author: Mason, J.,

text:
    DONALD GASQUE v. STATE OF MARYLAND
    [No. 230,
    September Term, 1979.]

      Decided May 7, 1980.

    The cause was submitted on briefs to Mason, Couch and MacDaniel, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Louis P. Willemin, Assistant Public Defender, for appellant.

      Submitted by Stephen H. Sachs, Attorney General, Stephen E. Caplis, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Ronald Rothwell, Assistant State’s Attorney for Baltimore City, for appellee.
   Mason, J.,

delivered the opinion of the Court.

Appellant, Donald Gasque, was convicted at a bench trial in the Criminal Court of Baltimore of escape. He was sentenced to a term of twenty months consecutive to a pre-existing six year sentence he was then serving. On appeal appellant argues:

1. That the trial court erred in increasing his sentence once it had already been imposed.

2. That his trial was not held within 120 days.

3. That the evidence was insufficient to support his conviction for the crime of escape.

I.

During the penalty stage of the trial on December 7,1978, the following colloquy occurred:

"THE COURT: The sentence is two (2) years to the Commission of Correction consecutive with the present sentence he is now serving. The court costs will be waived.
* * *
MR. McALLISTER: [Appellant’s trial counsel]: Will that start July 11, 1978, the day he was arrested on this offense?
THE COURT: He was arrested on July 11th, is that not correct?
MR. McALLISTER: July 11, 1978, and he has been in the City Jail awaiting trial on that charge.
THE COURT: He is entitled to credit on that and he will receive credit from July 11, 1978.
THE CLERK: If it is going to be consecutive, you can’t do that because we don’t know when the present sentence starts and that begins.
THE COURT: I will make a change in the sentencing. The sentence is twenty (20) months to the Commission of Correction, consecutive to the present sentence being served. That will give him credit for the time he has served.”

The colloqujr supra shows that appellant was sentenced to two years with credit for the time spent in jail (four months and twenty six days), which resulted in a sentence of nineteen months and four days. Immediately thereafter, the court modified the sentence to a term of twenty months.

Appellant argues that the court erred in increasing his sentence by twenty six days and in support thereof he cites Maryland Rule 774 (b), which in relevant part provides: "For a period of 90 days after the imposition of a sentence ... the court has revisory power and control over the sentence. Pursuant to this section, the court may modify or reduce or strike but may not increase the length of, a sentence.. ..”

In Smith v. State, 31 Md. App. 310 (1976) defendant’s conviction was set aside on appeal. She was reprosecuted and a twelve year sentence was imposed. Smith was not given credit for time spent in custody under the prior sentence, which was a violation of Article 27, section 638C (b) (Code 1957, 1976 Repl. Vol.). After discovering the error, the court resentenced Smith to fifteen years with credit for time served. In holding that Smith’s sentence was improperly increased, this Court said:

"As we have indicated, the 12 year term imposed was legal, and the only aspect of the sentence that was illegal was the lack of credit for time served. Rule 764 §a [now Rule 774 a] permitted that defect to be corrected, but it did not empower the judge to strike the 12 year term. It is correct that § b 1 [now Rule 774 b] of the Rule gives the trial judge, within the 90 day period, broad powers over a sentence even though it has been imposed. But those powers permit the modification or reduction of the sentence. Costello v. State, 237 Md. 464, 472 (1965). The judge may not increase it.” (Emphasis in original.) Id. at 320.

The State argues that in changing the sentence from two years to twenty months, the court reduced rather than increased appellant’s sentence. It flatly asserts:

"It is plain that credit for pre-trial detention (for the same crime of which the person is ultimately sentenced) is mandated by statute. See Article 27, section 638C, Annotated Code of Maryland. At the present time, appellant will be serving a sentence of 20 months, against which will be credited the four months and twenty-six days of pre-trial incarceration. ...”

Article 27, section 638C (a) alluded to by the State provides, in substance, that any person who is convicted and sentenced shall receive credit for all time spent in jail as a result of the charge for which sentence is imposed.

The problem with the assertion of the State is that it fails to explain when, how or by whom the four months twenty six days of pretrial incarceration will be credited to appellant against the twenty month sentence imposed. Moreover, the State ignores subsection (d) of section 638C which provides:

"(d) Time of awarding credit; statement on record. — The credit required by subsections (a), (b) and (c) of this section shall be awarded by the trial judge at the time of sentencing. After having communicated with the parties, the judge shall inform the defendant and shall state on the record the amount of time that is to be credited and the facts upon which the provision for credit is based.”

We find nothing in the record to show that the court credited appellant with the time he spent in jail awaiting trial against the twenty month sentence imposed. In determining whether appellant is entitled to receive credit for the time in question, we must reconcile the apparent conflict between section 638C (a) which requires that any person who is convicted and sentenced shall receive credit for all time spent in jail as a result of the charge for which sentence is imposed and Article 27, section 139 (a) (Code 1957, 1976 Repl. Vol.) which requires that any sentence imposed for the crime of escape must be consecutive to the sentence under which the inmate was originally confined. In other words, must a defendant who is already serving a term of imprisonment for another crime, receive credit on his escape sentence for time spent in custody awaiting trial for the crime of escape? We think not.

In People v. Bachman, 50 Mich. App. 682, 213 N.W.2d 800 (1974) the Court was called upon to consider whether the lower court had erred in failing to grant the defendant credit against his escape sentence for time spent incarcerated between his arraignment on the escape charge and sentencing. In deciding this question the Court was required to reconcile provisions of the Michigan Code that were similar to the provisions of Article 27, section 139 (a) and Article 27, section 638C (a) of the Maryland Code, which provide that the sentence for prison escape is mandatorily consecutive and that credit must be granted for time spent in jail for "any crime” between arraignment and sentencing. In resolving this conflict the Court said (at 213 N.W.2d 802):

"The conflict between the credit-granting statute and the mandatory consecutive sentence statute is obvious. In the former, the Legislature expressed its intent that credit be granted for time spent in jail for 'any crime’ between arraignment and sentencing. In the latter, the Legislature unambiguously directed that the sentence for prison escape commence at the completion of any former sentences 'then being served’. Thus, in a case such as this, where the defendant was serving a valid, prior sentence between the time of arraignment and sentencing on a charge of prison escape, to grant him credit against the sentence imposed for the time between arraignment and sentencing is to contravene the Legislative directive that the prison escape sentence commence only at the expiration of the prior sentences. We are faced, therefore, with a conflict between a general statute granting credit and a more specific statute which, in effect, denies such credit. In such circumstances, it is a fundamental rule of statutory construction that the specific statute takes precedence over the general and is viewed as an exception thereto. (Citations omitted.) We conclude that the mandatory consecutive sentence statute is an exception to the general credit granting statute and hence the trial court did not err in denying defendant credit for the time he was incarcerated between arraignment and sentencing on the charge of prison escape.” (Emphasis in original.)

See also People v. Patterson, 392 Mich. 83, 219 N.W.2d 31, 34 (1974) where the Supreme Court of Michigan not only approved the basic reasoning of Bachman, supra, but extended it to a statute which allowed the imposition of either a consecutive or a concurrent sentence. The Court held that credit for pre-trial incarceration either for escape or some other subsequent crime cannot be granted a prisoner already serving a sentence arising from a prior crime.

Likewise, in Danforth v. State, 316 So. 2d 304 (Fla. App. 1975) the Court held that the trial court did not err in failing to give two defendants credit for time spent in jail prior to being sentenced for escape. As in Bachman, supra, the Court had to reconcile the provisions of the credit granting statute, F.S. § 921.161 (1), with the provisions of the statute requiring the imposition of a consecutive sentence upon conviction of escape. In rejecting the defendant’s allegation of error the Court held:

"Since the time awaiting an escape trial is a mandatory continuation of the defendant’s original sentence as a matter of law, F.S. § 921.161 (1) is not applicable. Most assuredly, appellants automatically received credit on the original sentences for time served awaiting disposition of the escape charge, therefore, the trial court was correct in refusing to give them credit for time served as applied to the sentence imposed on the escape charge itself.” Id. at 306.

We think the rationale of Bachman, Patterson and Danforth, supra, is persuasive and pertinent here. Accordingly, we conclude that appellant is not entitled to receive credit against the twenty month sentence imposed for the time he spent in jail awaiting trial on the escape charge. Consequently, his sentence was not illegally increased.

Appellant, however, is not without a remedy. He is entitled to receive credit against the original sentence from which he escaped for the time spent in jail under the provisions of Division of Correction Regulation 285-6 which, in relevant part, provides:

"a. When an inmate is apprehended on escape and ultimately returned to the jurisdiction of the Division of Correction, the inmate, promptly after his return to the Division, shall be advised, in writing, that he may be entitled to receive credit against the sentence from which he escaped for the time he may have spent incarcerated in this State after apprehension but before return to an institution in the jurisdiction of the Division of Correction.
(1) All time spent incarcerated in another correctional or detention facility (i.e. county jail, city jail, etc.) in this State while in escape status from a Division of Correction institution shall be credited toward the reduction of the sentence(s) the inmate was serving at the time of his escape.”

II.

Maryland Rule 746 (a) provides:

"Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days [now 180 days] after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Coünsel).”

