cardinal rule of statutory construction,” i.e., to ascertain and effectuate the actual intent of the Legislature.” Comptroller v. John C. Louis Co., 285 Md. 527, 538, 404 A.2d 1045, 1052 (1979) (citations omitted).

To persuade us that "mobile homes were never intended to be included within the ambit of the [Maryland Home-Improvement Law], Donmar cites various code articles which define the term "mobile homes.” See Maryland Real Property Code Annotated sections 8-208.1 (a) (l)(i) and 8A-101 (b) and Maryland Transportation Code Annotated section 11-134. A reading of these provisions fails to convince us that a mobile home is not a "building ... which is used or designed to be used as a residence or dwelling place____”

Moreover, we find Donmar’s reliance upon Maryland Senate Bill No. 1062, the stated purpose of which was to amend article 56, section 249 (c) so as to "exempt[ ] certain work on mobile homes from the licensing requirements of the home improvement law for a certain period of time” to be unjustified. First, the bill in question lacks authority because, although it was passed by the Senate during the 1980 General Assembly term, the House of Delegates never considered it. Second, the language amending section 249 (c) would have redefined the term "home improvement” to specifically exclude "UNTIL JULY 1, 1981, ... THE REPAIR, REPLACEMENT, REMODELING, ALTERATION, CONVERSION, MODERNIZATION, IMPROVEMENT, OR ADDITION TO A MOBILE HOME.” This language indicates that as unamended, and as it read at the time Judge Burns heard the instant case, section 249 (c) includes mobile homes. Had it been otherwise, the Legislature would neither have attempted to amend section 249 (c), nor in doing so limited the life of its amendment. See Demory Brothers, Inc. v. Board of Public Works, 20 Md. App. 467, 473, 316 A.2d 529, 532, aff'd, 273 Md. 320, 329 A.2d 674 (1974).

Accordingly, the judgment of the Circuit Court for Carroll County must be affirmed.

Judgment affñrmed.

Costs to be paid by the appellant.


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    NEAL BLINKEN v. STATE OF MARYLAND
    [No. 13,
    September Term, 1980.]

      Decided October 9, 1980.

    The cause was argued before Thompson, Lowe and Couch, JJ.

      Phillip M. Sutley for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and J.

      Donald Braden, State’s Attorney for Queen Anne’s County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

The appellant, Neal Blinken, was charged in a thirty-one count indictment with multiple violations of the Controlled Dangerous Substances law of Maryland.

On November 1, 1979 he appeared before the Circuit Court for Queen Anne’s County and entered pleas of guilty to counts 1, 2, 3, and 4 of the indictment. These pleas were provisionally accepted and a pre-sentence investigation was ordered. The appellant appeared for sentencing on January 3, 1980 and moved to withdraw his guilty plea. This motion was denied, and the Circuit Court finally accepted the guilty plea. The appellant was then sentenced to a term of imprisonment of ten years and fined $50,000.00.

By this appeal the appellant presents three questions:

"1. Did the Court abuse its discretion in denying appellant’s request to withdraw his guilty plea prior to sentencing?
2. Was the appellant fully advised of the nature of the charges against him?
3. Was the appellant’s plea of guilty free and voluntary?”

In view of the particular issues raised in this appeal, only a brief statement of the factual background of the case is necessary. Supplementary facts will be provided with our discussion of the issues.

When the appellant and his co-defendant, Kari Lou Pfau, appeared before the Circuit Court on November 1, 1979, they entered pleas of guilty to charges of (1) possession of marijuana in sufficient quantity to indicate an intent to distribute, (2) possession of marijuana, (3) possession of cocaine, and (4) keeping and maintaining a public nuisance, that is, a dwelling house used by drug abusers as a location in which to administer controlled dangerous substances. Miss Pfau also pleaded guilty to a fifth count of conspiracy to distribute marijuana.

The court concurrently asked both Pfau and Blinken if they had been furnished with the charging document, if they had read it, and discussed it with their attorney and if they understood every charge. They separately indicated their understanding of their charges. The court recited the five counts against Pfau, and then received Blinken’s statement that he understood that the first four counts of his indictment were the same as those indicated in the case against Pfau.

The appellant stated his version of the plea agreement between himself and the State. This agreement included the sentencing of Pfau to an agreed ten year suspended sentence, five years probation, a $10,000 fine, and the State’s entering a nolle prosequi on the additional conspiracy charges. Additionally, the appellant indicated his understanding that in return for his pleading guilty to four charges, the remaining charges would not be pursued by the State and that he would be sentenced to ten years imprisonment and a $50,000.00 fine. The appellant was . advised of his right to plead not guilty to the charges, to elect to be tried by a judge or a jury of twelve persons, and to require the State to prove its case beyond a reasonable doubt to the judge or to a unanimous jury. The factual basis of the pleas was then presented by a Sergeant of the Maryland State Police. The guilty pleas were tentatively accepted pending the receipt of pre-sentence investigations.

On December 12,1979, the Circuit Court received a letter from the appellant indicating that he did not wish to pursue his guilty plea, and that he wished to preserve his right to appeal. When he appeared for sentencing on January 3, 1980, the appellant moved through counsel to withdraw the guilty plea. The appellant testified that he originally pleaded guilty because of certain mental and psychological pressure on him. He stated that the only reason for his guilty plea was the consideration given to Miss Pfau in the plea agreement, and that he was in a state of shock when he entered the plea. In that condition he claimed that he would have sold his life in order to spare Miss Pfau any unnecessary pain.

Miss Pfau testified as to her own belief that her plea agreement was linked with the plea of Blinken. After hearing the State’s Attorney express his opposition to the appellant’s motion to withdraw the guilty plea, the court overruled the motion, and sentenced the appellant.

I. Withdrawal of the Guilty Plea

Maryland Rule 731 f. 1. states:

"When justice requires, the court may permit a defendant to withdraw a plea of guilty or nolo contendere and enter a plea of not guilty at any time before sentencing.”

On appeal, Blinken contends that the Circuit Court abused its discretion in refusing his request to withdraw his guilty plea. The appellant argues that his plea and that of his co-defendant were not "mutually dependent”, and thus the court could have accepted Miss Pfau’s plea while not necessarily accepting Blinken’s plea. The appellant further maintains that justice required the court to permit the guilty plea to be withdrawn because the State failed to show that it would be prejudiced by the plea’s withdrawal. While acknowledging that there is no well-defined standard for whether a trial judge should accept or deny a motion for withdrawal, the appellant believes that the facts of Fontana v. State, 42 Md. App. 203, 399 A.2d 950 (1979), cert. denied, 285 Md. 729 (1979), create such a standard.

We disagree with the appellant’s contentions, and with his interpretation of the Fontana decision. In Fontana we held that a trial judge had not abused his discretion in denying the withdrawal of a guilty plea. In the facts of that case we found very strong reasons for upholding the presumption that the trial judge properly exercised his discretion. We did not hold in Fontana, and we will not hold in the present case, that the presumption favoring a trial judge’s ruling will be rebutted by the absence of prejudice to the State or delays in the case. The validity of a judge’s discretionary ruling may be enhanced by evidence such as that in Fontana, but the absence of such evidence does not invalidate the ruling. Rather, such a rebuttal requires evidence on the record indicating that the State or the court acted to prejudice the appellant, or that the appellant was harmed by the failure of the court to follow guidelines of constitutional magnitude. See Kisamore v. State, 286 Md. 654, 664, 409 A.2d 719, 725 (1980), in which the Court of Appeals held that justice required that a defendant be permitted to withdraw his guilty plea after the State repudiated part of a plea agreement, and where the plea did not meet the constitutional test for voluntariness.

We hold that the granting of a motion to withdraw a guilty plea lies in the sound discretion of the trial judge, and unless there is a manifest abuse of that discretion, the denial of the motion will not be disturbed by this Court. Palacorolle v. State, 239 Md. 416, 420, 211 A.2d 828 (1965); Watson v. State, 17 Md. App. 263, 268, 301 A.2d 26 (1973).

Our examination of the record uncovers none of the egregious circumstances which have previously warranted an overturning of a judge’s discretionary ruling. Instead, we find that the trial judge carefully examined the appellant at the time that the guilty plea was entered, and at the time when its withdrawal was requested. The judge allowed the appellant to explain the request for the withdrawal. During this inquiry the appellant, responding to questions from the State’s Attorney, stated:

"A The reason I felt it was, I plead guilty or agreed to plead guilty was because, while I believe I stated there was no physical coercion involved I thought there was a great deal of mental and psychological pressure on me. I just thought that I had a very, in my mind, that I had a valid appeal position and I felt that my rights to appeal were certainly being extorted from me. I hope that’s not too strong a word, but I felt my appeal right was being denied me by using Miss Pfau as a lever against me, so to speak, or a pawn in the game as opposed to her being her ownself, her own person.
Q Well, go back to my original question, what other reasons, if any, exist for your pleading guilty in this case other than the consideration given to Miss Pfau?
A Other than the reasons I had just stated that would be it.
Q That’s the only reason you pled guilty on that day?
A Yes. ...
I know it may sound difficult for you all to believe because you’re in contact with this type of atmosphere all of the time. I mean it is your job, but my experience in this matter is very limited so, you know, maybe that’s why I was a little hesitant to realize exactly what was happening. Just in principle alone, I don’t think it is right to use another individual who has their own constitutional right and their own personality, their own life, their own being, I don’t think it is right to use that person against another person as a force to take out the State’s will on another person.
Q You knew when you were here November 1st if you proceeded to trial before that jury you would have preserved your appellate rights, didn’t you?
A I knew, yes, that I would, but at the time —
Q Why did you enter a plea of guilty in view of that right available on November 1st?
A As I just finished explaining, it was like a state, I was in like a state of shock. I mean I was just forced emotionally, intellectually and physically by the repetity of the events taking place. I really didn’t have a chance to realize the entire scope of what was happening and delve into my feelings.”

