text:
    GUYNETH EIGENBRODE v. RALPH F. EIGENBRODE
    [No. 825,
    September Term, 1976.]

      Decided June 15, 1977.

      The cause was argued before Thompson, Davidson and Moore, JJ.

      Russell Rowell, with whom was Arthur M. Wagman on the brief, for appellant.

      Steny H. Hoyer, with whom were Hoyer & Fannon on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Guyneth Eigenbrode appeals from that portion of an order of the Circuit Court for Prince George’s County which denied her motion to cite the appellee, Ralph F. Eigenbrode, for contempt of court for failure to make support payments. The question raised on this appeal is whether the elimination of an alimony provision from the parties’ divorce decree by a Nevada Court, which had previously granted the decree, precluded the Maryland trial court from citing the appellee for contempt for default in his support obligation under a separation agreement executed in Maryland, prior to the Nevada decree.

On July 24, 1970, the two parties entered into a voluntary separation agreement whereby the appellee agreed to pay $275 per month as alimony. This agreement was incorporated into a decree of divorce in Nevada on July 30, 1970. It was expressly provided in the agreement that its terms would be embodied in the decree and the agreement would survive any judgment or decree. Both parties personally appeared in the Nevada proceedings. Subsequent to this, the appellee initiated an action in Maryland to have the support payments reduced. In Eigenbrode v. Eigenbrode, 19 Md. App. 597, 313 A. 2d 569 (1974), this Court held that the support provision in the separation agreement did not constitute technical alimony; therefore, the chancellor was not empowered to modify it„ In response to this, the Circuit Court for Prince George’s County entered an order that the appellee make support payments pursuant to the agreement. The appellee then petitioned the Second Judicial Court of Nevada for a modification of the divorce decree and that court eliminated its prior alimony award, except as to past installments.

In an attempt to collect alleged arrearages in the support payments, the appellant filed in the Circuit Court for Prince George’s County, Maryland, the contempt motion now under consideration. The court ordered the appellee to pay within thirty days $4,868.65, the amount owed to the appellant pursuant to the divorce decree which had accrued prior to the striking of the alimony award. It stated in its oral opinion that the power to order payment was derived from the divorce decree and not the contract; therefore, any contemptuous conduct ended when the alimony provision of the decree was terminated. The court declined to rule on any contractual obligation.

Md. Code, Art. 16, § 28 provides that an agreement between husband and wife respecting support is valid, binding, and enforceable to every intent and purpose. It is clear that equity courts are empowered to recognize and enforce separation and property settlements. Reichhart v. Brent, 247 Md. 66, 71, 230 A. 2d 326 (1967), Jackson v. Jackson, 14 Md. App. 263, 268, 286 A. 2d 778 (1972). Support agreements not providing for technical alimony approved by a decree of the court, signed prior to 1950, could be enforced only by recourse to sequestration, execution, and attachment. Md. Rule 685, Reichhart v. Brent, supra, “By amendment in 1950 of Section 38 of Article III of the Maryland Constitution payments for support provided in an agreement approved by a decree of court are, along with alimony, defined as not constituting a debt within the constitutional prohibition against imprisonment for debt.” Simpson v. Simpson, 18 Md. App. 626, 629, n. 1a, 308 A. 2d 410 (1973). Contempt proceedings, therefore, are now an appropriate means for enforcing the support payments, after the agreement has been approved by a decree. Speckler v. Speckler, 256 Md. 635, 261 A. 2d 466 (1970).

It has been established that an equity court can enforce a decree of another State, both as to alimony accrued and to accrue, and may use for its enforcement the same equitable remedies and sanctions it could use to enforce a decree it had duly entered in the first instance. McCabe v. McCabe, 210 Md. 308, 318, 123 A. 2d 447 (1956). The incorporation of a separation agreement in a decree of divorce does not invalidate the agreement and does not preclude an action ex contractu on the agreement. Coffman v. Hayes, 259 Md. 708, 270 A. 2d 808 (1970). In the case at bar the original divorce decree issued by the Nevada Court both approved and recognized the validity of the support provisions of the separation agreement when it incorporated them. Subsequent to this, the appellant could have sought judicial enforcement in Maryland.