The record here shows appellant was arrested on July 11, 1978, arraigned on August 27, 1978, and tried on December 7, 1978. Appellant argues that he was not tried within 120 days from the date of his arrest in violation of Rule 746 (a), supra. This argument is without merit. Nothing in Rule 746 (a) requires the trial of a defendant within 120 days after his arrest. Moreover, in State v. Hicks, 285 Md. 310, decided June 25, 1979, the Court of Appeals held that the mandatory effect of Rule 746 was prospective and only applied to future criminal prosecutions. Since appellant’s trial occurred on December 7, 1978, the mandatory effect of the rule does not apply to his case.

HI.

The final argument of appellant is that the evidence was insufficient to support his conviction of escape. This argument is equally without merit.

The record shows that appellant was an inmate of the Division of Correction and was assigned to the Pre-Release Center at 920 Greenmount Avenue in Baltimore City. Appellant left the Center on May 21, 1978, and did not return. He was arrested on July 11, 1978 for escape. It is clear that appellant’s departure from the Pre-Release Center, a place where he was legally detained and confined, was sufficient to permit the trier of facts to find him guilty of the crime of escape beyond a reasonable doubt. See Stewart v. State, 21 Md. App. 346 (1974); Vucci v. State, 18 Md. App. 157 (1973); Beasley v. State, 17 Md. App. 7 (1973). Nor do we find any merit to appellant’s oblique contention that the conditions at the Pre-Release Center caused him to escape. Not only was this issue not raised below, Maryland Rule 1085, but the conditions complained of on appeal for the first time fall far short of the duress required to justify an escape. See Robinson v. State, 42 Md. App. 617 (1979); see also United States v. Bailey, 444 U.S. 394, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980).

Judgment affirmed.

Costs to be paid by appellant.


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    QUINN HOMES, INC. v. BAY CITY IMPROVEMENT ASSOCIATION, INC.
    [No. 843,
    September Term, 1979.]

      Decided May 7, 1980.

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

      Gabriel J. Poggi, with whom were Blondell & Poggi on the brief, for appellant.

      John W. Sause, Jr., for appellee.
   Morton, J.,

delivered the opinion of the Court.

This is an appeal from a declaratory judgment entered in the Circuit Court for Queen Anne’s County (Carter, J.) which affirmed the enforcement by the Bay City Improvement Association, Inc., appellee, of a certain restrictive covenant imposed on property owned by Quinn Homes, Inc., appellant. Appellant contends that the lower court’s construction of the covenant was erroneous.

The covenant in question is one of several imposed by The Bridgeside Company, the original developer, in 1952 on a 404 acre parcel of land of which the subject property is a part. The covenants were properly recorded and their validity is unquestioned. They provided for the planned development of a residential community by, among other things, imposing use restrictions on the residential lots and establishing a property owner’s association (appellee) to administer and enforce the covenants. One of the covenants, G-l, stated:

"Except as hereinbefore recited [i.e., except for the possible establishment of a retail commercial area at a certain location], all lots in said Community shall be for residential use only and not for purposes of any trade or business whatsoever.”

Appellant wants to build a "speculative home” on its lot which, upon completion, will be offered for sale to the general public. It has on at least two prior occasions constructed houses on other lots subject to covenants, but then it had specific contract-purchasers for the homes. Now it has no such contract-purchaser in advance.

The covenants require that all construction plans be approved by appellee in advance and appellant, accordingly, submitted its plans to appellee. But appellee refused to approve them unless appellant signed an "Application for approval of plans” (Application). Among other things the Application provides that the applicant agrees that "[t]he proposed building ... is to be erected for the sole use and occupancy of the applicant as a residence and is not being built and will not be used as a sample or speculative home.” Since this is precisely appellant’s purpose, it refused to sign.

Appellant thereupon sought a declaratory judgment in the court below that would allow it to construct the house. Appellant contended that the warranties contained in the Application were not required by the covenants. But the court below found that the aforementioned covenant G-l did proscribe the use of any lot for building and selling speculative houses, relying upon Chesapeake Estates v. Foster, 265 Md. 120 (1972), and that appellee’s refusal to approve appellant’s plans was proper.

Appellant first contends that the restrictive covenants do permit construction of speculative homes. It argues that the expressed intent of the original developer to establish a residential community is not defeated by the construction and sale of a speculative home. Since ambiguous language in covenants is construed in favor of unrestricted use, appellant concludes that the prohibited "trade or business” of G-l can only be a business of a continuing nature.

This argument is for naught because, as appellant admits, Chesapeake Estates v. Foster, supra, at 125, held that a covenant identical to G-l did prohibit construction and sale of a sample home. Appellant attempts to distinguish Chesapeake in two ways. First it contends that the instant case is somehow different because here we know the express intent of the original developer, whereas, in the Chesapeake opinion there is no mention of the original developer’s intent. This is as far as appellant takes this frivolous argument and we infer that it wants to say that the intent of the original developer in Chesapeake was to prohibit construction of sample homes, but the intent of the original developer here was to allow them. A full reading of the Chesapeake opinion, however, shows that the original developer’s intent there was exactly the same as here: to create a planned residential community. The lack of an expressed statement of such from the Chesapeake opinion is irrelevant. Appellant also attempts to distinguish Chesapeake by limiting its holding to "sample” homes as opposed to "speculative” homes. It asserts there is a difference between these two terms. But whether appellant is semantically correct is of no import because the house at issue in Chesapeake was built for the same purpose as the one here, to sell to the general public. Id. at 122. In our opinion, Chesapeake is controlling and the covenant does prohibit construction of appellant’s house.

Appellant next contends that appellee’s approval of its prior uses, construction of homes for contract-purchasers, obliges it to approve its present planned use. Appellant cites no authority for this argument, but instead asserts that the uses are the same. The short answer is that the uses are not the same. Construction of a house for a contract-purchaser does not lend itself as easily to real estate speculation as does construction of a "speculative” home as the name itself implies. Appellee is not obliged as a result of its approval of appellant’s prior projects to approve this one.

Judgment affirmed; costs to be paid by appellant.


author: Thompson, J.,

text:
    LESTER THOMAS MAYNE, JR. v. STATE OF MARYLAND
    [Nos. 890 and 930,
    September Term, 1979.]

      Decided May 7, 1980.

      The cause was argued before Gilbert, C. J., and Morton and Thompson, JJ.

      James R. White, with whom was C. Daniel Saunders on the brief, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Basil Wadkovsky, State’s Attorney for Kent County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

On August 9, 1978, the body of Valerie Anne Mayne was found at her home at Rock Hall, Kent County, Maryland. The home was owned by her estranged husband, Lester Thomas Mayne, Jr., the appellant. An autopsy revealed that death was caused by a single stab wound to the abdomen. A knife was discovered near the body by the officers who arrived in response to a telephone call from the appellant. On August 15, 1978, appellant insisted that his attorney inform the police that the knife found by the officers was not the same knife he had discovered when he found his wife’s body because that knife had been removed by him. He had thrown it into Swan Creek from the vessel upon which he was living and which was docked nearby. The officers discovered the knife at the location described.

Appellant testified at trial that at or about 2 or 2:30 a.m. on August 9, he left the Village Tavern with his wife, after having a few drinks. At that time he was not intoxicated. After they arrived at her home they talked for approximately half an hour; after which he went to his boat. He remained on the boat for 15 or 20 minutes and then went back to the house where he found his wife "sitting in the living room on the couch crying.” At that time, appellant told his wife that he wanted to end their marriage. He then left the house and returned to his boat. After staying on the boat for a brief period he again returned to the house. Upon his arrival he found his wife lying on the floor bleeding. He picked up a knife that was lying near her and threw it overboard when he went back to his boat. He then went to bed. Upon awakening, he returned to the house and started thinking about what he had done. He said, "I had taken away the knife and I knew it would look pretty bad on me.” He then went to the kitchen, got a knife out of the drawer, put some of his wife’s blood on it, and threw it on the floor. He stated he was sober at that time. He testified that when he initially discovered the body, he was upset and thought in his confused state of mind that by discarding the knife, no one would see that she had hurt herself.

On September 6, 1978, he was indicted in a seven count indictment charging (1) murder in the first degree; (2) murder in the second degree; (3) manslaughter; (4) assault with intent to murder; (5) assault and battery; (6) making a false statement to the police; and (7) attempted obstruction of justice. The case was tried in the Circuit Court for Caroline County to which it had been removed. The trial judge, K. Thomas Everngam, submitted to the jury counts 1, 2, 5 (as to battery) and 7. The other counts were either nolle pressed by the State'or dismissed by the court. When the jury returned its verdict, the following occurred:

"The Court: Gentlemen, we have received another note, which we have read to you in Chambers. 'We may have misled you, we have reached a verdict on Counts one and seven, but are deadlocked on Count two and fear we can not come to a unanimous decision.’
"The Court: It is the Court’s ruling that we have instructed them that they can rule on Count seven no matter how they have ruled on the previous Counts, guilty or not guilty. We therefore, will take a partial verdict on the first and seventh Counts.”
"The Clerk: Lester Thomas Mayne, Jr., please stand and raise your right hand.
"Ladies and Gentlemen of the jury, look upon the defendant at the bar. What say you, Mr. Foreman, do you find the defendant guilty or not guilty of the matter whereof he stands charged on Count one, to wit, murder in the first degree?
"The Foreman: Not guilty.
"The Clerk: What say you, Mr. Foreman, do you find the defendant guilty or not guilty on Count number seven, to wit, attempt to obstruct justice?
"The Foreman: Guilty.
"The Court: Now, Mr. Foreman, do we understand from your notes that you are unable to come to a verdict on Counts two and five; is that correct?
"Mr. Foreman: That is correct, Sir.”