The judge himself questioned the appellant concerning the claim that Miss Pfau was "held hostage” to coerce the appellant. The appellant discussed his situation directly with the judge on the record.

Before denying the appellant’s request to withdraw the guilty plea, and finally accepting that plea, the trial judge discussed the applicable case law and determined that the appellant’s guilty plea was made knowingly, intelligently, and voluntarily.

The examination of the record indicates only sparse and vague allegations concerning the judge’s exercise of his discretionary authority. These allegations do not overcome the "presumption of verity” which the judge’s ruling possesses. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621 (1977). Therefore, we conclude that the trial judge did not abuse his discretion in denying the appellant’s motion to withdraw his guilty plea.

II. The Charges Against the Appellant

During the proceedings of November 1, 1979, the following colloquy took place between the trial judge and the two co-defendants:

"THE COURT: Now, have you been furnished with a copy of the charging document, which is an indictment; have you read the same, discussed it with your attorney, and do you fully understand every charge lodged against you?
MISS PFAU: Yes, Your Honor, I do.
MR. BLINKEN: I do also, Your Honor.
THE COURT: Sir?
MR. BLINKEN: I do also, Your Honor.
THE COURT: Miss Pfau, in this case do you understand that you are charged with having in your possession a controlled dangerous substance, to wit; marijuana, in sufficient quantity to reasonably indicate under all circumstances an intent to distribute that controlled dangerous substance, as to the first count.
The second count you are charged with possession of marijuana. These dates are April 28, 1979, in Queen Anne’s County.
In the third count that you did possess cocaine, I’m summarizing, I’m not reading it. Fourth count you did keep and maintain a common nuisance, a dwelling house and place in Kent Island which is and has been resorted to by drug abusers for purposes of illegally administering controlled dangerous substances et cetera.
You have seen a copy of it, the counts which you have entered a plea of guilty, that you did unlawfully conspire with Neal Blinken to unlawfully and feloniously distribute a certain controlled dangerous substance, to wit; marijuana, on 28th of April, 1978. The rest of the counts are all conspiracy charges to which I understand the State’s Attorney will enter a nul-pros. [sic]
Now, Mr. Blinken, do you understand that the first four counts which you have entered a plea of guilty in the indictment are the same as those indicated in the case of Miss Pfau?
MR. BLINKEN: I understand, Your Honor.
THE COURT: And that the remaining counts are conspiracy counts, which I understand if the Court accepts the plea the State’s Attorney will nul-pros. [sic]
MR. BLINKEN: I understand, Your Honor.
THE COURT: And you understand those, you say?
MR. BLINKEN: Yes, Your Honor, I do.”

On appeal, Blinken contends that he was not thoroughly advised of the nature of the charges against him pursuant to Maryland Rule 731 c., which states:

"The court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea. The court may accept the plea of guilty even though the defendant does not admit that he is in fact guilty if the court is satisfied that there is a factual basis for the plea. If the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty.”

He indicates that the charges were read to his co-defendant, and that he was not advised of the essential elements of the various offenses.

This Court has held that in order to comply with Md. Rule 731 c. a judge must inquire on the record of the defendant whether he understands the charges to which he pled guilty. Priet v. State, 45 Md. App. 1, 410 A.2d 1107 (1980), cert. granted, May 2, 1980.

The record reveals that the judge conducted the requisite inquiry of the appellant before the guilty plea was tentatively accepted. The judge did not merely ask the appellant whether he had discussed the charges with defense counsel, but the judge continued the inquiry on the record to determine that the appellant understood the indictment. Furthermore, the appellant, being sworn, signed the transcript of his answers to the court’s inquiry.

Thus our examination of the record leads us to conclude that the court complied with Md. Rule 731 c.

III. Voluntariness of Appellant’s Plea

During the November 1, 1979 proceeding the court inquired of the appellant and his co-defendant:

"THE COURT: Now, Miss Pfau, has the State’s Attorney, or your lawyer, or any law enforcement officer or anyone else threatened you or used physical force or violence on you in any way to make you feel afraid, to influence you to plead guilty in this case?
MISS PFAU: No.
THE COURT: You, sir?
MR. BLINKEN: Not physical violence, Your Honor.
THE COURT: Well, no physical violence. What about any threats upon you?
MR. BLINKEN: No, Your Honor.”

The court additionally asked the appellant if anyone had promised him anything to induce him to plead guilty or if plea negotiations had caused him to plead guilty. The appellant’s response was limited to the facts of the negotiated plea, and the record does not reveal any sign of duress on the part of the appellant. Rather, the transcript indicates that the appellant felt on November 1, 1979 that his plea was made freely, understandingly, and voluntarily, without compulsion, intimidation, duress, or promise of leniency being made to him by anyone in order to procure his pleas, other than the accommodations set forth in the transcript.

The appellant contends on appeal, however, that his right of due process was denied by the apparent dependence of Miss Pfau’s freedom upon the appellant’s guilty pleas. The appellant argues that this dependence acted to render his pleas involuntary.

We disagree with this contention and find that the appellant entered voluntary guilty pleas.

The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the options available to a defendant. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). Our Court of Appeals has developed a four-part test for determining when the standard is met. In Hudson v. State, 286 Md. 569, 409 A.2d 692 (1979), the Court stated:

"This standard is met when the plea was entered by an accused:
(1) voluntarily, that is, not through coercion, terror, inducements or threats, subtle or blatant; and
(2) with an intelligent understanding, that is, not through ignorance or incomprehension:
(a) of the nature of the offense to which he is pleading guilty; and
(b) of the possible consequences of such a plea; and
(3) unconditionally, that is, without any condition or qualification;
(4) even though the accused denies his guilt, provided the prosecution demonstrates a strong factual basis for the plea and the accused clearly expresses a desire to enter it despite his professed belief in his innocence.” Id. at 595.

Applying this test, we find that:

(1) The plea was made voluntarily because the "linkage” between the co-defendants’ plea agreements did not constitute even a subtle inducement, but rather formed the accommodation which was the end product of plea negotiations.
(2) The indications of the appellant’s intelligent understanding of the plea were elicited by the court’s scrutiny.
(3) The appellant’s signed statement which accompanied his guilty plea indicates no conditions or qualifications to the plea arrangement.
(4) Concurrent with the presentation of the factual basis of the case, the appellant indicated his desire for the entry of the guilty plea.

See Miller v. State, 32 Md. App. 482, 361 A.2d 152 (1976).

This application of the four-part test supports our holding that the appellant’s guilty plea was properly entered and accepted. We find additional support from decisional law holding that the involvement of third party beneficiaries in plea negotiations is not an intrinsic infirmity to the negotiated plea. Rather than constituting error, the use of lenient treatment for third parties as part of a negotiated plea simply requires that "special care must be taken to ascertain the voluntariness of’ guilty pleas entered in such circumstances. United States v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978).

The present case may be distinguished from circumstances in which prosecutors in plea bargaining may have used actual threats against unindicted third persons as a negotiating tactic. United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979). The appellant’s situation compares with several cases in which "Sir Galahad” pleas have been negotiated in such a fashion as to protect co-defendants, as well as being advantageous to the negotiator. See Bishop "Federal Habeas Corpus in State Guilty Pleas”, 71 F.R.D. 235, 278, for cases cited therein.

In a drug law violation case similar to the present case, Circuit Judge Feinberg rejected a relator’s argument on the claim that a guilty plea was involuntary. In United States ex rel. Cunningham v. Follette, 397 F.2d 143 (2d Cir. 1968), he stated:

"The principal bases for the assertion of involuntariness are that an assistant district attorney had said that if Cunningham wanted to take Miss Davis 'off the hook’ he would have to 'take a plea,’ and that Cunningham was under the influence of narcotics at the time of the guilty plea. We have examined the. available record of the proceedings in the state court on May 11, 1964, when Cunningham pleaded guilty, and on June 16, 1964, when he attempted to withdraw his plea. Cunningham admitted that the alleged remark of the prosecutor was not made to him; he also disclaimed any promise from the court, but pointed to the 'pressure’ of the indictment, undeniably present but hardly improper. The transcript shows that the state judge carefully questioned appellant when he took the guilty plea; it also reflects Cunningham’s apparent misapprehension, when he attempted to withdraw his plea, that just because he had handed the paper bag to Miss Davis, he did not have possession of the narcotics. It may be that Cunningham was also influenced by a desire to help Miss Davis. But that would not invalidate the plea in a case in which he was represented by competent counsel, the plea was voluntarily made with no inducement by the court or the prosecutor and the state was ready to go ahead at the time of the plea, as was the case here.” Id. at 146.

For the foregoing reasons we find that the judgments and sentences of the Circuit Court must be affirmed.

Judgments affirmed.

Costs to be paid by the appellant.

      . In the Certificate of the Presiding Judge, dated 11-1-79, the judge wrote, "(4) [T]he Defendant’s pleas of guilty are tentatively but not finally accepted by the Court provided their [sic] is a factual basis for the pleas and the representations made here today are confirmed by a P.S.I. report as to the defendant.”

      . The appellant was informed, however, that the plea agreement would not bar his being prosecuted for conspiracy by any other political subdivision of Maryland.

      . The record contains the form completed in court during Blinken’s interrogation by the judge, signed by the appellant, his counsel, and the Clerk of the Circuit Court.


author: Liss, J.,

text:
    SANDRA POLK v. KENNETH W. HARRIS
    [No. 17,
    September Term, 1980.]