We now look to the effect of the elimination of the alimony by the Nevada Court when it modified its decree. The absence of a support provision in a divorce decree will not necessarily invalidate a support provision under a separation agreement. In Shacter v. Shacter, 251 Md. 304, 247 A. 2d 268 (1968), the Court of Appeals, quoting from 1 Nelson on Divorce, Chapter 13, § 13.54 (2d. ed. 1945) stated the general rule to be that:

“A support or property agreement is not invalid nor unenforceable merely because it is not embodied in the divorce decree, if not in conflict with such decree. If the divorce decree does not provide for alimony, it does not terminate liability of the husband to make the payments provided for by a separation agreement. A support or property agreement is not affected by the subsequent decree of divorce, if such settlement is neither incorporated in the decree, disapproved by the decree, nor superseded by provisions of the decree.” Id. at 307-308.

The effect of the striking of the alimony by the Nevada Court from its decree would not «affect the support provisions under the separation agreement unless the provisions are disapproved by the decree or superseded by the provisions of the decree. In order to determine whether the agreement was superseded by the decree we must look to the intent of the parties and the court. The agreement expressly provided that its terms would be embodied in the decree and that the agreement would survive any judgment or decree. Where a separation agreement is plain as to its meaning, there is no room for construction and it must be presumed that the parties meant what they expressed. Pumphrey v. Pumphrey, 11 Md. App. 287, 273 A. 2d 637 (1971). If the Nevada Court had intended for its original decree to supersede the agreement it would have contradicted this proposition. Giving full effect to the intentions of the parties and of the Nevada Court, it is clear that the agreement was not superseded by and would survive the decree. There is no inconsistency in granting a divorce, refusing to grant alimony, but not releasing a spouse from his covenant of support. Shooter, supra at 308. We consider the modification of its decree by the Nevada Court to be a determination of its discretion whether to grant alimony or not. We find that the provisions of the agreement for the support of the appellant survive unscathed.

Contrary to the findings of the trial court, the court’s contempt power to order support payments was derived not only from the order of the Nevada Court but also from the contract, the support provisions of which also had been previously approved by the Circuit Court for Prince George’s County, after our mandate in Eigenbrode v. Eigenbrode, supra. Thus the trial court may use its powers of contempt not only to enforce the payment of arrearages under the Nevada decree but also the payment of any arrearages after the modification of that decree. The latter payments are enforced under the agreement which had been approved, prior to the Nevada modification order, by the Circuit Court for Prince George’s County.

We, of course, do not decide whether or not under the particular facts of this case the court should use its powers of contempt. We decide only that the trial judge has such power if he chooses to use it.

Order vacated.

Case remanded to Circuit Court for Prince George’s County for further proceedings in accordance with this opinion.

Appellee to pay the costs.

      . Acts 1975, Ch, 849, amended Art. 16, § 28, in regard to any agreement occurring after January 1, 1976, to allow the court to modify support provisionSi unless the agreement specifically states that it is not subject to court modification.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    WILLIAM C. GLEASON et ux. v. JACK ALAN ENTERPRISES, INC.
    [No. 1191,
    September Term, 1976.]

      Decided June 15, 1977.

      The cause was argued before Gilbert, C. J., and Mason and Liss, JJ.

      Matthew J. Kastantin for appellants.

      Edward B. Layne, Jr., with whom were Mclnerney, Layne, McCormick, Sullivan & Rice on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This case is an example of “a riddle wrapped in a mystery inside an enigma.” It arises out of an automobile accident, involving a delivery truck and a pedestrian, which occurred on June 9, 1975 in Silver Spring, Maryland, at the intersection of Fenton Street and Ellsworth Drive. William C. Gleason, the appellant, was on that date on a shopping trip to the area and was standing on the southeast corner of the intersection some four feet back from the curb waiting for the light to change so that he could cross the street, when he was struck by a driverless 1969 Chevrolet van truck owned by the appellee, Jack Alan Enterprises, Inc. Appellant claims damages for personal injuries resulting from the accident.