After the jurors were harkened unto their verdict, they were excused. Thereafter the State’s Attorney inquired of the court as to whether or not there was anything officially in the record with respect to a mistrial as to the remaining counts, whereupon the court declared a mistrial as to count 2, murder in the second degree, and count 5, battery. Appellant received a five year sentence for attempted obstruction of justice.

Thereafter the case was moved to the Circuit Court for Cecil County, (Mackey, J.), where a motion to dismiss counts 2 and 5 on the basis of double jeopardy was denied. In this consolidated appeal, appellant alleges that his conviction for obstruction of justice in the Circuit Court for Caroline County was improper and that the denial of his motion to dismiss by the Circuit Court for Cecil County was in error.

We will answer the contentions in inverse order.

I Double Jeopardy

Appellant first argues that although Maryland Rule 759 d permits the court to take a partial verdict in a criminal case and provides that an accused may be retried on any count upon which the jury did not agree, in this case retrial should not be permitted because the trial judge did not state there was a mistrial until after the jury had been discharged. The argument not only lacks supporting authority but it lacks logic as well. The rule itself provides that there is a mistrial if the jury does not agree on all counts and, thus, the declaration by the court was entirely superfluous.

Appellant argues secondly that having been acquitted of the first count which set forth the statutory language of first degree murder, he should by operation of law be found not guilty of second degree murder. He relies on Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918 (1977), which stated that murder indictment for first degree murder also included charges of second degree murder and manslaughter. He argues that double jeopardy precludes another trial. He cites a long line of Maryland cases ending with Bennett v. State, 229 Md. 208, 182 A.2d 815 (1962) to show that once an accused is acquitted he cannot be retried. The fallacy with this argument is that there was no acquittal as to murder in the second degree. The law is well settled that "|w]here the meaning of the verdict is so unmistakable, mere inartificiality in its form will not be sufficient to defeat justice by nullification of a verdict which plainly declared the intent of the jury ...”. Simmons v. State, 165 Md. 155, 169, 167 A. 60 (1933); Barber v. State, 16 Md. App. 235, 241, 295 A.2d 814 (1972). In the instant case, the intent of the jury could not be more clear.

In Powers v. State, 285 Md. 269, 401 A.2d 1031 (1979), cert. denied, 444 U.S. 937 (1979), the Court extended the doctrine of collateral estoppel as set forth in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), to cover a single trial where the jury was unable to agree on a verdict as to one count but acquitted on other counts, having a common issue of ultimate fact. This extension is of no help to the appellant because in the instant case there was no determination of any ultimate fact that would require the appellant’s acquittal for second degree murder. It is apparent that all that the jury decided was that appellant did not premeditate his wife’s killing.

II Attempt to Obstruct Justice

Appellant presents two arguments for reversal of his conviction for attempted obstruction of justice. First, he argues that the trial judge erred by his failure to instruct the jury that suicide is not a crime in Maryland. Appellant argues the failure to give the instruction was improper because the appellant could not have been convicted of an attempt to obstruct justice if his wife had committed suicide, because suicide is not a crime in Maryland. We do not see it that way. Under Md. Code, Art. 22, § 6, a medical officer, the police officers, and the State’s Attorney are charged with the investigation of any death that is suspicious or unusual whether or not a crime has been committed. Appellant’s actions in substituting the knife and giving false reports to the police department would have obstructed justice whether or not suicide is a crime in Maryland or whether or not the wife committed suicide in the instant case. See Md. Code, Art. 27, § 27.

The appellant next contends that the trial judge committed error in instructing the jury they could consider possible intoxication of the defendant prior to, and at the time of, the crime only as applied to first degree murder. The trial judge’s statement of the law was inaccurate because any attempt to commit a crime requires a specific intent. Perkins, Criminal Law, 573 (2d ed. 1969). The error was of no importance, however, because appellant admitted he was sober at the time he put the substitute knife near his wife’s body and at the time he falsely advised the police of what happened that morning. The testimony as to intoxication at the time he removed the knife was not sufficient to show that he was "so drunk that he is unable to formulate that mens rea.” State v. Gover, 267 Md. 602, 606, 298 A.2d 378, 381 (1973). There is no need for a trial judge to give an instruction unless it is supported by the evidence. Tripp v. State, 36 Md. App. 459, 463, 374 A.2d 384, cert. denied, 281 Md. 745 (1977).

Judgment affirmed in No. 890.

Order affirmed in No. 930.

Case remanded for trial.

Appellant to pay the costs.

      . Rule 759 d states:
      "When there are two or more counts, the jury at any time may return a verdict with respect to a count as to which it has agreed, and any count as to which the jury cannot agree, may be tried again.”

      . Retrial on second degree murder is possible even under a single count murder indictment. In Rasnick v. State, 7 Md. App. 564, 571, 256 A.2d 543 (1969), cert. denied, 257 Md. 735, cert. denied, 400 U.S. 835 (1970), this Court stated: "Even though a retrial on murder in the first degree is precluded under some circumstances, e.g. an acquittal at the first trial, that does not mean the accused cannot be retried for second degree murder or manslaughter under the same indictment.”


author: Moore, J.,

text:
    CARLTON G. BEALL v. CECELIA M. BEALL
    [No. 1065,
    September Term, 1979.]

      Decided May 8, 1980.

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

      J. Frederick Garner, with whom was C. Calvert Lancaster on the brief, for appellant.

      Steven Rosen, with whom were Willoner, Calabrese & Rosen, P.A. on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal concerns an alleged option agreement and a suit by Carlton G. Beall for the specific performance thereof. The Circuit Court for Prince George’s County (Melbourne, J.) found the agreement unsupported by consideration and dismissed plaintiffs bill of complaint pursuant to Maryland Rule 535. From that order, he appeals to this Court.

I

In 1968, the plaintiff, Carlton G. Beall, purchased a farm in Prince George’s County from Pearl Beall. At that time, the property was farmed by Pearl’s son, Calvin Beall. The record discloses that Carlton, the plaintiff, and Calvin were second cousins. Calvin was married to Cecelia M. Beall, the defendant herein. Carlton agreed that Calvin could continue to farm the property if he would pay the annual property taxes. Calvin and Cecelia owned and resided on a parcel of about one-half acre that was bordered on three sides by the farm bought by the plaintiff; and it is that parcel that is the subject of this dispute.

On the day that plaintiff contracted to buy Pearl’s farm, he obtained a three-year option to purchase Calvin’s and Cecelia’s parcel for $28,000.00. The option recited a consideration of $100.00 which was paid by check. In 1971, the parties executed a new option, for five years, but on the same terms and reciting an additional $100.00 consideration.

This 1971 option was never exercised by the plaintiff, but prior to its expiration the following language was appended at the bottom of the page:

"As of October 6, 1975, we, Calvin E. Beall and Cecelia M. Beall, agree to continue this option agreement three more years — Feb. 1, 1976 to Feb. 1, 1979.
/si Calvin E. Beall
/s/ Cecelia M. Beall.”

It is this purported extension that forms the basis for plaintiffs bill of complaint seeking specific performance of the agreement. Calvin died in August 1977, and Cecelia now holds the fee simple title by right of survivorship. In letters dated May 24, 1978 and September 14, 1978, the plaintiff advised Cecelia that he was electing to exercise the option. He scheduled settlement for October 5, 1978. As the chancellor found:

"It is undisputed in this case that Mr. Carlton Beall did eventually hire attorneys to search the title, set a settlement date, attend the settlement, and was ready, willing and able to perform the contract.”

Cecelia refused to attend settlement, and this suit for specific performance ensued.

At trial, after plaintiff presented his evidence, Cecelia moved to dismiss the bill of complaint. The chancellor granted the motion because she felt that the option agreements were not supported by consideration in that "no benefit . . . flowed to Cecelia Beall.” In addition, as to the 1975 alleged option, the chancellor ruled:

"[TJhere is no consideration recited in that extension or purported extension of the original option contract. And the one extension that had occurred in the interim, even then would also fail because there is no consideration stated in the extension. It is clear that consideration must pass for the extension each time, in some form of consideration. None is stated within the written four lines.”

On appeal, the plaintiff contends that the chancellor erred in dismissing the bill of complaint and in excluding certain testimony relative to oral transactions with Calvin, the deceased husband of the defendant.

II

Under Maryland law it is clear that "an option is not a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance, but a binding agreement if supported by consideration.” Blondell v. Turover, 195 Md. 251, 256, 72 A.2d 697, 699 (1950). In other words, an option is an agreement to keep an offer open that requires consideration to give it its irrevocable character. Goldman v. Connecticut General Life Insurance Co., 251 Md. 575, 581, 248 A.2d 154, 158 (1968). Once the option is exercised by the optionee a binding contract is created that may be enforced through a decree commanding specific performance. Diggs v. Siomporas, 248 Md. 677, 681, 237 A.2d 725, 727 (1968); Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. It is apparent, then, that an option must be supported by consideration in order to be irrevocable for the period provided in the option.

When, however, the consideration allegedly supporting an option fails or is nonexistent, the option is no longer irrevocable but rather it becomes "a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance... .” Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. The failure of consideration destroys the irrevocability of the option; it nonetheless retains its essential characteristic as an offer to buy or sell for the period stated in the option or until revoked. It has been recognized that equity will enforce a resulting contract despite lack of consideration for the option:

"While the rule that equity will enforce a contract consummated by the acceptance of an option within the time and upon the terms of the option is often stated in such a way as to suggest or imply the necessity of consideration for the option, all that is meant in most cases is that a consideration is necessary to prevent the defendant from asserting his withdrawal of the option before its acceptance by the plaintiff and before the expiration of the time fixed in the option within which acceptance could be made.”