      Decided October 9, 1980.

      The cause was submitted on brief to Morton, Thompson and Liss, JJ.
    Submitted by Stephen H. Sachs, Attorney General, Joseph B. Spillman, Assistant Attorney General, Joel J. Rabin, Assistant Attorney General, Starke M. Evans, State’s Attorney for Caroline County, and Jennifer Bodine, Assistant State’s Attorney for Caroline County, for appellant.
    No brief or appearance by appellee.
   Liss, J.,

delivered the opinion of the Court.

This case raises issues concerning support rights of an illegitimate child arising out of the Paternity Proceedings subtitle of Article 16, Sections 66A — 66P of the Annotated Code of Maryland (1957, 1973 Cum. Supp.).

Kalinda Polk was born to Sandra Polk, the appellant, on February 14, 1976. The father was alleged to be Kenneth Harris, the appellee. On June 6, 1979, appellant filed a bill of complaint in the Circuit Court for Caroline County instituting a civil paternity proceeding against the appellee under Art. 16, Secs. 66A et seq. The bill of complaint, which sought to require the alleged father to contribute to the support of a child, was prepared and signed by an Assistant State’s Attorney for Caroline County, as is customary when an illegitimate child is receiving public assistance for its support from the Department of Social Services. Appellant also signed the bill of complaint, and her affidavit was attached to it.

The bill alleged that the appellee had executed a voluntary support agreement on May 28, 1976, in which he admitted paternity of Kalinda and agreed to pay $5.00 per week as support. It further alleged that at the time the bill was filed appellee was in arrears on the agreed upon support payments in the amount of $361.78. The bill prayed: that appellee be declared the father of Kalinda Polk; that custody of the child be awarded to the appellant; and that the appellee be required to pay the arrearages due plus a reasonable sum for future support of the child.

Attached to the bill as an exhibit was a copy of the agreement signed by the parties, which stated that Sandra Polk was the mother of the illegitimate child, Kalinda Polk, and that Kenneth Harris was the father of the child. The agreement also provided:

1. The said Sandra Polk shall have the primary custody and control of the said Kalinda Polk subject to the right of reasonable visitation by the said Kenneth Harris.
2. The said Kenneth Harris shall pay to Caroline County Dept, of Social Services the sum of Five Dollars ($5.00) per week, commencing on the 4th day of June, 1976 for the support and maintenance of Kalinda Polk until the said child shall attain the age of eighteen years, die, marry, or become self-supporting, whichever event first occurs, and that he pay the reasonable funeral expenses for the burial of said child should she die prior to reaching majority; and also that_ shall pay the costs of any legal proceedings involved herewith.
3. That Kenneth Harris shall reimburse Sandra Polk for all medical and hospital costs incurred in connection with the birth of the said child.

In addition, the agreement included a notarized acknowledgment by the father as well as a certificate by the State’s Attorney for Caroline County, which read:

CERTIFICATE
I hereby certify that I am satisfied that the amount and terms of the above settlement are fair and reasonable, that Sandra Polk has been properly advised in the premises, and that she is competent to accept the settlement.
s/ J. Owen Wise
State’s Attorney for
Caroline County

We note that while the settlement agreement was approved by the State’s attorney, it was never submitted to the presiding judge of the Circuit Court for Caroline County for his approval.

After service of process on the appellee, he filed an answer denying paternity, admitting execution of the agreement, requesting a blood test of the appellant, the child and himself, and requesting a jury trial. The blood tests were administered, and appellee was found not to be excluded as the putative father. On August 17, 1979, the Assistant State’s Attorney, on behalf of the appellant, filed a verified motion for summary judgment submitting to the trial judge the agreement and admission of the appellee and attaching as an exhibit a "support obligation record.” The record showed the amount paid as support for the child by the Department of Social Services and the amount paid by appellee on account of the agreed support order. The appellee filed an unverified answer to the motion which included no factual basis for his answer other than the bald assertion that he was not the father of the child. A hearing was held on the motion for summary judgment; legal memoranda were submitted, but no evidence was offered. The chancellor found that there was no genuine dispute as to a material fact whether the appellee was the father of the child, and he entered an order that appellee was Kalinda’s father and was liable for her support until she reached majority, married or became self-supporting. See Wyand v. Patterson Agency, Inc., 266 Md. 456, 295 A.2d 773 (1972); Hill v. Lewis, 21 Md. App. 121, 318 A.2d 850 (1974). The chancellor reserved for a later date the question as to the amount of support required to be paid by the appellee and the disposition of the arrearages. Appellee has taken no appeal from the chancellor’s summary judgment finding him to be the father of the child, and this issue is not before us.

At a later date, the issues deferred by the chancellor came on for hearing as follows:

1. If the court finds that the respondent is in arrears in his payments under the Settlement Agreement dated the 28th day of May, 1976, how may the nonpayment be enforced; more specifically, do the enforcement provisions of Sec. 66J of Art. 16 apply?
2. Can the court require of the respondent in the future to pay any more than he covenanted to pay in said Agreement; more specifically, do the provisions of Sec. 66H of Art. 16 apply?

The chancellor, after the hearing, answered both of these questions in the negative. It is from these rulings that the instant appeal is taken. We conclude that the chancellor was correct in his ruling on the first question and incorrect in his ruling on the second.

1.

There are three sections of Article 16, Sections 66A-P which are pertinent to this dispute. Section 66J (a) (Enforcement of orders) provides:

The orders of court directing payments for the support and maintenance of the child or with respect to any other matter are enforceable in the same manner and to the same extent as other orders of the equity courts of this State, including, but not limited to, citation and imprisonment for contempt. The person failing to make support payments as ordered shall be served with an order directing him to show cause on a specified date why he should not be held in contempt. Should he fail to appear in response to a notice served upon him or prove unavailable for service, the court shall issue its warrant for the person’s apprehension and arrest in the manner provided in § 66E (c) of this subtitle. If the court shall find that the person cited has failed to comply with the support order while possessing the means to have done so, the court shall find the person guilty of civil contempt and may commit him to jail or any other institution of penal confinement in this State until he shall comply with the support order or otherwise purge himself of his contempt.

Section 66L provides for a voluntary agreement for support and maintenance as follows:

Either before or after the filing of a bill or petition to establish paternity and to charge the putative father of an illegitimate child or children with his or their support and maintenance, the person alleged to be the father of the child or children, whether he admits or denies paternity, may propose to make a settlement with respect to his or their support and maintenance, either in a lump sum, installments, or otherwise. If the complainant or petitioner agrees to accept the settlement and the State’s attorney is satisfied that the amount and terms of the settlement are fair and reasonable and that the complainant or petitioner has been properly advised in the premises and is competent to accept the settlement, an agreement shall be prepared and duly executed and submitted to the court for approval. In the event the court approves the agreement, the terms thereof shall be incorporated in an order to be passed by the court, which order shall be enforceable in all respects and to the same extent as any other order passed after a hearing.

Section 66H (a) (1) provides for the entry of a court order for support under the following circumstances:

If the court or jury, as the case may be, finds against the defendant alleged to be the putative father, the court shall pass an order declaring the defendant to be the father of the child and providing for the support and maintenance of the child. The order shall specify the sum to be paid by the defendant weekly or otherwise until the child reaches the age of 18 years, dies, marries or becomes self-supporting, whichever event first occurs. However, if the child, having reached 18 years of age, is destitute of means and unable to support himself by reason of mental or physicial infirmity, the court may require payments to be made or continued during the continuance of the mental or physical infirmity.

In the memorandum opinion filed by the chancellor in this case, he noted that the settlement agreement entered into by the parties and approved by the State’s attorney was never submitted to the trial court for its approval. As the broad right to enforce the settlement agreement under Section 66L is predicated upon a submission of the agreement to the court, the court’s approval of the agreement, and the incorporation of the terms of the agreement in an order to be signed by the court, then a failure to comply with these requirements would make the agreement not "enforceable in all respects and to the same extent as any other order passed after a hearing.” Further, the appellant is not entitled to enforce the payment of these arrearages in an equity proceeding, as they arise out of an express contract enforceable, if at all, only at law. See Groner v. Davis, 260 Md. 471, 272 A.2d 621 (1971); Kriedo v. Kriedo, 159 Md. 229, 150 A.2d 720 (1930). We conclude that the chancellor was correct in his finding that the collection of the arrearages in this case could not be enforced under the provisions of Section 66L of Article 16.

2.

We do not agree, however, with the chancellor’s conclusion as to the second issue in this case. The chancellor treated the proceedings as if they were a submission of the settlement agreement to him for his approval under Section 66L. A reading of the bill of complaint, the answer, and a consideration of the positions of the parties convinces us that the agreement was before the court only for the purpose of establishing paternity. Once it was established that the parties had failed to comply with an essential element of Section 66L, that section was irrelevant to the disposition of the case. Even if the settlement agreement had been approved by the court and incorporated into an order, we do not consider whether the court would have been precluded from increasing or decreasing the amount to be paid for maintenance and support of the illegitimate child. That issue is not before us. In this case, the agreement was submitted to the court in order to show appellee’s written acknowledgment of paternity — and not as an attempt to adhere to the requirements of Section 66L of Article 16. Appellee, at the time of the institution of the paternity bill, had repudiated the terms of the agreement by terminating the support payments. He denied his paternity, insisted on blood tests, and resisted the court’s determination of his being the father of the child. Because the appellee has filed no appeal, we find no significance in the fact that appellee’s paternity was determined by summary judgment.