The evidence submitted by the appellant established that prior to striking the appellant the appellee’s truck had been parked by one of its employees on an incline at the curb facing northbound on Fenton Street at a distance of between 400 to 500 feet from the intersection. At the time the collision occurred the employee who had parked the truck was examining the floors in an office building on Fenton Street where he was about to install carpeting. The back doors of the truck were partially opened and tied together to a roll of carpeting protruding from the doors.

The police officer who investigated the accident testified that his investigation at the scene revealed that the truck had rolled backwards down the hill on Fenton Street, jumped the curb where the appellant was standing, struck the appellant and a pole, and finally stopped facing northbound in the intersection blocking traffic. The only damage to the body of the truck was to its rear end where it struck the pole. Upon checking the emergency brake, the officer found it to be fully engaged and “jammed” so that it could not be moved in either direction. The employee who had parked the truck identified himself at the scene and told the officer that he had engaged the emergency brake when parking the vehicle. The officer had no recollection as to whether his investigation disclosed that the wheels of the truck were turned into the curb nor whether the truck was left in gear when it was parked. The keys were not in the ignition. The officer did not know how long prior to the accident the truck had been parked at the curb as he did not inquire into the matter and the information was not volunteered. There was no complaint or suggestion by the appellee’s driver that the truck had been struck by any other vehicle or that anyone had tampered with the vehicle prior to the accident.

The only witnesses offered by the appellant were himself and the police officer. At the close of the appellant’s case the appellee moved for a directed verdict. The trial court granted the motion on the ground that the appellant had relied on the legal proposition that the accident was controlled by the doctrine of res ipsa loquitur and that the appellant had failed to establish that the instrumentality causing the injury was within the exclusive control of the defendant. The court directed the clerk to enter a verdict for the defendant pursuant to Rule 552 a. It is from that judgment that this appeal is taken.

The sole issue to be determined is whether the trial court erred in granting appellee’s motion for a directed verdict at the conclusion of the appellant’s case.

In ruling on a motion for a directed verdict, the trial court was required to consider all of the evidence in a light most favorable to the appellant together with all reasonable and legitimate inferences which could have been deduced therefrom. The appellee was not entitled to a directed verdict in its favor unless the facts and circumstances were such as to permit only one inference with regard to the issue presented. Smack v. Johnson, 238 Md. 35, 207 A. 2d 511 (1965). If there was legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then the lower court invaded the province of the jury by granting the directed verdict. Baulsir v. Sugar, 266 Md. 390, 293 A. 2d 253 (1972); Katz v. Holsinger, 264 Md. 307, 286 A. 2d 115 (1972); Plitt v. Greenberg, 242 Md. 359, 219 A. 2d 237 (1966); Keene v. Arlan’s Dept. Store, 35 Md. App. 250, 370 A. 2d 124(1977).

The appellant being unable to establish the cause responsible for the unattended truck’s rolling down the incline elected to rely on the doctrine of res ipsa loquitur. The characteristics of res ipsa loquitur and the reason for the rule were cited by the Court of Appeals in Potts v. Armour & Co., 183 Md. 483, 39 A. 2d 552 (1944):

“Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. The justice of the rule permitting proof of negligence by circumstantial evidence is found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident. The rule is not applied by the courts except where the facts and the demands of justice make its application essential, depending upon the facts and circumstances in each particular case.”

In order to invoke the doctrine three concurring circumstances must be shown by the evidence: (1) it must appear that the accident was of such a nature that it would not ordinarily occur without the defendant’s negligence; (2) the plaintiff must demonstrate that the apparatus or instrument which caused the injury was in the defendant’s exclusive control; and (3) that no action on the part of the plaintiff or a third party or other intervening force might just as well have caused the injury. Blankenship v. Wagner, 261 Md. 37, 273 A. 2d 412 (1971); Leikach v. Royal Crown, 261 Md. 541, 276 A. 2d 81 (1971).