71 Am. Jur. 2d, Specific Performance § 143 (1973) (footnotes omitted). See 1A Corbin on Contracts § 263 (1963). See generally Kahn v. General Development Corp., 40 Del. Ch. 83, 92, 174 A.2d 307, 312 (1961) (failure of consideration "destroyed the irrevocability of the option”). Burkhead v. Farlow, 266 N.C. 595, 597, 146 S.E.2d 802, 804 (1966) (option without consideration was "mere offer to sell which defendants might have withdrawn at any time before acceptance”); Rose v. Minis, 41 N.J. Super. 538, 543, 125 A.2d 535, 538 (1956) (option which is mere offer is "simply a naked revocable authority”).

Assuming, arguendo, that the 1975 option was unsupported by consideration, it remained as an offer to sell the parcel for $28,000. The offer was open until February 1, 1979, but it was revocable at any time by action of Calvin and Cecelia Beall. As stated in the case of Holifield v. Veterans’ Farm & Home Board, 218 Miss. 446, 450, 67 So. 2d 456, 457 (1953):

"It is well settled that an option is not binding as a contract where there is no consideration, unless it is accepted within the time limit and before the offer is withdrawn. Since there was no consideration paid by the Veterans’ Farm and Home Board and Mauldin for the option, it could have been revoked by the Holifields at any time before the Veterans’ Farm and Home Board and Mauldin notified them that they intended to buy the land; but since the offer was accepted within the time limit and before withdrawal, the contract became binding upon all parties as it was thereafter supported by the consideration of the mutual promises.” (Emphasis added.)

This statement is generally in accord with the Maryland cases, supra.

The chancellor should, therefore, have determined whether or not there was a valid, unrevoked offer to sell the property in dispute and whether or not there was a proper acceptance of that offer sufficient to create a contract specifically enforceable in equity. These issues of offer and acceptance primarily involve factual determinations that initially must be evaluated by the chancellor. As an appellate court, we are limited to a review of the chancellor’s findings under the "clearly erroneous” standard. Md. Rule 1086. But our review is dependent upon the existence of factual findings on the issues material to the case. Such findings were not made below.

It was error for the chancellor to dismiss plaintiffs bill of complaint at the close of his case. A new trial, in accordance with this opinion, is necessitated.

Order reversed; cause remanded for a new trial in accordance with this opinion; costs to abide the final result.

      . We express no opinion concerning the validity of the chancellor’s finding that there was no consideration for the option.


author: Liss, J.,

text:
    PILAR LOWENTHAL et al. v. MORTON E. ROME and ALBERT LOWENTHAL, Personal Representatives of the Estate of Jean Arthur Lowenthal et al.
    [No. 1083,
    September Term, 1979.1

      Decided May 8, 1980.

    The cause was argued before Mason, Liss and Couch, JJ.

      John D. Alexander, Jr., with whom were Allen, Thieblot & Alexander on the brief, for appellants.

      Stephen C. Winter, with whom were White, Mindel, Clarke & Hill on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

The appellants in this case are Pilar Lowenthal, the widow of Jean Arthur Lowenthal, and his children, Jean Arthur Lowenthal, Jr. and Loretta Lowenthal. The appellee is Morton E. Rome, the surviving personal representative of the estate of Jean Arthur Lowenthal.

The appellants, on January 20,1978, filed a petition in the Orphans’ Court of Baltimore City in which they sought to have a Spanish will of the deceased (dated March 3, 1976) admitted to judicial probate. Appellee filed an answer in which he contended the relief sought by the appellants ought not be granted. Appellee also requested the Orphans’ Court to deny the admission of the Spanish will to judicial probate. After a hearing, the Orphans’ Court, on October 20, 1978, granted appellee’s motion to dismiss. Appellants entered an appeal from that order to the Superior Court of Baltimore City. Subsequently, appellee, the surviving personal representative of the estate, filed a motion to dismiss the appeal pending in the Superior Court on the ground that a transcript of the proceedings originally held in the Orphans’ Court was not filed within thirty days of the date of the final judgment of that court. A hearing on that motion was held on September 25, 1979, and the presiding judge found: that the appeal to the Superior Court had been timely filed; that the Superior Court had jurisdiction over the issues raised; but that the appellants had failed to comply with the requirement that a transcript of the testimony before the Orphans’ Court be filed within thirty days from the final date of its order. On that basis, the presiding judge dismissed the appeal, and it is from the order issued by the presiding judge that this appeal was filed.

The narrow issue raised by this appeal is:

Whether in an appeal from the Orphans’ Court to the Superior Court, which is designated as an appeal de novo, the appellant is required by the provisions of Section 12-502 (a) and (b) of the Courts and Judicial Proceedings Article (1974,1979 Cum. Supp.) to file in the Superior Court within thirty days a transcript of the testimony from the Orphans’ Court.

Judicial probate of a will is a judicial act or determination of a court having competent jurisdiction in order to establish the validity of a will. Probate may also be the proof before an ordinary surrogate, register of wills or other authorized person produced for official recognition and registration in an attempt to establish that the last will and testament of a certain deceased person is such in reality. See Peterson v. Demmer, 34 F. Supp. 697 (N.D. Tex. 1940); Simpson v. Anderson, 305 Ill. 172, 137 N.E. 88 (1922).

The statutes which govern in this case are found in Maryland Code (1974, 1979 Cum. Supp.) Sections 12-501, 12-502 (a), 12-502 (b) of the Courts and Judicial Proceedings Article. Section 12-501 states:

A party may appeal to the Court of Special Appeals from a final judgment of an orphans’ court. However, if the final judgment was given or made in a summary proceeding, and on the testimony of witnesses, an appeal is not allowed under this section unless the party desiring to appeal immediately gives notice of his intention to appeal and requests that the testimony be reduced to writing. In such case the testimony shall be reduced to writing at the cost of the party requesting it.

Section 12-502 provides:

(a)-Instead of a direct appeal to the Court of Special Appeals pursuant to Section 12-501, a party may appeal to the circuit court for the county or to the Superior Court of Baltimore City from a judgment of an orphans’ court. The appeal shall be heard de novo by the appellate court and it shall give judgment according to the equity of the matter. This subsection does not apply to Harford County or Montgomery County.
(b)-An appeal pursuant to this section shall be taken by filing an order for appeal with the register of wills within 30 days after the date of the final judgment from which the appeal is taken. Within 30 days thereafter the register of wills shall transmit a transcript of the proceedings to the court to which the appeal is taken unless the orphans’ court from which the appeal is taken extends the time for transmitting the transcript.

It is clear that the Legislature in its wisdom has provided two separate appellate avenues for an appeal from a final judgment of an orphans’ court. In Section 12-501, the Legislature has authorized a direct appeal from an orphans’ court to this Court. It has specifically provided in the event of such an appeal that an appeal is not allowed unless the party desiring to appeal gives immediate notice of intention to appeal and requests that the testimony before the orphans’ court be reduced to writing. Such an appeal is governed by the rules promulgated with reference to appellate review on the record.

Conversely, Section 12-502 (a) and (b) authorizes an aggrieved party to appeal to the circuit court in the jurisdiction in which the orphans’ court sits, and the circuit court is then required to hear the controversy de novo and to give judgment according to the equity of the matter. The appeal is required to be taken by filing an order of appeal with the register of wills within thirty days after the final judgment of the orphans’ court. Within thirty days thereafter the register of wills is required to file a transcript of the proceedings held before the orphans’ court in the circuit court.

Appellants contend that there is a substantial difference between a trial de novo and an appellate hearing in the nature of a review upon the record. They state that in the de novo trial the circuit court sits as if there had been no prior trial. They further contend that neither the testimony before the orphans’ court nor its conclusions as to law or fact have any controlling effect. Appellants urge that such a case is presented to the circuit court as if there had never been a prior hearing or judgment.

The Court of Appeals had this issue before it in Estate of Soothcage v. King, 227 Md. 142, 146, 176 A.2d 221 (1961), which considered the effect of a previous statute identical to Section 12-502. That case involved a de novo hearing in the Circuit Court for Baltimore County following the orphans’ court decision revoking the prior issuance of letters of administration. In commenting on the nature of the de novo trial under such circumstances, the Court said: "The appeal to the Circuit Court under Sec. 25 of Art. 5 of the Code (1957) required a trial de novo. Therefore, neither the testimony before the Orphans Court nor its findings thereon are now of any controlling effect.” The court went on to say:

Even if we assume (what is not clear from the scanty record before us of the proceedings in the Orphans’ Court) that the Orphans’ Court had directed plenary proceedings to be had and hence that an answer under oath was required, or that it was required without specific order in any plenary proceedings in the Orphans’ Court, we think that the appellee is not entitled to prevail on this contention. The short and sufficient answer to it is that the appeal from the Orphans’ Court to the Circuit Court under Section 25 of Art. 5 of the Code (1957) requires a trial de novo, and any technical defect in pleading in the Orphans Court seems of no importance on such a trial.. .. We need not consider what the rule might be if the Circuit Court had been sitting in strictly appellate review of the order of the Orphans’ Court based on the proceedings in that Court, nor yet what it might be if this case had involved a direct appeal from the Orphans’ Court to this Court. [227 Md. at 148-49.]