Equity courts in this State have plenary authority to determine questions concerning the welfare of children within their jurisdiction. Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977); Price v. Price, 232 Md. 379, 194 A.2d 99 (1963). The paramount concern of the court must be to secure the child’s best interest. See Stancil v. Stancil, 280 Md. 530, 408 A.2d 1030 (1979); Hill v. Hill, 49 Md. 450, 33 Am. Rep. 271 (1878). Equity must exercise its authority to protect the best interest of the child even if there is an agreement between the parties. In Stancil, supra, the Court of Appeals said:

Section 28 [of Article 16], and the decisions of this Court, make it quite clear that the chancellor cannot be handcuffed in the exercise of his duty to act in the best interest of a child by any understanding between the parties. [286 Md. at 535.]

See also Glading v. Furman, 282 Md. 200, 383 A.2d 398 (1978); Tvardek v. Tvardek, 257 Md. 88, 261 A.2d 762 (1970). While none of these cases involve illegitimate children, we see no basis for making any differentiation between the rights of legitimate and illegitimate children as to payments for maintenance and support. As the Court of Appeals said in Dorsey v. English, 283 Md. 522, 529, 390 A.2d 1133 (1978), the Paternity Proceedings statute "seeks to place the burden of support of an illegitimate child on those responsible for its birth.” One of the reasons for the enactment of the statute is "the promotion of the general welfare and best interests of such children by securing to them, as near as practical, the same right of support, care, and education as legitimate children.” Article 16, § 66A; Dorsey v. English, supra.

We conclude that Section 66L of Article 16 is inapplicable here and that this case should have been treated as a civil paternity proceeding. Under these circumstances, the chancellor should have held a hearing to determine the needs of the child for maintenance and support and the ability of the parents to meet these needs, and he should have entered an appropriate order as to the support obligation of the parties pursuant to Section 66H (a) (1). We, therefore, shall remand for further proceedings.

Case remanded for further proceedings and entry of appropriate decree not inconsistent with this opinion.

Costs to be divided.


author:
Lowe, J.,

      Moore, J.,

text:
    HOWARD W. POFFENBERGER, JR. v. DONALD E. RISSER et al.
    [No. 20,
    September Term, 1980.]

      Decided October 10, 1980.

    The cause was argued before Moore, Lowe and Wilner, JJ.

      K. S. Mackley and Russell Macks, with whom was Darrow Glaser on the brief, for appellant.

      Conrad W. Varner for appellees.
   Lowe, J.,

delivered the opinion of the Court. Moore, J., filed a dissenting opinion at page 607 infra.

Whenever a limitations statute is invoked successfully a wrong is likely to survive without remedy for he who has been harmed. It is generally known in Maryland that for the most part a statutory bar will fall after three years. The real problem is three years from when.

Md. Code, Cts. & Jud. Art., § 5-101 tells us that:

"A civil action at law shall be filed within three years from the date it accrues ....” (Emphasis added).

Obviously then, the date of the action’s accrual is the crucial determination in applying limitations. See Young v. Mackell, 3 Md. Ch. 398, 408 (1850). The accrual of a cause of action means a right to institute and maintain a suit; i.e., whenever one person may sue another a cause of action has accrued and the statute begins to run, W., B. & A. Elec. R. R. Co. v. Moss, 130 Md. 198, 205 (1917). Unfortunately, the Legislature has not provided us with much guidance as to when an action accrues. The Court of Appeals, however, is not subject to that complaint.

Although various jurisdictions have differing rules on when a cause of action accrues — e.g., when the wrong is committed, when it is discovered or when it matures into a harm — Maryland professes to adhere to a general rule that limitations begin to run from the time of the wrong rather than when the wrong is discovered or harm therefrom matured. Advising the United States District Court for the District of Maryland of the accrual date of a cause of action for negligence and strict liability, the Court of Appeals stated that:

"In Maryland, the general rule is that limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time the wrong is discovered.” Harig v. Johns-Manville Products, 284 Md. 70, 76 (1978), citing Killen v. Geo. Wash. Cemetery, 231 Md. 337 (1963).

This rule, however, seems to have been honored more in its breach than by its observance. Not only has the Legislature provided exceptions to this rule, see, e.g., Cts. & Jud. Art., §§ 5-201, 5-203, but, as pointed out in 28 Md. L. Rev. 47, 60 n. 100 (1968), at least one writer has maintained that Maryland was the first state to adopt the discovery test, see 12 Wyo. L.J. 30, 34 (1957), enunciating it initially in the medical malpractice case of Hahn v. Claybrook, 130 Md. 179 (1917), on January 31,1917. Only three days later the Court of Appeals applied another exception in the W., B. & A. Elec. R. R. Co. case, supra, which we refer to as "the continuation of events” theory. Harig, supra at 76.

Although those exceptions have been repeatedly applied with varying degrees of frequency — the latter sparingly, the former profusely — it wasn’t until 1978 that the Court of Appeals came up with what we now clepe the "inherently unknowable” refinement of the discovery exception to the general rule. See Harig, supra at 80. This was seemingly reasoned to break the confines of the discovery rule from its professional malpractice bonds, cf. Mattingly v. Hopkins, 254 Md. 88, 94-95 (1969) (case involving negligent land survey construed as one of professional malpractice so as to apply discovery rule), extending it to a cause of action for a latent disease based upon negligence or strict liability.

While the Court of Appeals in Harig espoused as the general rule that the limitations statute runs from the date of the wrong, it was moving even then more toward the discovery rule, although with seeming hesitancy. The plumb line drawn by the Court seems to extend beyond that established by the Legislature. The latter applies the discovery rule if a party is kept in ignorance of a cause of action by fraud.

"If a party is kept in ignorance of a cause of action by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.” Md. Code, Cts. & Jud. Art., § 5-203.

The Court of Appeals in Harig set forth another context for application of the discovery rule:

"In cases where the initial injury is inherently unknowable, however, the statute of limitations should not begin to run until the plaintiff should reasonably learn of the cause of action. .. . Avoiding possible injustice in such cases outweighs the desire for repose and administrative expediency, which are the primary underpinnings of the limitations statute.” Harig, supra at 80 (emphasis added).

The distinguishing factor which now invokes the discovery rule exception, rather than the general rule in the ordinary tort case (where lack of knowledge of the wrong is immaterial), seems to be whether the plaintiff could have known of the tort even before damage is manifest. Usually some harm or potential harm will be apparent to a reasonably diligent plaintiff and, if such is the case, the general rule will apply. Id.

In the case at bar the following undisputed facts are significant:

1. Appellant and his then wife, after viewing the premises, purchased a lot in an undeveloped subdivision from a developer in August of 1972 subject to a residential setback restriction of 15 feet from side lot lines.
2. Within a month appellee Risser contracted to build a house for appellant on the lot, undertaking to "center” the house thereon.
3. The Poffenbergers occupied the house beginning January 1973.
4. The Poffenbergers divorced and appellant’s wife conveyed her interest to him on August 24,1974.
5. In March of 1976, the neighboring lot was surveyed prior to improvement and appellant discovered therefrom that his house was between 7.84 and 13 feet from the neighbor’s side lot line thereby violating the 15 foot setback, making it some 40 feet from the opposite side line.
6. Suit was filed May 17, 1977 in the Circuit Court for Washington County.
7. Summary judgment was granted appellees on December 5, 1979 holding that the suit was barred by limitations.

Leaning toward error, if at all, on the side of prudence, the trial judge held that the statute began to run when appellant occupied the dwelling in January 1973. Erroneously assuming that the adoption of the discovery rule in Maryland malpractice cases constituted its adoption for all purposes (citing Leonhart v. Atkinson, 265 Md. 219 (1972)), the trial judge proceeded to hold that had the appellant used due diligence, the wrong should have been discovered. In short he applied the "prudent plaintiff’ or "due diligence” test. In so doing, however, he overlooked the fact that plaintiff had alleged factual circumstances which, if proved and believed, may have made the applicability of those tests susceptible to different factual interpretations. The standard to be applied for when a cause of action accrues is properly a judicial determination, Harig, supra at 75. But the factual nuances of the case, susceptible to varying interpretations to which that standard must be applied, are questions for a jury, subject to instructions of the court as to what in law is sufficient to constitute a bar or to take the case ouf of the statute. W., B. & A. Elec. R. R. Co., supra at 207. That which constitutes diligence and prudence is, like beauty, a judgment made through the eyes of the beholder, not to be summarily determined by judges as a matter of law.

In the context of this case, however, appellant had the burden of constructive notice with which a property owner is charged relating to restrictions in his deed, Levy v. Dundalk Co., 177 Md. 636, 644 (1940), and presumably regarding the location of his property lines as well, Heckrotte v. Riddle, 224 Md. 591, 594 (1961); Piper v. Jenkins, 207 Md. 308, 313-314 (1955) — especially where there was so obvious a violation of the setback restrictions due to the appellee’s gross failure to "center” the structure. Certainly the existence of constructive notice provided the judge strong reason to believe that appellant had sustained legal harm, but with the exercise of due diligence should have discovered the wrong. See, e.g., Mattingly v. Hopkins, 254 Md. at 95. In light of the Harig extension, it may be that the Court of Appeals would extend the application of the discovery exception in a property line case where a wrong related thereto is "inherently unknowable” because of a minimal intrusion, but as yet they have not gone that far.

Prior to Harig the only application of the discovery exception in Maryland in a case not dealing with professional malpractice was by dicta in Callahan v. Clemens, 184 Md. 520, 527 (1945), which dealt with the faulty construction of a wall encroaching by .02 of a foot to .6 of a foot on a neighboring property. Limitations was only an alternative reason given by the Court of Appeals for affirming dismissal by the trial court, and it does not appear from the single sentence:

"Moreover, the allegedly tortious act of negligently erecting the wall occurred in 1929, and its alleged defects[] became known to the complainant in 1939. A cause of action accrued at that time.” Id. at 527.

that the Court of Appeals at that juncture had any intention of extending the discovery exception beyond professional malpractice or fraud.