The trial court reached the conclusion that the appellant had offered sufficient evidence to generate a jury question as to the propositions stated in the first and third criteria above stated. No contention to the contrary has been made by the appellee in this appeal.

The trial judge, however, concluded that the appellant had failed to offer sufficient evidence to require the case to be submitted to the jury because of a lack of proof that the instrumentality causing the injury was within the exclusive control of the appellee. He reached that conclusion on the ground that the evidence:

“in no way establishes when the truck was parked on Fenton Street or how long it remained unattended before it slipped backwards down Fenton Street to the intersection of Ellsworth Drive; and this is not a case of evaluating whether a time interval of ten minutes or two minutes or any other space of time establishes lack of exclusive control. There is simply a complete lack of evidence on the point.”

2 Harper and James, The Law of Torts § 19.7 (1956), in discussing the principle of “exclusive control” says:

“The requirement as it is generally applied is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it. That does not mean that the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at the defendant’s door.”

Comment e, § 328D of the Restatement (Second) of Torts, as quoted in Leikach v. Royal Crown, supra, at 549-50, 276 A. 2d at 85, states:

“The plaintiffs burden of proof (see § 328 A) requires him to produce evidence which will permit the conclusion that it is more likely than not that his injuries were caused by the defendant’s negligence, Where the probabilities are at best evenly divided between negligence and its absence, it becomes the duty of the court to direct the jury that there is no sufficient proof. The plaintiff need not, however, conclusively exclude all other possible explanations, and so prove his caSe beyond a reasonable doubt. Such proof is not required in civil actions, in contrast to criminal cases. It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation. This conclusion is not for the court to draw, or to refuse to draw, in any case where either conclusion is reasonable; and even though the court would not itself find negligence, it must still leave the question to the jury if reasonable men might do so.”

Comment g to the same Section adds:

“The plaintiff may sustain this burden of proof [by] * * * a showing that the defendant is responsible for all reasonably probable causes to which the event can be attributed. Usually this is done by showing that a specific instrumentality which has caused the event, or all reasonably probable causes, were under the exclusive control of the defendant. Thus the responsibility of the defendant is proved by eliminating that of any other person.
It is not, however, necessary to the inference that the defendant have such exclusive control; and exclusive control is merely one way of proving his responsibility.”

The appellee urges that the case of Johnson v. Jackson, 245 Md. 589, 226 A. 2d 883 (1966), is dispositive of this case. It calls our attention to the comments of Judge Finan, speaking for the Court of Appeals:

“To paraphrase the comments of' the trial judge, he thought that in viewing all of the evidence produced by the appellant, it was unreasonable to assume that the parked vehicle, after having remained stationary on an incline for a period of from five to ten minutes, would not of its own accord have drifted downhill, unless an independent act of some third party had intervened, starting it in motion.
His comments also are pregnant with the thought that since the vehicle had remained stationary on the incline from five to ten minutes, there was no reasonable inference to be drawn from the facts indicating that the appellee Billie Jackson had been negligent in the manner in which she parked the vehicle.
The annotation in 16 A.L.R.2d. 979 titled ‘Liability for injury or damage caused by the accidental starting up of parked motor vehicle’ § 6 subtitled ‘Time elapsing between parking and starting up’ enumerates examples covering the gamut of possibilities, commencing with the situation where the vehicle starts moving almost immediately after it is parked to an interval of several hours. Without elaborating in detail on the examples cited therein, it suffices to say that the length of time which the defendant’s parked car remains in place before starting has been held to be a significant factor in determining whether or not defendant was negligent in parking the vehicle.” Id. at 593-94, 226 A. 2d at 885.