Appellee relies most heavily on the case of County Federal Savings & Loan Assoc. v. Equitable Savings & Loan, 261 Md. 246, 274 A.2d 363 (1971). That case involved an appeal from the Board of Building, Savings and Loan Commissioners to the appropriate circuit court. The appellants in that case appealed one issue, however, at the de novo appeal, as required by Code (1957, 1966 Repl. Vol.) Article 23, Section 216H (e), the appellee attempted to argue and present evidence concerning all other issues in the case including those issues which were not appealed by the appellants. The Court was called upon to determine whether an appeal de novo from an administrative agency precluded that circuit court from considering the transcript of testimony and exhibits presented at the hearing before the Board. The Court of Appeals concluded that the Maryland Rules dealing with administrative agency appeals, Maryland Rules B1 through B12, must be read in concert with the provision for de novo appeals found in Article 23, Section 161H (e), and that in such a de novo appeal, the circuit court could and should take into consideration the evidence produced before the administrative board. 261 Md. at 256. In County Federal Savings & Loan, supra, the Court of Appeals indicated that there are several possible types of de novo appeals depending on the language of the statute or the rules creating the right of de novo appeal. The Court of Appeals there compared the de novo statute of Article 23, Section 216H (e) with the de novo statute dealing with appeals from the Board of Property Review in condemnation cases as discussed by the Court in Volz v. State Roads Commission, 221 Md. 209, 156 A.2d 671 (1959). In Volz, the Court was called upon to construe then Article 89B, Section 18 of the Annotated Code of Maryland (1957), which provided in part as follows:

"In the event either the Commission or the property owner shall be dissatisfied with the findings and award of the board of property review either shall have the right, within thirty (30) days therefrom, of appeal to the circuit court for the county * * * in whichever jurisdiction the property is situated. Upon appeal the case shall be heard and determined under the procedure set forth in this article [89B] and Article 33 A of the * * * Code * * *. In cases where the appeal is sought by the property owner he shall so notify the Commission in writing and it shall be the duty of the Commission to prepare and file the condemnation case in the proper court, * * * and the case shall be heard de novo and as if there had been no hearing before the board of property review.” (Emphasis added.) [221 Md. at 212-13.]

In its analysis in the Volz case, the Court found that the statute in Volz required the appeal to be treated as if it were a new proceeding and that the appeal was not to be considered an appellate review on the record. Under these circumstances, the Court concluded in Volz that the record before the Board of Review should not have been considered at the trial de novo. This was directly contrary to the Court’s holding in County Federal Savings & Loan, supra, where the Court said:

Certainly by the wording used in Article 23, Section 161H (e), the Legislature did not contemplate any new proceeding in providing for a de novo appeal from a decision of the Board of Building, Savings and Loan Commissioners. We think an appeal providing for new evidence on the issues appealed from as well as a consideration of the record before the Board, is what was intended. [261 Md. at 258.]

We conclude that the holding in County Federal Savings & Loan, supra, is distinguishable from the present case. In County Federal Savings & Loan, the Court of Appeals concluded that under the applicable statutory scheme in that type of proceeding the trial de novo granted by statute was not to be considered a new proceeding. It held that what was contemplated was an interplay between the statute (Article 23, Section 161H (e), the Administrative Procedure Act (Article 41, Section 244 et seq.), and the Maryland Rules. There, the Court found that: the statute required that the agency transmit to the clerk of court the record of the agency’s proceedings including a transcript of the testimony before the agency; that the Rules (Rule B7 a) required the submission of any exhibits filed in the original proceedings; that additional evidence be allowed, where permitted by law (Rule BIO); and that the court in which the appeal was filed would hear the case de novo, with a right of the parties to call additional witnesses and to introduce additional evidence (Article 23, Section 161H (e)). Most importantly, the court could reverse or modify the agency’s decision if the findings of the agency were unsupported by the entire record which included the evidence and exhibits introduced at the de novo hearing. In essence, this amounted to an appellate review on the record rather than a true de novo proceeding.

We are convinced that the appellate scheme offered under Section 12-502 is substantially different from that contemplated in County Federal Savings & Loan, supra, and that the de novo trial permitted in Section 12-502 is, in fact, a new proceeding. Clearly, Section 12-502 is to be considered in conjunction with the provision for a direct appeal to this Court authorized by Section 12-501. The Legislature, in adopting Section 12-502, created an alternative right of appeal when it stated: "Instead of a direct appeal to the Court of Special Appeals pursuant to 12-501, a party may appeal — to the Superior Court of Baltimore City from a judgment of an orphans’ court. The appeal shall be heard de novo by the appellate court and it shall give judgment according to the equity of the matter.” (Emphasis supplied.)

The language of this last sentence obviously precludes any suggestion that the alternative right of appeal to the circuit court granted by Section 12-502 was intended to be an appellate review of the action previously taken by the orphans’ court with the peripheral right of the appellant to offer additional testimony. The admonition to the circuit court that it give judgment according to the equity of the matter, we think, requires the circuit court to exercise its judgment free of any conclusion previously reached by the orphans’ court. We think it is significant that the two sections when read together disclose a substantial difference in the manner in which an appeal is required to be perfected. Section 12-501, which provides for an appeal to this Court, specifically requires that if "testimony’ is taken before the orphans’ court, the party desiring to appeal must request that the testimony be reduced to writing at the cost of the party requesting it. Implicitly, then, the rules as to appeals to the Court of Special Appeals would govern the appellate proceeding.

In Section 12-502 (b), however, the register of wills is required to transmit a "transcript of the proceedings” to the court to which the appeal is taken. No mention is made of the "testimony” nor is any duty imposed on the appellant to have that "testimony” reduced to writing. Nor do we accept the proposition that the phrases "transcript of testimony” and "transcript of the proceedings” are interchangeable in meaning. It is conceded that the Superior Court did, in fact, receive a transcript of the proceedings within the time required by Section 12-502. That transcript included all relevant pleadings and orders and furnished the appellate court with an accurate picture of the procedural background of the status of the cases and the issues to be decided. The trial judge, in dismissing the appeal, indicated the transcript of the testimony might have been useful in the impeachment of witnesses or as a substitution for the live testimony of a deceased or unavailable witness. These are, however, evidentiary matters within the control of the contesting parties. If the testimony was needed for such purposes by any of the parties it would have been the responsibility of that party to have the testimony prepared so that its admission might be determined at an appropriate point in the proceedings.

As we conclude the de novo hearing in this case is a new hearing requiring the appellate court to hear the case ab initio, and as we find Section 12-502 does not impose a duty to have the testimony written and filed with the court, we conclude that the trial judge erred in dismissing the appeal in this case.

Order of dismissal reversed, remanded for new trial; costs to be paid by appellees.


text:
    LIVINGSTON FIRE PROTECTION, INC. et al. v. DOROTHY HUBBARD
    [No. 1103,
    September Term, 1979.]

      Decided May 8, 1980.

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

      L. Palmer Foret and David P. Durbin, with whom were Carr, Jordan, Coyne & Savits on the brief, for appellants.

      John M. Quinn, with whom were Rowan, Abell, Quirk & Quinn on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

The appellants, Livingston Fire Protection, Inc. (Employer) and Travelers Insurance Company (Insurer), hereinafter designated as "Livingston,” have filed this appeal from a judgment of the Circuit Court for Montgomery County, which reversed an order of the Workmen’s Compensation Commission of Maryland. The appellee is Dorothy Hubbard, the widow of Harold R. Hubbard, a former employee of Livingston. By this appeal, appellants raise issues concerning the appropriate disposition of funds recovered by the employee in a suit against a third party tortfeasor.

Pursuant to Maryland Rule 1028, the parties have stipulated that the facts in this case are as follows: The husband of the appellee was injured on January 17, 1969, while in the employ of Livingston. The injury occurred when a pipe-fitting known as a "hanger” broke, causing Hubbard to fall some twelve to fifteen feet to the ground. He sustained serious and permanent injuries from this fall and as a result was ultimately adjudicated to have been permanently and totally disabled by the Maryland Workmen’s Compensation Commission.

From January 21, 1969, through and including December 10, 1971, Hubbard’s employer’s insurer, the Travelers Insurance Company, paid him the sum of $11,616.55 in benefits for temporary total disability. On September 1, 1971, the Workmen’s Compensation Commission found Mr. Hubbard to be permanently and totally disabled. That award was subsequently modified on November 17, 1971, to provide Mr. Hubbard benefits in the amount of $70 a week with total payments not to exceed $30,000, the maximum compensation then available under the Workmen’s Compensation Act. No appeal was filed as to this award.

During the pendency of the workmen’s compensation proceedings, Hubbard, as permitted by statute (Md. Ann. Code Art. 101, Section 58), retained counsel and instituted an action in tort against the third party tortfeasor, which had manufactured the purportedly defective hanger. The Travelers Insurance Company made informal arrangements with Mr. Hubbard’s counsel to have its statutory claim protected in that suit.

The third party action proceeded to trial and Mr. Hubbard recovered a judgment in the amount of $240,393.65 against the third party tortfeasor. By the time of the payment of the judgment, the outstanding claim of the Travelers Insurance Company was $46,109.23, consisting of payments of the temporary total disability benefits, medical expenses and legal fees related to the third party complaint, together with permanent total disability payments.