The case before us involved no professional malpractice and the facts as alleged or agreed indicate no fraud pursuant to Cts. & Jud. Art., § 5-203. Even under the Harig extension the facts here do not approach a showing that the wrong was "inherently unknowable”, especially in light of the constructive knowledge imputed to them.

Although the trial court should have applied the general rule rather than the discovery exception, its visceral instincts were correct. It matters not what reasons are given in a court’s opinion so long as its judgment is correct. Cf. Hudson Bldg. Supply Co. v. Stulman, 258 Md. 304 (1970). Applying the general rule that the statute begins to run from the date of the wrong, summary judgment was properly entered. But because of the circumstantially equivocal nature of the terms "due diligence” and "prudent persons”, summary judgment based on the trial court’s rationale would have been questionable at best.

Judgment affirmed.

Costs to be paid by appellant.

Moore, J.,

dissenting:

This case was decided on appellee’s motion for summary judgment, without supporting or opposing affidavits. The relevant facts as gleaned from the declaration and exhibits are significant and may be summarized as follows: Appellant, Howard W. Poffenberger, Jr., purchased an unimproved lot in the planned development of Brightwood Acres in Washington County. The deed to appellant, dated August 22, 1972, was recorded on September 18, 1972. The lot was subject to the conditions and restrictions in the deed and recorded plat. Paragraph 6 of Section "B” of the plat provided:

"No portion of any building except open porches and steps shall be located on any lot nearer to the front lot line or nearer to the side street line than the minimum building set-back line shown on this plat. No portion of any building except open porches and steps shall be located within 15 feet of any other side lot lines.” (Emphasis added.)

On August 23, 1972, appellant entered into a contract with the appellee, Donald E. Risser, a builder and developer operating under the name of "Quality Homes” in Hagerstown, Maryland, for the construction of a house on the lot. It was understood and agreed that appellant’s residence would be constructed in the center of the lot and that the construction would comply with all restrictions, including set back lines. The house was completed in December 1972; occupancy by the appellant took place in January 1973.

This was a new subdivision. There was no dwelling on either side of the appellant at the time of his purchase of the lot nor during the construction of his home. Some three years later, in March 1976, an adjacent lot was surveyed, and at that time appellant first discovered that his residence was built in violation of the above quoted set back restriction. It was some 41 feet from one side lot line but only 8 feet from the opposite side lot line.

On May 17,1977, appellant filed suit in the Circuit Court for Washington County against the builder for breach of contract and negligence. The declaration alleged, inter alia, that at the time of the purchase of the lot, it was overgrown with weeds and there was no visible definition of the boundary lines; that the appellant at no time located the place where his residence was to be constructed nor, indeed, had any knowledge before construction as to the location of the house but "relied completely upon the expertise and skill” of the builder.

Summary judgment was granted for the appellee on the ground that he had not commenced his action within three years from the date his cause of action accrued. In reaching its decision, the trial court applied the "discovery” rule but found that although the plaintiff had no actual knowledge of the error prior to March 1976, he did have constructive knowledge. The court then arbitrarily held that the period of limitations began to run in January 1973 — the date appellant first occupied his home. To quote the court’s "Memorandum Opinion,”

"[T]here is no evidence before the Court, from which it could be found that the Plaintiff actually discovered the defect in question prior to March, 1976.
"However, there is a question as to whether or not the Plaintiff should have discovered the defect prior to 1976. It is clear that the Plaintiff is charged with the knowledge of the applicable restrictive covenants establishing the side lot set back lines, such covenants having been recorded among the Land Records of this County and being covenants running with the land. Levy v. Dundalk, 177 Md. 636 (1940).
"This Court believes that the Plaintiff is similarly charged with the specific knowledge of his property boundaries so as to give rise to the inference that the Plaintiff should have had or should have known of the defect in question at the time he occupied the dwelling in January, 1973. The Court concludes that January, 1973, is the date the statute of limitations began to run and the Court finds that it expired in January, 1976. The Court must, therefore, conclude that the Defendants are entitled, as a matter of law, to summary judgment as a result of this action having been barred by the Statute of Limitations.”

I

In affirming the trial court, the majority concludes that "its visceral instincts were correct,” i.e., the result was proper although the court’s reasoning was wrong. The majority holds that there was no professional malpractice to justify the application of the discovery rule and that the "general rule” should have been applied. Earlier in the opinion, the majority also made it plain that, in its view, the doctrine of constructive notice of property restrictions was controlling. The opinion states:

"In the context of this case, however, appellant had the burden of constructive notice with which a property owner is charged relating to restrictions in his deed, Levy v. Dundalk Co., 177 Md. 636, 644 (1940), and presumably regarding the location of his property lines as well, Heckrotte v. Riddle, 224 Md. 591, 594 (1961); Piper v. Jenkins, 207 Md. 308, 313-314 (1955) — especially where there was so obvious a violation of the setback restrictions due to the appellee’s gross failure to 'center’ the structure.”

I respectfully differ. In my view, the discovery rule is applicable here but the ancient principle of constructive notice is not.

The pivotal question is whether the appellant exercised due diligence to discover the wrong inflicted upon him by the builder, an issue which, as the majority appears to agree, was not properly susceptible of determination on the appellee’s motion for summary judgment in this case. Since 1917 when the discovery rule was first applied in Maryland in a medical malpractice case, Hahn v. Claybrook, 130 Md. 179, 100 A. 83, it has been applied in diverse "professional” settings: Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972) and Mumford v. Staton, Whaley & Price, 254 Md. 697, 255 A.2d 359 (1969) (attorney malpractice); Leonhart v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972) and Feldman v. Granger, 255 Md. 288, 257 A.2d 421 (1969) (accountingmalpractice); Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969) (negligence of civil engineering firm); Steelworkers Holding Co. v. Menefee, 255 Md. 440, 258 A.2d 177 (1969) (architectural and contractor malpractice).

In a case factually similar to the instant appeal, Callahan v. Clemens, 184 Md. 520, 41 A.2d 473 (1945), the Court of Appeals was confronted with a claim involving the negligent construction of a wall which encroached, although slightly, on a neighboring property. Judge Henderson, writing for the Court, observed that the negligent construction occurred in 1929, its alleged defects became known to the complainant 10 years later and that "[a] cause of action accrued at that time,” i.e., in 1939. Id. at 527, 41 A.2d at 476. The majority suggests that the Court of Appeals did not in Callahan have "any intention of extending the discovery exception beyond professional malpractice or fraud.” What the Court may have intended is not the point. The significance of Callahan is that the discovery rule (applicable to professionals) was there applied in a construction case; and the Court did so on the authority of the 1917 decision in Hahn v. Claybrook, supra. Furthermore, the viability of Callahan was recognized some 25 years later in Steelworkers Holding Co. v. Menefee, 255 Md. 440, 258 A.2d 177 (1969), wherein the Court in another construction case applied the discovery rule to two defendants, one a building contractor and the other an architect. Writing for the Court, Judge Singley stated, "we have previously indicated [citing Callahan v. Clemens] that the discovery rule may be applied to a case involving faulty construction.” Id. at 444, 258 A.2d at 179. See Mattingly v. Hopkins, 254 Md. 88, 94, 253 A.2d 904, 907 (1969).

The majority concludes that in this case there was no "professional” malpractice, apparently without fully considering the import of these prior construction cases nor contemporary interpretations of the word, "professional.” The term "profession” is not, as of old, limited to a few selected endeavors. Black’s Law Dictionary at 1375 (4th ed.) defines "profession” as:

"A vocation, calling, occupation or employment involving labor, skill, education, special knowledge and compensation or profit, but the labor and skill involved is predominantly mental or intellectual, rather than physical or manual.”

In Aulen v. Triumph Explosive, Inc., 58 F. Supp. 4 (D. Md. 1944), the status as professionals of machine designers employed in a munitions factory was at issue. There, the Court noted:

"Fifty years ago it is probable that the plaintiffs’ occupation as machine designer would not have been classed as a profession; but it is evident from the Administrator’s definition that the scope of the term 'professional’ has been much broadened for administration of the [Fair Labor Standards] Act. In recent years many new professions have become recognized. It was said in United States v. Laws, 1895, 163 U.S. 258, 266, 16 S. Ct. 998, 1001, 41 L. Ed. 151, 'Formerly, theology, law, and medicine were specifically known as 'the professions'; but as the applications of science and learning are extended to other departments of affairs, other vocations also receive the name. The word implies professed attainments in special knowledge, as distinguished from mere skill.” (Emphasis in original.) Id. at 8.

The Court concluded, inter alia, that the designers, whose work was predominately intellectual and varied in character and required the exercise of discretion, were engaged in a "professional” capacity. Accord, Mayor and City Council of Baltimore v. Smith, 168 Md. 458, 177 A. 903 (1935) (municipal hospital nurse a professional). See, e.g., Mauzy v. Hornbeck, 285 Md. 84, 400 A.2d 1091 (1979), wherein the Court found that a number of employees of a community college were "professional employees.” The Court referred to language in a prior case, Dvorine v. Castelberg Jewelry Corp., 170 Md. 661, 185 A. 562 (1936) which dealt with whether optometry was a "learned profession,” and pointed out at 285 Md. 95, 400 A.2d 1097:

"[T]he concept of learned profession was historically more limited than the literal meaning of the word 'profession’ which 'may be applied to any calling requiring special knowledge of some branch of science or learning .. . .” Certainly the plaintiffs fall within this meaning. Their positions involve special skill, education and knowledge, and the labor and skill is predominantly intellectual rather than physical or manual. Obviously the normal meaning of 'professional employee’ is not limited, as the Board’s rule states, to employees 'in the teaching field (courses offered for college credit).’ ”

In my view, a modern builder and developer, as distinguished from a foreman or carpenter, plumber or electrician on a construction site, is engaged in professional work. The gross failure of the "Quality Homes” builder in this case to locate the house properly on the lot constituted negligence or professional malpractice.