Johnson v. Jackson is distinguishable, however, from the case sub judice. In that case the appellant was the only witness produced at trial although the plaintiff had listed six eyewitnesses in response to appellee’s request for answers to interrogatories. In his own testimony the appellant stated that he heard someone “holler, ‘Daddy’ just as I was hit.” That testimony was indicative of the fact that within the knowledge of the appellant, someone other th,an the appellant was present at or near the scene of the accident when it occurred. As a trial tactic, the appellant chose not to introduce evidence which was available to him. The Court held that under those circumstances it could not find the rationale for application of the res ipsa loquitur doctrine had been met, i.e., that the facts surrounding the accident were more within the knowledge of the defendant than within the knowledge of the plaintiff. In Johnson, the Court held that, under the facts and circumstances as they existed, the case fell within the rule “that the doctrine will not apply when it appears that the injury may have been caused by the independent act of a third person or intervening cause. ‘. . . in such a situation the plaintiff is not permitted to recover until he excludes the independent neglect of the third party as the efficient and proximate cause of the injury.’ ” Id. at 593, 226 A. 2d at 885. State for Use of Parr v. Board of County Commissioners of Prince George’s County, 207 Md. 91, 113 A. 2d 397 (1955); Coastal Tank Lines v. Carroll, 205 Md. 137, 106 A. 2d 98 (1954); Frenkil v. Johnson, 175 Md. 592, 3 A. 2d 479 (1939).

In the instant case, in reaching his decision to withdraw the case from the jury the trial judge relied principally upon what he saw to be a failure of the appellant to establish how and when the truck was parked at the curb and concluded therefrom that the appellant had failed to establish that the vehicle was in the exclusive control of the appellee immediately prior to the occurrence of the accident. However, the failure to establish these facts are significant only to the extent that they make it more probable that an intervening cause rather than the negligence of the appellee was responsible for the occurrence of the accident. So far as the manner of parking the vehicle was concerned, it is obvious that access to that information should have been more available to the appellee than to the. appellant. The appellant did in fact attempt to discover the identity of the company’s driver, but an interrogatory asking for “the name, address and position of the individual who parked the vehicle in question prior to the accident...” was answered by the appellee with the statement, “Robert L. Shaw, moved, address unknown.” Neither appellant nor appellee issued a summons for the driver to appear at the trial and we think it is a fair inference that the appellant was not able to locate the driver. It would be an unreasonable burden on the appellant to require that he produce the witness where the latter’s employer no longer knew his whereabouts. Absent the driver, the appellant was unable to establish how long the truck had been parked, but the answers to interrogatories did establish that it was parked outside an office building and.that the driver who parked the truck was in the building inspecting the floors where carpet was to be installed. The officer’s testimony was that the truck doors were partially open and tied together to a roll of carpeting protruding from the doors. From these facts the jury could have reasonably inferred that the truck had been parked for only a relatively short period of time; and if the jury believed the officer’s testimony, it could have found that the absence of any damage to the truck other than that to the rear where it struck the pole effectively ruled out the possibility of a collision with another vehicle. There was no evidence that anyone had tampered with the vehicle after it was parked at the curb.

The most recent annotation of the cases discussing the factual situation in this case is found in 55 A.L.R.3d 1260 where an analysis is found of the “presumption of negligence and application of the res ipsa loquitur doctrine in action for injury and damage caused by accidental starting up of parked vehicle.” Section 6 of the annotation includes a compilation of those cases in which the lapse of time between the parking of the unattended vehicle and the breaking loose of the vehicle was one of the circumstances considered in deciding whether or not to permit an inference of negligence from the happening of the accident. The expiration of a short interval of time between the parking of a vehicle and its moving, unattended, to become involved in an accident has been held to be one of the factors which could give rise to an inference of negligence.

So, in Knippenberg v. Windemuth, 249 Md. 159, 238 A. 2d 915 (1958), res ipsa loquitur was held to be applicable where the evidence was that the defendant motorist had parked his vehicle on a relatively steep grade and within ten to fifteen seconds heard the thump of the vehicle against a house at the bottom of the incline. This holding was reached notwithstanding testimony of the motorist that he had parked his car with its wheels against the curb and had manually set the hand brake.