At the time Mr. Hubbard recovered the third party judgment, some $17,950 remained as the unpaid balance on the total of $30,000 in permanent total disability benefits. It was conceded that by operation of law, Mr. Hubbard forfeited his right to those future payments by his acceptance of the third party recovery.

Pursuant to an agreement between Hubbard and his counsel, Mr. Hubbard’s attorney received a contingent fee in the amount of fifty percent of the total third party recovery. This included a fifty percent fee on the sum of money recovered on account of Travelers’ Workmen’s Compensation claim and, as a result, Travelers received in cash $23,054.60. This was exactly one-half of the amount of the total payments made by Travelers as of the date the proceeds were distributed. After deduction of the fifty percent fee due his attorney on account of the remainder of the award, the balance was distributed to Mr. Hubbard in cash.

Mr. Hubbard then filed a petition for modification of his existing award of workmen’s compensation benefits, claiming entitlement to $8,975, the sum alleged to be due representing attorneys’ fees on the $17,950 unpaid balance on the compensation award, which was eliminated by his acceptance of the third party action judgment proceeds but which had not been reimbursed to Travelers. Mr. Hubbard’s petition for modification was denied by order dated July 21, 1978, signed by Commissioner Edward A. Palamara.

After this denial, the Hubbards sought review in the Circuit Court for Montgomery County. After cross-motions for summary judgment had been filed, on August 16, 1979, Judge Frosh entered an opinion and order which directed entry of judgment against Livingston and Travelers in the amount of $8,975. Judgment for the Hubbards was entered on August 17, 1979, and the appeal was timely noted.

Each of the parties to this case has proposed issues to be decided. We shall state the issues raised by the parties as follows:

I. Did the Circuit Court for Montgomery County have jurisdiction to review the action of the Workmen’s Compensation Commission?
1. Did the Maryland Workmen’s Compensation Commission have the power under Section 57 and Section 58 of Article 101 to direct the payment of counsel fees due as a result of recovery of damages under a third party claim arising out of a compensable injury?
2. If the Commission has such power, is its denial of a petition for modification of an award an appealable decision?
II. Did the Circuit Court properly interpret and apply Section 58 of the Maryland Workmen’s Compensation Act?
1. Does an employer/carrier’s proportionate share of the costs of an employee’s third party action include compensation payments awarded but not yet paid and not recovered in that action?

We conclude that our answer to the first issue under Question I is dispositive of this case and will make unnecessary the consideration of the remaining issues raised by the parties. The opinion of the trial judge in this case determined as an initial matter that the Circuit Court for Montgomery County had jurisdiction to review the earlier action of the Workmen’s Compensation Commission and to decide the substantive issues presented to the court. The trial judge based his conclusion on the plenary power found in Code (1957,1964 Repl. Vol.), Article 101, Section 40 (c) of the Workmen’s Compensation Act.

The Act provides the underlying basis for the rules of statutory construction and interpretation that apply to Workmen’s Compensation proceedings. Section 63 of the Act explicitly provides: "The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this article; but this article shall be so interpreted and construed as to effectuate its general purpose.”

In implementing this philosophy, a number of special principles of statutory construction and interpretation have evolved in Workmen’s Compensation cases, including the following:

1. The Workmen’s Compensation Act should be construed liberally in favor of the injured employees, as its provisions will permit, in order to effectuate its benevolent purposes. Bayshore Industries, Inc. v. Ziats, 232 Md. 167, 192 A.2d 487 (1963); W.C. & A.N. Miller Development Co. v. Honaker, 40 Md. App. 185, 388 A.2d 562 (1978), aff’d, 285 Md. 216, 401 A.2d 1013 (1979); Keene v. Insley, 26 Md. App. 1, 337 A.2d 168 (1976).
2. The Workmen’s Compensation Act should receive a practical, not a strict, construction and should be so interpreted and construed as to effectuate its general purposes. Superior Builders v. Brown, 208 Md. 539, 119 A.2d 376 (1956); Larkin v. Smith, 183 Md. 274, 37 A.2d 340 (1944).
3. Any uncertainty in the Workmen’s Compensation law should be resolved in favor of the claimant. Coats & Clark’s Sales Corp. v. Stewart, 39 Md. App. 10, 383 A.2d 67 (1978); Keene v. Insley, supra.
4. Conflicts in the Workmen’s Compensation law should be resolved in favor of the claimant. Kraushar v. Cummins Construction Corp., 180 Md. 486, 25 A.2d 439 (1942); Lisowsky v. White, 177 Md. 377, 9 A.2d 599 (1939).

Appellants rely on Article 101, Section 58 for their contention that an injured employee who recovers a third party judgment in excess of compensation benefits still due is precluded from seeking further administrative or appellate relief. Section 58 provides in pertinent part as follows:

[T]he amount thus received by the injured employee [third-party recovery] or in case of death by his dependents shall be in lieu of any award that might otherwise have been made thereafter in the same case under the provisions of this article and said case shall thereafter be deemed to have been finally settled and closed unless the amount thus received by the injured employee or his dependents from such other person shall be less than the injured employee or his dependents would be otherwise entitled to receive under the provisions of this article, in which event he or his dependents shall have the right to reopen the claim for compensation under this article to recover the difference between the amount thus received by the injured employee or his dependents and the full amount of compensation which would be otherwise payable under this article. [Emphasis supplied.]

We hold that the recovery and payment of the third party judgment ousted any further jurisdiction of the Workmen’s Compensation Commission in this compensation claim unless and until the amount received from the third party was less than the compensation award. This holding is consistent with our holdings in Nazario v. Washington Adventist Hospital, Inc., 45 Md. App. 243, 412 A.2d 1271 (1980), and Brocker Manufacturing & Supply Co. v. Mashburn, 17 Md. App. 327, 301 A.2d 501 (1973). Appellee has referred us to cases in other jurisdictions but we need not rely on them as Section 58, in our opinion, is susceptible of only one rational interpretation.

Appellee also relies on Section 57 and contends that by the provisions of that section the Commission has been assigned a definite function in the determination of the payment of counsel fees. The pertinent portion of Section 57 provides as follows:

No person shall charge or collect any compensation for legal services in connection with any claims arising under this article, or for services or treatment rendéred or supplies furnished pursuant to Section 37 of this article, unless the same be approved by the Commission. Upon application of any party in interest, the Commission shall have full power to hear and determine any and all questions which may arise concerning legal services rendered in connection with any claim under this article, and may order any attorney or other person receiving the same to refund to the person paying the same, any portion of any charge for legal services which the Commission may, in its discretion, deem excessive. Orders of the Commission regulating payments and refunds for legal services may be enforced in the courts of this State, or may be appealed from in a like manner as awards from compensation under this article.

A reading of the language of this section convinces us that it gives the Commission no jurisdiction whatsoever over the payment or allocation of counsel fees in connection with a third party claim as the pertinent language of the section is specifically limited to legal fees "rendered in connection with any claim under this article.”

In the light of our conclusion that the Workmen’s Compensation Commission had no jurisdiction to direct or allocate the payment of counsel fees claimed as the result of the successful conclusion of the third party claim arising out of the original compensation claim, it is obvious that the trial court had no jurisdiction to hear and determine an appeal arising out of that controversy. We conclude the court below was in error in ordering that the employer/insurer be required to pay the sum of $8,975 representing attorneys’ fees on the $17,950 unpaid balance of the original compensation award.

Judgment reversed, costs to be paid by appellee.

      . Section 40 (c) Modifications or changes. — The powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified; provided, however, that no modification or change of any award of compensation shall be made by the Commission unless application therefor shall be made to the Commission within five years next following the last payment of compensation.

      . It is conceded that the amount of third party recovery in this case is substantially greater than any amount recoverable under the workmen’s compensation law.

      . Cooper v. Argonaut Insurance Companies, 556 P.2d 525 (1976); Security Insurance Co. v. Norris, 439 S.W.2d 68 (1969); Wall v. Connecticut Welding & Machine Co., 179 A.2d 235 (1962); Stacy v. Noble, 361 S.W.2d 285 (1962); Charles Seligman Distributing Co. v. Brown, 360 S.W.2d 509 (1962).


author: Couch, J.,

text:
    EASTERN ENVIRONMENTAL ENDEAVOR, INC. et al. v. INDUSTRIAL PARK AUTHORITY OF CALVERT COUNTY et al.
    [No. 1148,
    September Term, 1979.]

      Decided May 8, 1980.

      The cause was argued before Mason, Liss and Couch, JJ.

      Jack R. Cooper, with whom was Alan L. Fishbein on the brief, for appellants.

      Allan S. Handen, with whom were Mark A. Singerman, Robert L. Gray and Handen & Singerman on the brief, for appellees.
   Couch, J.,

delivered the opinion of the Court.

Eastern Environmental Endeavor, Inc. (EEE) and Joseph Huang, president of EEE, appellants, appeal the order of the Circuit Court for Calvert County granting appellee’s, Industrial Park Authority of Calvert County (IPA), "motion to enforce settlement agreement.” Pursuant to the order, judgment was entered against EEE in the amount of $15,000 and against Huang in the amount of $5,000.

The settlement agreement between appellants and appellee arose out of litigation concerning cost overruns in the construction of a water purification plant, waste water treatment plant and control building upon property owned by IPA. EEE and Huang provided engineering services and construction supervision on the job. In November of 1977 the general contractor, Southern Maryland General Contractors, Inc. (SMGC), filed an amended declaration against IPA for sums due it pursuant to the construction contract and for extra work performed by SMGC. IPA then filed an amended third party claim against EEE and Huang claiming that the third party defendants, appellants here, were liable for any damages suffered by IPA as a consequence of SMGC’s suit.