The critical inquiry, then, is whether the appellant knew or should have known that the construction of his home by the appellee was in violation of the set back restrictions. The making of that determination necessitates a more complete factual record than is present in this case. The deficiency may not, in my judgment, be cured by application of the doctrine that the appellant was on constructive notice of his property lines. To apply such a theory in the context of a professional malpractice case, where actual notice is lacking, is a logical fallacy. It would render meaningless the reliance which lay persons customarily place upon architects, engineers, surveyors and builders. The doctrine is perfectly applicable to grantors and grantees and their successors in interest. It has no relevance in a malpractice action by the hapless homeowner against a careless builder and developer upon whose special knowledge he placed full reliance.

Finally, it is subversive of the rationale of the discovery rule as explained in Harig, supra, at 76-77, 394 A.2d at 303:

"Ordinarily, a potential tort plaintiff is immediately aware that he has been wronged. He therefore is put on notice that the statute of limitations begins to run from the date of the alleged wrong. R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776, 781-782 (5th Cir. 1963). Our predecessors recognized, however, that in professional malpractice cases, the fact that a tort has been committed may go unnoticed for years, because the plaintiff is unqualified to ascertain the initial wrong and could not reasonably be expected to know of the tort until actual injury is experienced. Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). The inherently unknowable character of this type of cause of action, coupled with the peculiarly harsh consequences of adherence to the general rule of accrual from the date of the 'wrong,’ prompted our predecessors to recognize the discovery principle in determining when a cause of action accrues for latent injury resulting from professional malpractice.”

Furthermore, the majority’s opinion is at odds with the application of the statute of limitations in another property line case, Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969). In Mattingly, the plaintiff-appellant sustained legal harm by the negligent placement of stakes by Hopkins, a civil engineer, when a resubdivision of Mattingly’s land was prepared at the request of Mattingly. Although he purchased the lots in 1951 and subsequently subdivided them in 1952 to sell to third parties, the Court held that the statute of limitations did not begin to run until 1959, the year appellant first perceived what appeared to be a discrepancy between the plats and the physical markers. The Court applied the discovery rule. Judge Finan stated that "assuming that engineering is a profession, [this] is in essence a professional malpractice situation.” Id. at 94-95, 253 A.2d at 908. More importantly, perhaps, there was no holding that Mattingly, an attorney, was on constructive notice of the property lines of the subdivided lots from the plat or deeds to his grantees, or at the time he purchased his lot or subdivided it. The Court stated:

"In the case at bar, Mr. Mattingly, who is a practicing member of the Maryland Bar, certainly had strong reason to believe that he had sustained legal harm when he noted the discrepancy between the placement of the iron pipes on the ground and their location on the plats in the summer of 1959 and this was unquestionably confirmed when the appellees correctly replaced the iron pipes in May or June of 1960. We think the mistake caused by appellees’negligence was discovered at that time or with the exercise of reasonable diligence should have been discovered. He knew that he had made conveyances of property based on the location of the iron pipes on the ground to several individuals during the years 1953 to 1959 and that the error on the ground thus compounded, by the adverse conveyance he had made, not only cast a cloud on the title to his own land but those of his grantees, if not in law, then certainly in equity.” (Emphasis added.) Id. at 95, 253 A.2d at 908.

As the trial court found, absent constructive notice, the appellant in the instant case had no knowledge of the builder's placement of the house in violation of the set back restriction and would not have known of the violation at the time the footings were poured, the foundation was laid, the joists erected, the bricks and mortar applied, the house completed nor, of course, when he and his family moved in. The record fails to sustain a finding that he did not exercise reasonable diligence. I would reverse and remand.

      . Briefly stated the discovery test is that the statute begins to run from the time of the discovery of the alleged injury, or when it should have been discovered by the exercise of due diligence. Ironically then, the more obvious the wrong done, the less chance of avoiding the statutory bar to recovery.

      . "The general rule seems also settled that in the computation of the statutory period, in cases where there is an undertaking which requires a continuation of services, or the party’s right depends upon the happening of an event in the future, the statute begins to run only from the time the services can be completed or from the time the event happens.” W., B. & A. Elec. R. R. Co. v. Moss, 130 Md. 198, 204-205 (1917).

      . Harig acknowledged the generally accepted view that but for statutory applications of the discovery exception (see, e.g., Cts. & Jud. Art., § 5-203 where a party is kept in ignorance by fraud), the discovery rule was applied almost exclusively to professional malpractice cases.

      . Appellant contends that the overgrown nature of the undeveloped property obscured his ability to determine valid property lines. There was also some question in deposed testimony as to where wooden aboveground markers were located, if at all, at the time of purchase.

      . Judge Finan, writing for the Court in Mattingly v. Hopkins, 254 Md. 88 (1969), strained to bring the case within the professional malpractice exception despite its having been a survey error involved:
      "We see no basic distinction between the application of the 'discovery rule’ in a medical malpractice case and in the instant case, which assuming that engineering is a profession, is in essence a professional malpractice situation.” Id. at 94-95.

        Harig made no attempt to restrict the exception to professional malpractice.

      . There is no way of determining whether the inherently unknowable "alleged defects” alluded to were based upon the faulty structure of the now crumbling wall, its diversion of surface water, or its perceptively insignificant encroachment.

      . Whether the remedial legislation found in § 5-203 singularly establishing fraud as the sole discovery rule exception to the "general rule”, was intended by the Legislature to restrict the application of discovery exceptions to that which it established in that 1868 statute, is a question apparently never addressed by the Courts. It is not an unreasonable hypothesis, however, despite the subsequent judicial expansions of the application of the discovery rule.

      . We are told that appellant’s profession is that of schoolteacher.

      . In Harig v. Johns-Manville Products Corp., 284 Md. 70, 76, 394 A.2d 299 (1978), Chief Judge Murphy stated that "the general rule” is that limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time the wrong was discovered.
      The majority opinion in this case does not state when the statute under the general rule would have begun to run. Presumably it would have been at a point in time reasonably soon after the commencement of construction of appellant’s residence in 1972.

      . As the majority points out (n. 1), under the discovery rule, the statute of limitations begins to run from the time of the discovery of the alleged injury, or when it should have been discovered by the exercise of due diligence.

      . No denigration of the constructive notice doctrine is intended. It is fundamental law, susceptible of innumerable proper and sound applications.

      . Appellant’s declaration alleged that not only had he placed shrubbery at great expense and created a lawn on what he believed to be his lot, but that also his septic system and drainfield was installed on the adjoining property.

      . Indeed, if the "general rule” is applicable here, rather than the "discovery rule,” as the majority holds, there appears to be no reason why the majority had to concern itself with constructive notice at all. Where the general rule is invoked, "lack of knowledge of the wrong is immaterial.” Id. at 603.


author: Wiener, J.,

text:
    WILBERT BARTON, the younger v. STATE OF MARYLAND
    [No. 33,
    September Term, 1980.]

      Decided October 10, 1980.

    The cause was argued before Gilbert, C. J., and Wilner and Weant, JJ.

      Gerald A. Kroop, with whom was Paul Michael Polansky on the brief, for appellant.

      Bonnie Travieso, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Richard B. Rosenblatt, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and William Monfried, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Wiener, J.,

delivered the opinion of the Court.

In the early morning hours of June 9,1979, appellant shot and killed George Glen Hargrave. He claimed that he acted in self-defense — that Hargrave was advancing on him with a knife following an argument that the two of them had had a few minutes earlier; but a jury in the Criminal Court of Baltimore rejected that defense and convicted appellant of second degree murder and use of a handgun in the commission of a crime of violence.

Because the court gave an erroneous instruction to the jury that was critical to the issue of self-defense, and declined to give a proper instruction that was requested, however, it becomes necessary for us to reverse the convictions.

The evidence showed that, on the evening of the shooting, appellant, his girlfriend Wanda, and possibly another couple went out to do some partying. They met Hargrave, whom they knew, at one of the bars they patronized, and ultimately he accompanied them back to 113 South Ann Street, where appellant and Wanda were then living. The drinking and partying continued until about 4:30 a.m., when most of the people either left or went to bed. Appellant and Hargrave, not being ready to retire, began arm wrestling, spicing the contest with wagers on which of them was the stronger. This, unfortunately, led to an argument, which led to a shouting match, which led to some pushing.

At this point, Marvin Woods, one of the owners (or lessees) of the house, intervened. He told appellant to go upstairs and cool off, and he told Hargrave, who had been a mere guest, to leave. After a few minutes, appellant came back down; and, as he reached the bottom of the steps, he noticed that Hargrave was still there. Appellant claims that Hargrave then charged at him with a knife, which prompted him to shoot the assailant in self-defense. The State contends that the shooting was deliberate and unprovoked — that appellant had gone upstairs, loaded his gun, and returned in order to kill Hargrave. There were no witnesses to the shooting, and, when the police arrived, there was no knife in sight.