Conversely, in situations where the interval elapsed between parking and starting up was of a long duration, thereby increasing the likelihood of an intervening cause, that factor has been held to be one element against a conclusion of negligence. Roberts v. Ray, 45 Tenn. App. 280, 322 S.W.2d 435 (1959).

In Grosser v. Taylor, 276 Minn. 440, 150 N.W.2d 869 (1967), it was held that a lapse of three hours between the time that the operator parked a motor vehicle on a hill and the time that it collided with a person at the foot of the hill was one factor to be considered by the jury — but not sufficient ground to grant a directed verdict.

See also Price v. McDonald, 7 Cal. App.2d 77, 45 P. 2d 425 (1935), where evidence that an automobile was parked in defendant’s driveway some five or six hours before it rolled down and struck the plaintiff did not preclude the application of the doctrine of res ipsa loquitur, it being incumbent upon the person having control of the car to explain the cause of its movement.

The same conclusion was reached in Bobbitt v. Salamander, 240 Mo. App. 902, 221 S.W.2d 971 (1949), where the lapse of time from the original parking of the vehicle to the time of the accident was eleven hours, and Hill v. Thompson, 484 P. 2d 513, 55 A.L.R.3d 1254 (Okla. 1971), where it was four or more hours before the vehicle moved from its parked position.

It seems clear to us that the lapse of time between the parking of the vehicle and its unattended motion from its parked position is only one of many factual considerations which a jury may consider in determining whether the vehicle at the time of the occurrence was in the exclusive control of the defendant. The trial court, by its ruling, imposed on the appellant the obligation to produce testimony to establish the manner in which the vehicle had been parked and the time which it had remained parked before it struck the appellant. We have found no case which imposes such a burden on the injured party nor have counsel cited any such authority to us. Where, as in this case, that information is peculiarly within the knowledge of the appellee or its employees, and, therefore, much more readily ascertainable by the appellee than by the appellant, the imposition of the burden suggested by the trial court would in effect emasculate the legal significance of res ipsa loquitur and require the appellant to surrender the favorable inference which arises in those cases where the doctrine applies.

The great Roman orator stated the proposition to be “Res loquitur ipsa, judices, quae semper valet plurinum.” — Judges, the case speaks for itself, that which there is no more powerful advocacy.

If we may be forgiven, the vernacular which we think the proverbial man on the street might well use to express our ruling is as follows:

By Golly, if I’m standing on the corner minding my own business and a truck which is parked some 500 feet away comes barreling down the hill without anybody driving and knocks me tail over tincups, the owner better be prepared to explain how it happened.

Judgments reversed; remanded for new trial.

Costs to be paid by appellee.

      . The entire quotation is — “I cannot forecast to you the action of Russia. It is a riddle wrapped in a mystery inside an enigma.” Sir Winston Churchill radio broadcast [October 1, 1939],

      . The appellant’s wife is also one of the appellants because of her claim for loss of consortium. We shall treat the ease as if it were the sole appeal of William C. Gleason as the disposition of his appeal will also be dispositive of the wife’s legal position.

      . Cicero, Pro Milone, XX.


author: Lowe, J.,

text:
    LYNN A. FURMAN, formerly Lynn A. Glading v. PETER T. GLADING
    [No. 1192,
    September Term, 1976.]

      Decided June 15, 1977.

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

      Glenn M. Cooper, with whom were Ivan J. Shefferman and Shefferman, Paley & Rothman, Chartered on the brief, for appellant.

      Jeffrey N. Greenblatt, with whom were Brodsky & Greenblatt on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

In 1972 appellant Lynn A. Furman was divorced from appellee Peter T. Glading by the Circuit Court for Montgomery County, following proceedings in which the court obtained personal jurisdiction over both parties by virtue of their presence in this State. Custody of their then two-year-old daughter was awarded to Mrs. Furman, but the decree was silent as to child support. On June 17, 1976 Mrs. Furman petitioned the Circuit Court for Montgomery County to award her a reasonable sum for the child’s support and maintenance. Mr. Glading, who had become a resident of Virginia, was served in that state with the petition and rule to show cause.