Negotiations among the three parties’ attorneys ensued and two settlement agreements, one between SMGC and IPA and another between IPA and EEE and Huang, were reached sometime in November, 1978. According to the motion to enforce the settlement agreement, IPA and EEE and Huang agreed to the following: IPA was to release EEE and Huang from any liability arising out of the subject matter of the third party complaint; Huang was to pay IPA $2,000 in cash; Huang and his wife were to execute a confessed judgment note for $3,000 payable to IPA in three months; EEE was to execute a confessed judgment note for $15,000 payable to IPA on demand; and, finally, both EEE and Huang were required to release IPA from any liability resulting from claims contained in the third party claim. IPA did sign the release which relieved EEE and Huang of any liability arising from the third party complaint but, notwithstanding several attempts by IPA’s counsel to obtain compliance, neither EEE nor Huang forwarded an executed release, releasing IPA of liability, the $2,000 in cash or the two confessed judgment notes. IPA, since compliance was apparently not forthcoming, filed a motion to enforce the settlement agreement. After a hearing on the motion at which IPA’s counsel testified concerning the negotiation of both settlement agreements and appellants’ failure to conform to the terms of the agreement with IPA, the trial court held the matter sub curia and subsequently filed an opinion and order which reduced the settlement agreement to judgment. In the opinion the trial court made two points relevant to this appeal. The trial court found that the settlement with EEE and Huang was made contemporaneously with the settlement between SMGC, the main suit plaintiff, and IPA. The trial court also found that it had jurisdiction to enforce, within the original proceedings between the third party plaintiff and the. third party defendant, the agreement "the parties reached themselves for the purposes of avoiding trial,” by reducing the agreement to judgment. Judgment was entered against EEE in the amount of $15,000, the same amount as the confessed judgment note required by the settlement. A $5,000 judgment was entered against Huang representing the $2,000 in cash and the confessed judgment note to be signed by Huang in the amount of $3,000.

On appeal EEE and Huang raise the following issues:

1. Did the trial court err in finding that a court of law possessed subject matter jurisdiction to rule upon a "Motion to Enforce Settlement Agreement” which sought only equitable relief — i.e., specific performance of an agreement?
2. Did the trial court err in ordering relief inconsistent with that requested in the pleadings?
3. Did the trial court err upon the facts in finding that the settlement between Plaintiff and Defendant was predicated upon the ability of counsel for Defendant to finalize a settlement agreement with Third Party Defendants and that the two settlement agreements were entered into contemporaneously?
3a. Did the settlement of the Third Party claim between the Defendant and the Third Party Defendants lack consideration in that the Plaintiff and Defendant had entered into a settlement agreement prior thereto?

(1)

IPA’s motion to enforce the settlement agreement contains the following prayers for relief:

"1) That this Honorable Court pass an order requiring third party defendants to comply with the terms and conditions of the settlement agreement;
3) And for such other and further relief that this Honorable Court might deem necessary and just.”

Appellants contend that the first prayer seeks specific performance, although it does not specifically characterize the relief as such, an equitable remedy which can only be granted by a Court of Equity, citing Horst v. Kraft, 247 Md. 455, 231 A.2d 674 (1967). Appellants’ reliance on Horst is misplaced. In Horst the parties to a toft action reached an accord, prior to the filing of any suit, that the appellant, an artist, in satisfaction of appellee’s tort claim would furnish appellee with a certain number of paintings. Upon appellant’s failure to produce the paintings, appellee filed suit against appellant seeking damages for personal injuries. Appellee then filed a motion for summary judgment upon the ground that there had been an accord but no satisfaction between the parties. The trial court granted the summary judgment for twenty works of art and directed the appellant to deliver those paintings already selected by appellee and supply a certain number of high quality paintings from which appellee could select the remaining paintings. The Court of Appeals reversed the trial court’s ruling and remanded the matter for further proceedings, having found that certain material facts were in dispute. The Court also pointed out "that the lower court erroneously granted specific performance in the present case. Specific performance is within the sound discretion of a court of equity, [sic] (citation omitted) and as such is exclusively within the province of equity and cannot be obtained in a court of law.” Id. at 459.

Several notable differences distinguish the present case from Horst. In the first instance, the law action in this case was filed before the settlement agreement was reached; in Horst the matter allegedly was settled prior to the instigation of the law action. The plaintiff in Horst had her choice of forums for enforcement of the agreement, she simply did not choose the proper one. A different matter, however, is presented with the settlement of an ongoing law action. One year after Horst the Court of Appeals announced a favorable policy with regard to the compromise or settlements of law suits in the interest of efficient and economical administration of justice and the lessening of friction and acrimony. Chertkof v. Harry Weiskittel Co., 251 Md. 544, 550, 248 A.2d 373 (1968), cert. den., 394 U.S. 974; Clark v. Elza, 286 Md. 208, 406 A.2d 922, 928 (1979). Obviously, it would not serve this policy to bind the hands of a trial judge in enforcing a settlement agreement merely because a motion to enforce can be interpreted to request an exercise of equitable jurisdiction in a case docketed on the law side. The single most distinguishing factor between this case and Horst is that the trial court did not exercise equitable powers. The lower court did not require that appellants furnish appellee with the confessed judgment notes or the $2,000 in cash as the settlement agreement required. The trial court, however, did assess damages and entered a monetary judgment against both appellants in accordance with the third prayer for such other and further relief, which is certainly within the jurisdiction of a law court.

Although the Court of Appeals in Chertkof did not decide the precise question presented here, the Court apparently saw no difficulty with the entry of a money judgment based upon a settlement agreement between the parties. Chertkof v. Harry Weiskittel Co., supra at 549-50. A more recent Court of Appeals case involving a settlement agreement, Clark v. Elza, supra, while not directly addressing the propriety of a motion to enforce a settlement agreement in an underlying legal action, 406 A.2d at 924 n. 1, did hold that a settlement agreement is an executory accord and that a plaintiff in breach of the accord could not prosecute the underlying tort action. Id. at 927-28. In so holding the Court quoted with approval from Warner v. Rossignol, 513 F.2d 678 (1st Cir. 1975). The United States Court of Appeals held in Warner that:

"... while the agreement to compromise was binding and enforceable against a defaulting party — barring plaintiff from proceeding with his original action in breach of the agreement — plaintiff did not entirely relinquish his original cause upon entering into the agreement of compromise. The tort action would only be conclusively terminated when the $6,000 was paid against delivery of the releases and dismissal stipulation; until then it remained in abeyance and if defendant repudiated the settlement or committed a material breach of its terms, plaintiff could elect either to sue for $6,000 or to rescind and press forward upon the original cause.” [Emphasis added.] Id. at 683, quoted in Clark v. Elza, supra, 406 A.2d at 927.

We understand this to be a clear indication from the Court of Appeals that entry of a monetary judgment upon a motion to enforce a settlement agreement in the underlying legal action is properly within the jurisdiction of the law court. Accordingly, we perceive no error in the trial court’s order granting appellee’s motion to enforce the settlement agreement.

(2)

Appellants also complain, much along the lines of their first argument, that the trial court erred in ordering relief inconsistent with that relief requested in the motion. Appellants insist that the prayer for an order requiring appellants’ compliance with the settlement agreement is strictly a prayer for specific performance. Appellants cite Mills v. Zion Chapel, 119 Md. 510, 87 A. 257 (1913), for the proposition that the provisions of a circuit court decree and order were erroneous as not within the relief requested by the bill of complaint. The bill filed in Mills was one for specific performance, the prayer was that it may be required to be specifically performed, and no other relief was asked.

That is not the case here. Even were we to conclude that a request for compliance with a settlement agreement is tantamount to a request for specific performance and cannot have any other meaning, we do not believe the trial court was precluded from awarding damages. Appellants overlook the third prayer for such other and further relief as the court might deem necessary and just, a prayer which was not present in Mills. Accordingly, the award of damages was entirely consistent with this prayer for relief.

(3)

Appellants also take issue with the following factual finding of the lower court:

"The testimony adduced at the hearing clearly indicates that a settlement had been made with the third party defendants (EEE and Huang) contemporaneously with the settlement between the Industrial Park Authority and Southern Maryland General Contractors, Inc.”

Appellants claim that this factual conclusion is not supported by the evidence and the trial court, therefore, clearly erred. Under Md. R. 1086 this Court must assume the truth of all the evidence and of all the favorable inferences fairly deducible from it tending to support the factual conclusion of the trial court. Jacober v. High Hill Realty, Inc., 22 Md. App. 115, 321 A.2d 838 (1974); Carling Brewing Co. v. Belzner, 15 Md. App. 406, 291 A.2d 175 (1972). The attorney who negotiated the settlement agreement testified at the hearing on the motion to enforce that "(the settlement with SMGC) was a contemporaneous thing. It was about the same time. In fact it was really part of the package.” On cross examination he gave the following response to a question asked by appellants’ counsel:

"We were negotiating both claims. As a matter of fact, the amount that was paid in that claim, part of the consideration that was' taken into consideration by the Industrial Park Authority and actually the County Commissioners were aware of it because they would have had to finance this settlement, was whatever we could get from Mr. Huang and his corporation.”