This evidence clearly generated a genuine issue of self-defense to be resolved by the jury; the State makes no contrary contention. The law, in Maryland, pertaining to self-defense was set out by the Court of Appeals in Bruce v. State, 218 Md. 87 (1958), and again in DeVaughn v. State, 232 Md. 447 (1963). One aspect of that law is the duty that one has "to retreat or avoid danger if such means [are] within his power and consistent with his safety” (Bruce, 218 Md. at 97); and, ordinarily, to invoke the defense successfully, the defendant must show that it was not possible to retreat safely, either at all or any farther than he had.

But there is an exception to the requirement that a person retreat. If the peril — the attack — occurs in his home, his dwelling place, he need not retreat from it, but may stand his ground and use whatever force is reasonable (including, if necessary, fatal force) in order to repel the attack and defend himself. He is not bound to flee and become a fugitive from his own home, for, if that were required, there would, theoretically, be no refuge for him anywhere in the world. See Jackson v. State, 31 Md. App. 518 (1976). This exception to the "retreat” rule is commonly known as the "castle” doctrine, the name being derived from the bedrock (but, unfortunately, somewhat hackneyed) principle that "a man’s home is his castle” and his ultimate retreat. Gainer v. State, 40 Md. App. 382, 388, cert. den. 284 Md. 743 (1978).

The court below concluded that the "castle” doctrine was not applicable in this case. It thus instructed the jury that a person — to wit, the appellant — was required to retreat if the means to do so were within his power, and that, if "he fail[ed] to retreat or withdraw when he [could] safely do so, then the homicide is not justifiable.” Consistent with its belief, the court refused to give a contrary instruction based upon the "castle” exception.

Appellant, 20 years of age, was originally from North Carolina. About three or four weeks before this tragic episode, he and his girlfriend Wanda (a/k/a Carol) had a "misunderstanding,” and Wanda moved to Baltimore, taking up residence with her two brothers, Meareno and Marvin Woods, at 113 South Ann Street. A few days later, appellant followed her up here, joining her in residence at her brothers’ home. At the time, he had no definite plans — to stay or to return to North Carolina — but "was wanting to see what Wanda had in her mind.” The "misunderstanding” was apparently resolved; appellant said, without contradiction, that "me and her got things straightened out and we decided to stay together in Baltimore,” and that they planned to continue living at 113 South Ann Street "[u]ntil I got enough money for us to move out on our own.” This arrangement was apparently agreeable with Marvin and Meareno who not only let him stay there with Wanda but also found a temporary job for him (unfortunately, the job was working for the victim, George Glen Hargrave, for whom Marvin also worked).

The evidence adduced in this regard fairly permits the inference that 113 South Ann Street was appellant’s only place of shelter in Baltimore; it is where he slept, ate, parked his car, and stored such of his belongings as he brought with him from North Carolina.

Notwithstanding this evidence, and the inferences that might properly be drawn from it, the court, in denying appellant’s request for an instruction on the "castle” doctrine, stated, "I don’t think this was his home. I think this was just a temporary abode that he had.. . [H]e was up here temporarily for a limited purpose and was going to go right back to North Carolina.” When contradicted by defense counsel, the court replied, "All right, that they had planned to move out. But this was only a temporary abode. He was a guest there and there was no testimony that he paid any rent or had any proprietary or leasehold interest in the property whatsoever.”

In taking this approach, the court misunderstood the law. We said in Gainer, supra, 40 Md. App. at 388, that one need not be the head of the household to avail himself of the "castle” exception. Rather, we concluded that any member of the household, whether or not he or she has a proprietary or leasehold interest in the property, is within its ambit; and, to determine who is included within the household, we looked to the analogous doctrine as it applies in the civil law. In particular, we quoted, with obvious approval, from Restatement of Torts Second (1965), § 65, comment h, defining the term "dwelling place” in the context of the "castle” doctrine:

"The phrase 'dwelling place’ is used in this Section to denote any building or habitation, or part of it, in which the actor is at the time temporarily or permanently residing and which is in the exclusive possession of the actor, or of a household of which he is a member. Only that part of the building or other habitation which is actually used for residential purposes is a dwelling place. Thus, a man’s house is the dwelling place of himself, his family, his servants, and for the time being, the dwelling place of one who is residing, however temporarily, in the house as a guest. It is not the dwelling place of a visitor, social or business, who comes to the house for a particular purpose and not to reside therein.” (Emphasis supplied.)

The Court of Appeals implied essentially the same rule in Crawford v. State, 231 Md. 354 (1963). Noting that the rules regarding the defense of one’s dwelling "are generally similar” to those governing the defense of one’s person, the Court, in enunciating the "castle” doctrine in regard to the defense of dwelling, quoted with approval this passage from Clark and Marshall, Law of Crimes, § 7.03 (6th Ed., Wingersky Rev.), pp. 436-37:

"* * * A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of committing a felony, or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable.” 231 Md. at 361 (Emphasis supplied.)

Cf. Law v. State, 21 Md. App. 13 (1974).

Upon these principles, it is apparent that the court took too restrictive a view of the "castle” doctrine. The evidence sufficed to establish that appellant was indeed a member of the household at the time of the affray; and that, for purposes of the law of self-defense, he was then in his dwelling and had no duty to retreat. This was especially true with respect to Hargrave who was a mere guest and not himself a member of the household.

Appellant has raised a number of other issues, primarily of an evidentiary nature. None involve the legal sufficiency of the evidence, however; and, in light of our determination of the first issue, we shall decline to consider them.

Judgments reversed; case remanded for new trial; Mayor and City Council of Baltimore to pay the costs.

      . Wanda confirmed that she and appellant "were living together” and "were close.” They occupied the middle bedroom on the first floor of the house.

      . Sections 63-65 set forth the law of self-defense in the civil context, § 65 dealing, in particular, with the use of force (in self-defense) threatening death or serious bodily harm. The section, in that regard, clearly recognizes , the "castle” doctrine, stating, in part, that a person need not retreat if attacked "within his dwelling place which is not also the dwelling place of the other____” Comment h, as noted, defines the term “dwelling place” in that context.


author: Thompson, J.,

text:
    THOMAS NICHOLAS DRAVO v. STATE OF MARYLAND
    [No. 41,
    September Term, 1980.]

      Decided October 10, 1980.

    The cause was argued before Morton, Thompson and Liss, JJ.

      Robert A. Greenberg, with whom was Victor A. Houlon on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, State’s Attorney for Anne Arundel County, and William Roessler, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Thomas Nicholas Dravo, the appellant, was convicted of possession of marijuana with intent to distribute. He was tried in the Circuit Court for Anne Arundel County, before Judge Raymond G. Thieme, sitting without a jury, and was sentenced to serve five years in prison. The appellant’s sole defense was that he had been entrapped by a police informer.

The appellant contends the trial court erred in failing to find entrapment as a matter of law and secondly that the so-called "objective” test for entrapment should supersede the "subjective” or "origin of interest” test currently used in Maryland.

The appellant was arrested on July 27, 1979, when he attempted to sell approximately 16 pounds of marijuana to an undercover police officer, Detective Sergeant William Fogle of the Annapolis Police Department, who was the State’s sole witness at trial. He testified that approximately two weeks prior to the appellant’s arrest he received an offer from one Richard Ramey to perform "some drill work”, i.e., to act as an informant in connection with illegal drug transactions. Although Sergeant Fogle accepted Ramey’s offer, no specific arrangements for the utilization of Ramey’s services were made at that time. Fogle testified that he later confirmed that Ramey had previously acted as an informant for the Anne Arundel County Police, that he had been found to be reliable in so doing, and that convictions had been obtained as a result of his activities. At approximately 4:30 p.m. on July 27, 1979, Ramey telephoned Sergeant Fogle and informed him that he knew someone who had a substantial quantity of marijuana for sale. When Fogle indicated that the price for the marijuana was too high, Ramey said that he would call back again. A few minutes later, Ramey telephoned again; he told Fogle that the sale had been arranged at the price Fogle was willing to pay. Less than an hour later, Sergeant Fogle, driving an unmarked police vehicle, was parked in the parking lot of an establishment known as "Charlie’s West Side.” Fogle testified that he had told Ramey to bring the seller to that location, where they would make the purchase. The informant, Ramey, arrived in a rented car driven by the appellant. There the appellant instructed Ramey to tell Fogle that he wouldn’t make the sale at that location and that Fogle should follow them in his vehicle to another location. The appellant testified that he refused to make the sale on the parking lot of Charlie’s West Side because he believed that there had recently been considerable police activity in that area. From the parking lot, Sergeant Fogle followed the appellant and Ramey some distance to another parking lot. Fogle testified that, when he had parked his vehicle next to the appellant’s, the appellant asked whether he had the money; Fogle replied that he did. Fogle then asked the appellant whether he had the marijuana; the appellant also replied in the affirmative. The two men then went to the rear of the appellant’s vehicle, where the appellant opened the trunk and displayed the marijuana. At that time Sergeant Fogle identified himself as a police officer and placed the appellant under arrest.