Mr. Glading challenged the jurisdiction of the circuit court over his person by motion raising preliminary objection, which motion was granted by order of October 8, 1976 dismissing Mrs. Furman’s petition for child support. For reasons not revealed by the record, the court signed two additional but conflicting orders on October 22, 1976. One order denied Mrs. Furman’s motion for reconsideration of the October 8, 1976 dismissal, and the other order granted that motion to reconsider and overruled Mr. Glading’s motion raising preliminary objection. Recognizing this oversight, the court on November 8, 1976 passed an order pointing out the conflict and clarifying the situation by

1. denying Mrs. Furman’s motion for reconsideration of Mr, Glading’s motion raising preliminary objections, and
2, vacating the order of October 22, 1976 which overruled Mr. Glading’s motion raising preliminary objections,

Mrs. Furman noted an appeal on November 10, 1976.

Taking advantage of these errors, Mr. Glading moved to dismiss Mrs. Furman's appeal on the ground that she was appealing the order of October 8, 1976 beyond the 80 days permitted by Md. Rule 1012 a. We summarily denied the motion to dismiss.

Still seeking what advantage may be left to him arising from the chancellor’s oversight, Mr. Glading now contends that this appeal may not reach the jurisdictional issue at the basis of the October 8, 1976 order dismissing Mrs. Furman’s petition, but that appellant must address herself solely to the.denial of her motion to reconsider that order. The reason for his contention is obvious. The denial of a motion to reconsider is an exercise of the chancellor’s discretion. To emphasize the severity of the burden he imposes upon her, appellee quotes from Zimmer v. Miller, 64 Md. 296, 299:

“There is, perhaps, no principle more firmly established by numerous decisions in this State than that there can be no appeal from the determination by a Court of equity of questions addressed to its sound discretion.”,

and from Carlile v. Two Guys, 264 Md. 475, 477-478:

“There is probably no principle of law that rests on more decisions of this Court than the concept that a trial judge’s granting or refusing a new trial — fully, partially, conditionally, or otherwise — is not reviewable on appeal except under the most extraordinary or compelling circumstances. This is true even though the trial judge’s decision is based on mistake or erroneous conclusions of law or fact. Our adherence to this rule is unwavering and we do not find any extraordinary or compelling circumstances in the present case which would permit a review. In fact, this Court, in its long history, has never found such circumstances to exist, (emphasis added).”

Even if we consider the language of Zimmer somewhat an overstatement of the burden, and note that Carlile dealt with a motion for a new trial rather than a motion to reconsider, the test appellant must meet is a severe one even in the eyes of a more contemporary Court of Appeals which is not prone to overstatement. The granting or denial of a motion to reconsider an unenrolled judgment is within the discretion of the trial court, Int'l-Indus. Developers v. Berg, 269 Md. 250, 251, and while an appeal will lie from that determination, the lower court’s decision will not be reversed unless it was an abuse of discretion. J. B. Corporation v. Fowler, 258 Md. 432.

Because the confusion (which resulted in the noting of the appeal two days beyond the original appeal period) was caused by the error of a court of conscience, it is as inconceivable that appellant’s chance of success upon appeal should be reduced, as permitting such an error to preclude the right of appeal at all. We hold, therefore, that upon overruling appellee’s motion raising preliminary objection and granting appellant’s motion to reconsider on October 22, 1976, the court effectively struck out its order of October 8, 1976 dismissing appellant’s petition after twelve days of appeal time had run. The dismissal order was no longer viable, and was reborn on November 8, 1976 when the October 22, 1976 order was vacated. The appeal time accordingly began to run again from November 8, 1976 when the court corrected its error. Hess v. Chalmers, 27 Md. App. 284, 288. The appeal was timely as to both orders.