While the witness exhibited some confusion as to the exact date each settlement agreement was reached, this confusion relates to the credibility of the witness, which is a matter to be resolved by the trial court. Md. R. 1086. We believe that the attorney’s testimony, despite confusion as to dates, constituted competent, material evidence which supports the trial court’s conclusion that the agreements were made contemporaneously. See Staley v. Staley, 25 Md. App. 99, 335 A.2d 114 (1975).

(3a)

Appellants claim that the third party litigation was terminated once SMGC and IF A settled and therefore, since there was no forbearance to sue for a lawful claim, the settlement agreement was not supported by consideration. It is well established that forbearance to exercise a legitimate right or a claim is sufficient consideration to support an agreement. Erie Ins. Exchange v. Calvert Fire Ins. Co., 253 Md. 385, 252 A.2d 840 (1969). We have no difficulty in concluding that appellee forebore pursuing a claim in this instance; the matter was in the course of litigation when the agreement was reached. Nor do appellants maintain that IPA’s claim was not legitimate. Appellants rest their argument upon the unique nature of third party litigation. According to appellants, the requirement of Md. R. 315 that the liability of the third party defendant to the original defendant must be for all or a part of the claim of the original plaintiff against the original defendant, militates the conclusion that once the original claim was settled, there was no basis upon which to prosecute the third party claim and thus there could be no forbearance. The evidence, however, indicates that both agreements were negotiated contemporaneously and that IPA would not have settled with SMGC, the original plaintiff, if EEE and Huang had not also agreed to settle. IPA clearly did not jeopardize its ability to prosecute its claim against appellants EEE and Huang, since it did not settle either matter until an agreement was reached with both parties, and, therefore, IPA’s forbearance constituted sufficient consideration to support the settlement agreement.

Judgment affirmed.

Costs to be paid by appellants.


author: Lowe, J.,

text:
    CARLA SUE CHANCE v. STATE OF MARYLAND
    [No. 1114,
    September Term, 1979.]

      Decided May 9, 1980.

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

      Patricia A. Logan, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City,
      and Steven Sacks, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Carla Sue Chance was convicted in the Criminal Court of Baltimore of murdering her erstwhile paramour but the case was not tried for twenty-one months and four days from her arrest. She has raised six assignments of error, but because we are convinced that she was denied a speedy trial, it will be unnecessary to address the other five. We have analyzed the delay pursuant to the admonition of Barker v. Wingo, 407 U.S. 514 (1972), and find that the State was responsible at least for twelve months of the delay, the defendant was responsible at most for two months, and the balance of something over seven months fall under a no-fault category being either neutral or possibly attributable to both State and appellant. See Nocera v. State, 36 Md. App. 317, 322-323 (1977), cert. denied, 281 Md. 741, 742, 744 (1977). In light of the recent rule (Md. Rule 746) and rulings (State v. Hicks, 285 Md. 310 (1979)) of the Court of Appeals, it is apparent that an unjustified delay in excess of six months is no longer tolerable. But see Wilson v. State, 44 Md. App. 1, 17-18 (1979). Having erred, if at all, on the side of neutrality in our balancing process, we find that a year in excess of time admittedly adequate for "orderly procedure” is too much.

The time periods will be considered in seven parts:

1. 7/6/76 (arrest) to 11/3/76 (continuance) — 3 months 27 days.

Reason — orderly procedure conceded. Epps v. State, 276 Md. 96, 112 (1975).

Neutral

2. 11/3/76 to 3/14/77 — 4 months 11 days State justification

a. Docket entry shows "no court available” — but see Epps v. State, supra at 114-116.

b. State contends delay necessary to investigate defense counsel for alleged subornation, but see Jones v. State, 279 Md. 1, 9-10 (1976), cert. denied, 431 U.S. 915 (1977).

c. Appellant rearrested on separate charge but released same day. No justification.

Charged to State

3. 3/15/77 to 5/16/77 — 2 months 1 day State justification

Absent police witness (for medical reasons), would have been forgiveable, Nocera v. State, 36 Md. App. at 323; however, because witness ultimately was never called and the delay was coincidental while this case was still subject to the investigation of the defense attorney, the delay is not justified.

Charged to State

4. 5/16/77 to 9/14/77 — 4 months (less 1 day) State justification

Defense filed insanity plea after suicide attempt. Case postponed to permit psychiatric evaluation at the Springfield Hospital Center. The first 2 months within which a report must be submitted by the State, Md. Code, Art. 59, § 26 (a) is "neutral and reasonable”. State v. Statchuk, 38 Md. App. 175, 183 (1977), cert. denied, 282 Md. 739 (1978).

The following 2 months are unexplained and chargeable to the State which is responsible for the delay in reporting as well as for bringing defendant to trial. See Smith v. State, 276 Md. 521, 529 (1976).

Charged to State — 2 months

Neutral — 2 months

5. 9/14/77 to 11/29/77 — 2 months 15 days State justification

Jewish holiday for both counsel and the judge. That would excuse one day; however, it should have been foreseen by the court administrator. There is no justification offered for the remaining 2 and 1/2 months.

Charged to State

6. 11/29/77 to 3/3/78 — 3 months 4 days State justification

Joint postponement request. Absence of both State and defense witnesses.

Charged to Neutral

7. 3/3/78 to 4/10/78 — 1 month 6 days State justification

Two witnesses (police officers) unavailable. One was recuperating at home from an accident, the other was attending a police school. Neither excuse was justifiable absent a showing that the police officer recuperating was too ill to attend. Court cases on the other hand come before police seminars.

Charged to State

In no instance but one did the defense consent to the postponements or to their length and several times objected to the delays. On at least three occasions the record shows express objections. Such objections are in themselves assertions for a speedy trial, Nocera, supra, and while not formal assertions by motion, are something more than acquiescence to the inevitable. Appellant is not saddled with the heavy burden of failing to assert altogether, Barker v. Wingo, supra at 532, but neither did she add but little weight to her cause.

Although no specific prejudices were pointed to, appellant testified to her state of mind brought on by anticipation indicating intensely enhanced, presumed prejudices such as anxiety, etc. So much was appellant affected that she claimed, without contradiction, that her suicidal attempt stemmed from the delays working on her known emotional instability. While it is hard to believe that delay was the sole cause of the emotional collapse, we cannot disregard its effect altogether. This is so especially in light of the results of her mental examination, the report of which was brought to us by motion to supplement the record which we granted. That report, submitted to the court on June 3, 1977, urged expedition in the proceedings to aid her condition of anxiety and depression.

"The Forensic Team recommended out-patient therapy to help her to work through her anxiety and depression and other underlying difficulties which she might have on an out-patient basis. It was also recommended that she have a speedy trial which might help her to know where she stands rather than kept waiting which might add to her overall tenseness.”

Despite this admonition from its own medical advisors, the State did not get around to trying appellant for ten more months.

The prejudice then is something more "than the presumed prejudice”, Smith v. State, supra, but falls short of ascertainable specificity although appellant’s contention that the delays brought on the temporary loss of one of her witnesses, compelling her acquiescence to one of the continuances, has a decided ring of plausibility, and we are to be the judges of that. Walker v. State, 12 Md. App. 684, 694 (1971).

The determining factor in our analysis, however, is the length of delay, the excuses therefor and the lack of justification offered by the State. The gradual tightening by the Court of Appeals of tolerable limits has culminated in the enacting of Md. Rule 746 which establishes a six month maximum as the time within which a trial should be had. While that period is not mandatorily applicable here, see Hicks, supra, it is certainly a light beam from which we cannot turn, indicating the path we are expected to follow. The unexcused period of one year beyond the six months that even the Legislature recognizes as a maximum, Md. Code, Art. 27, § 591, is far too much to overlook. Wilson v. State, supra. After all, the State in whatever form, prosecutor, court administrator, mental health examiner or judge, is responsible for expedition in bringing an accused to trial speedily, cf. Smith, supra at 529. Even when the weight of delay is neutralized by circumstance or explanation, the State is not excused from bringing it promptly to trial. Any delays exceeding the permissible period of orderly trial preparation must not only be explained by the State, they must be justified.

When the continuances are requested, e.g., recuperating or ill witnesses, school attendance, religious holidays and even examinations of the accused, the administrative judge must carefully appraise not only the cause (such as illness, etc.) but the degree thereof in order to justify the extraordinary cause for which a continuance may be granted. Md. Code, Art. 27, § 591; Md. Rule 746. If the cause for a continuance was not "extraordinary” according to our constitutionally mandated independent review of the record, the ensuing delay will not be justified, even if explained. For purposes of speedy trial reviews, the State cannot rely entirely upon the fact that a continuance was granted by a judge to excuse the delay thereby caused. And even if the cause for continuance is extraordinary, the full period until the new trial date must then be justified as well.

More importantly, the administrative judge (as well as the prosecutor) is administratively responsible for seeing that a continuance, even when justified in purpose, is not extended unnecessarily. (E.g., two and a half months for a religious holiday.) There seems no coordination here or in most instances between the purpose for, and the period of, postponements. If the periods are held to a minimum for the purpose granted, even when court-wise defendants are manipulating the system, prompt reassignment will frustrate their purpose by holding their feet to the fire.

With dismissal as the sanction for dalliance, the State’s casual efforts in reassigning trials must become intense — prosecutorially, judicially and clerically — lest despite sometime convictions, the guilty go unpunished.

Judgement reversed.

Costs not to be reallocated pursuant to Maryland Rule 1082 f.