The appellant took the stand in his own defense. He testified on direct examination that he had been convicted in 1967 and again in 1973 for drug offenses; he had served time in prison for each conviction. He stated that since his release from prison following his second conviction, he had not been involved in any illegal drug trafficking. He stated that approximately two weeks prior to his arrest he encountered the informant, Ramey, at a methadone clinic where the appellant’s girlfriend was receiving treatment. The appellant indicated that he had previously become acquainted with Ramey when they were incarcerated together in 1967. According to the appellant, Ramey asked the appellant, during the course of their conversation, whether "there was anybody around town that had any pot”; the appellant testified that he replied: "I told him that I hadn’t been here in seven years, I wasn’t looking for any, I wasn’t interested and I wasn’t doing it any more. I wouldn’t even know where to begin to look.” The appellant stated that he encountered Ramey for a second time approximately three days before his arrest and for a third time at approximately 1 p.m. on the day of his arrest. The appellant stated that, during both of these meetings, Ramey "kept bugging” him about obtaining some marijuana. During the latter meeting, the appellant claimed that "finally I realized that he wasn’t going to let me alone, and I told him that I had no idea where I could find any in town. That I’d just ask and for him to get back to me, see what would happen.” By 4:30 p.m. the appellant had acquired some sixteen pounds of marijuana. He testified that he telephoned his girlfriend, told her of Ramey’s request, and that she in turn contacted a man, identified only as "Chuck”, who had sixteen pounds of marijuana for sale. The appellant’s girlfriend then drove with Chuck, in a car which Chuck had rented, from Alexandria to Annapolis, where they met the appellant. Shortly thereafter, the informant Ramey joined them, Chuck turned over the car containing the marijuana to the appellant, and the appellant and Ramey drove to the rendezvous with Sergeant Fogle, where the appellant was arrested. The appellant claimed that it was Ramey who talked with Fogle, who opened the trunk, and who conducted the sale.

Maryland has adopted what has been termed the "origin of interest” test for evaluating claims of entrapment. This test was first adopted by this Court in Simmons v. State, 8 Md. App. 355, 259 A.2d 814 (1969), and subsequently approved by the Court of Appeals in Grohman v. State, 258 Md. 552, 267 A.2d 193 (1970), cert. denied, 401 U.S. 982, 91 S. Ct. 1204 (1971). "[T]he fact that government agents 'merely afford opportunities or facilities for the commission of the offense does not’ constitute entrapment. Entrapment occurs only when the criminal conduct was 'the product of the creative activity’ of law enforcement officials. (Emphasis supplied).” Simmons v. State, supra at 361, quoting Sherman v. United States, 356 U.S. 369, 372, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958).

Thus, two questions of fact must be resolved in each case: "(1) did the agent [of the police] induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense.” Simmons v. State, supra at 362. The burden as to the first question, that of inducement, is upon the accused. In order to raise the defense of entrapment, he must show by a preponderance of the evidence that he was induced by the police to commit the offense charged. Simmons v. State, supra. The burden as to the second question, that of predisposition, is upon the State. Once the accused has raised the defense, the State must show that the commission of the criminal act was not due to police persuasion but that it was instead the result of the defendant’s own predisposition. This must be proven beyond a reasonable doubt. Simmons v. State, supra. It should be emphasized:

"[T]hat the defense of entrapment cannot be considered as 'having been raised’ — that entrapment cannot become an issue for the trier of the facts — unless there is sufficient evidence which, if deemed weighty and credible by the trier of the facts, would support a finding that the police, directly or through their agent, induced the defendant to commit the offense charged. Unless there is evidence to show inducement, the second question — predisposition — is irrelevant.” Fisher v. State, 28 Md. App. 243, 248-49, 345 A.2d 110 (1975).

The appellant contends that entrapment was shown at trial as a matter of law. In Fisher v. State, supra at 249-50, we set forth the circumstances under which entrapment could be considered to be established as a matter of law:

"A motion for judgment of acquittal based upon that defense requires the Court to decide whether there is undisputed evidence, so clear and decisive that reasonable minds, applying the correct law, could not differ in finding that the defendant was induced by the police to commit the offense, and that his criminal conduct was due to the persuasion of the police, and not to his own readiness or predisposition to commit the offense. Only when such is the state of the evidence is there entrapment as a matter of law.”

We are of the opinion that such is not the state of the evidence in the case at bar. The appellant’s testimony was the only evidence offered at trial to show entrapment.

The case thus comes before us on facts which are similar to those which were before the United States Supreme Court when it heard Masciale v. United States, 356 U.S. 386, 78 S. Ct. 827, 2 L. Ed. 2d 859 (1958), a companion case to Sherman v. United States, supra. Although neither the appellant nor the State cited Masciale in their briefs or during oral argument before this Court, we find the decision of the Supreme Court to be instructive. Before the Supreme Court, Masciale argued that his narcotics conviction should be overturned on the grounds that as a matter of law the defense of entrapment had been established. There, as in the case at bar, the defendant testified at trial that a police informer had engaged in a campaign to persuade him to sell narcotics and argued that his undisputed testimony concerning the actions of the informer explained why he eventually sold narcotics to an undercover policeman and established entrapment as a matter of law. The Supreme Court rejected this argument. The Court held that, while the defendant had presented sufficient evidence to reach the jury on the issue of entrapment, the jury was entitled to disbelieve the defendant’s testimony and to find him guilty. The Court further held that, despite the defendant’s explanation and account of his meeting with the undercover police officer, the jury could have believed the testimony given by the officer and inferred from that testimony that the defendant was predisposed to commit the crime for which he was convicted.

For similar reasons, we reject the appellant’s contention that, in the case at bar, entrapment was established as a matter of law.

The credibility of the witnesses at trial is of course for the trier of fact. Watson v. State, 282 Md. 73, 382 A.2d 574 (1978), cert. denied, 437 U.S. 908, 98 S. Ct. 3100; Rettman v. State, 15 Md. App. 666, 292 A.2d 107 (1972), cert. denied, 266 Md. 741. Thus, we have held that the trier of fact is under no obligation to believe even the uncontradicted explanations or denials of an accused. Rettman v. State, supra; Jones v. State, 13 Md. App. 309, 283 A.2d 184 (1971).

Here, the trial court, like the jury in Masciale, was entitled to disbelieve the appellant’s testimony concerning the solicitation by the informant Ramey. Inasmuch as that testimony was the only evidence offered which tended to show inducement, if the appellant’s testimony was not believed then there was before the court no showing of inducement whatsoever and the issue of entrapment was not raised. See, Simmons v. State, supra.

Even if the court below chose to. believe the appellant’s account of the events leading up to his arrest, under the circumstances involved here we are of the opinion that the trial court could have properly concluded that the conduct of the informant Ramey did not constitute inducement or that the appellant was nonetheless predisposed to commit the offense.

We have previously refused to find entrapment absent the "repeated and persistent solicitation of a previously law abiding citizen in order to overcome his reluctance to commit a crime.” Simmons v. State, supra, at 359, quoting from Stewart v. State, 232 Md. 318, 193 A.2d 40 (1963). We do not believe that the actions of the informant in this case, in asking the appellant, during the course of three chance encounters over a two week period, if he knew where marijuana could be obtained, constitutes the kind of solicitation which would overcome the reluctance to commit a crime of a previously law-abiding citizen. We believe the trier of fact would be justified in concluding that an individual, who obtained sixteen pounds of marijuana on three hours’ notice and who took steps to avoid police surveillance while conducting the transaction, was predisposed to commit the offense with which he was charged. The judgment of the trial court on the facts will not be set aside unless clearly erroneous. Rule 1086.

The appellant also contends that we should reject the "origin of interest” test for entrapment and adopt the so-called "objective” test.

The "objective” test was set forth in the concurring opinion in Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932) (opinion Roberts, J.) and Sherman v. United States, supra, (opinion Frankfurter, J.) and in the dissenting opinions in United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973) (opinions of Douglas, J. and Stewart, J.). Unlike the "origin of interest” test, the "objective” test is not concerned with the predisposition, or lack thereof, of the accused; instead, it focuses upon the actions of the government agent and requires an examination of "whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.” 356 U.S. at 382, (opinion of Frankfurter, J.).

The appellant’s argument is not persuasive.

First, as noted above, the Court of Appeals accepted the "origin of interest” test in Grohman v. State, supra. That decision remains the law today.

Second, appellant failed to present any sound reason for discarding the "origin of interest” test in favor of the "objective” test. Appellant’s assertion that the "objective” test is employed by a growing number of jurisdictions notwithstanding, the "origin of interest” enjoys far wider acceptance than does the "objective” test. See, 62 A.L.R.3d 110, Modern Status of the Law Concerning Entrapment to Commit Narcotics Offense State Cases. The "origin of interest” test has been approved by a majority of the Justices of the United States Supreme Court on at least three separate occasions. See, Sorrells v. United States, supra, Sherman v. United States, supra, and Russell v. United States, supra. While these decisions are of course not binding upon this Court, inasmuch as the entrapment defense is not constitutional in nature, see, Russell v. United States, supra, this is authority which we found persuasive when we first adopted the "origin of interest” test in Simmons v. State, supra, and we find it persuasive today.

Third, the evidence presented below fails to establish entrapment as a matter of law, regardless of whether the "origin of interest” or the "objective” test is applied. As we noted above, it is clear that the trial court did not believe the testimony of the appellant concerning the efforts of the informer Ramey to persuade him to enter into a drug transaction. Unless that testimony was believed, there was before the trial court no evidence whatsoever to show misconduct by any agent of the State. Even if the testimony were to be believed, we doubt whether Ramey’s conduct could be considered so outrageous and so offensive as to bar prosecution of the appellant. Thus, entrapment even under the "objective” test was not established as a matter of law.

Judgment affírmed.

Appellant to pay the costs.

      . We note that counsel was unable to refer us to, and our own research fails to disclose, a single appellate decision in this State in which entrapment was found as a matter of law. See, Fisher v. State, supra, at 249-50, n. 1, and cases cited therein.

      . This distinguishes the instant case from that presented in Sherman v. United States, supra, where entrapment was found as a matter of law based on the uncontradicted testimony of the prosecution’s witness.

      . Had the case at bar been tried before a jury, the appellant’s testimony would have been sufficient to require that the jury be instructed as to the law of entrapment. See, Byrd v. State, 16 Md. App. 391, 297 A.2d 312 (1972).