The issue upon appeal was clearly set forth by the chancellor’s ruling following the hearing on October 7, 1976:

“THE COURT: All right. I think probably the language in Renwick [v. Renwick], 24 Md. App. 277, at page 285 is controlling, where Judge Lowe said, ‘We further note that alimony and support are manifestations of a husband’s common law liability to provide for his wife and children respectively. It follows then that alimony and support are actions in personam and, as such, require that a judgment against a non-resident defendant based only on constructive service be void. The traditional view, and the current Maryland rule, McSherry v. McSherry, 113 Md. 395, is that a non-resident defendant must be served within the territorial jurisdiction of the court, or appear personally or through counsel, in order for in personam jurisdiction to obtain.’
Inasmuch ás he has not been served within the jurisdiction, I must conclude that the defendant’s motion raising preliminary objections is well taken.”

That ruling was correct as far as it went; however, there was an added element which the court claimed to have considered but which it did not address.

“MR. SHEFFERMAN [appellant’s attorney]: May I say one other thing? Does the Court realize he [appellee] was served within this jurisdiction when the [divorce and custody] case started, this is a case of continuing jurisdiction?
THE COURT: Yes, sir.”

We find that the chancellor erred. The case he relied upon, Renwick v. Renwick, supra, did not have before it the question of continuing jurisdiction following personal service within this jurisdiction. We hold that the parties, once having been subject to the court’s jurisdiction for purposes of determining custody and child support under Md. Code, Art. 16, § 66 (now in pertinent part Md. Code, Cts. Art., § 3-602), remained subject to such jurisdiction for the purpose of modifying any decree or order which affected the child, Berlin v. Berlin, 239 Md, 52, 57.

Appellee contends that in adopting the continuing jurisdiction theory (as applied to Md. Code, Art. 16, § 66), the Court of Appeals in Berlin did so within the restrictions comprehended by McSherry v. McSherry, 113 Md. 395. While recognizing the established law that alimony and support decrees were in personam, and that a non-resident must be served within the territorial jurisdiction of the court in order for in personam jurisdiction to obtain, McSherry held that prior jurisdiction obtained by proper personal service could continue where the court reserved to itself in the decree, by agreement of counsel, the future determination of the amount of alimony and child support. Id. at 401.

Appellee further contends that because the Court of Appeals, by Md. Rule S72 c. 2., requires a reservation of jurisdiction where a divorce a vinculo follows an a mensa decree before in personam relief may be granted, the enaction of this rule (although restricted to converting an a mensa decree into an a vinculo decree by supplemental bill) somehow revives and enlarges the McSherry reservation principle. We read nothing into Rule S72 c. 2. beyond its expressly stated limitations.

Nor do we agree that Berlin was written within the strictures of McSherry. McSherry was decided June 22, 1910, prior to the enactment of Md. Code, Art. 16, § 66 by Ch. 573 of Laws 1920, and purported to answer only the single question before it without having to go beyond its precise holding. Berlin, on the other hand, was written in express contemplation of Md. Code, Art. 16, § 66 and stated that the adoption of the continuing jurisdiction rule was founded upon the theory of subsequent modification after custodial jurisdiction attached, whether that modification was authorized by the decree itself pursuant to McSherry or under the provisions of a statute:

“The majority of courts in other states have adopted the continuing jurisdiction rule. We shall do likewise. The theory of this rule is that when a custody decree is subject to subsequent modification for any reason (either under the provisions of a statute or the terms of the decree itself), the jurisdiction of the court in the awarding state should remain notwithstanding the removal of the child to another state.” Berlin v. Berlin, supra, 239 Md. at 57.

Whether that language is viewed as part of the holding of Berlin or as dicta, its breadth and clarity provide the direction from the Court of Appeals in sufficiently strong language that we are compelled to follow it.

Md. Code, Art. 16, § 66, which gives equity courts the power to modify a decree with respect to custody and support of children, was the statute to which Berlin referred, and it is relied upon here by appellant. It read in pertinent part on December 21, 1972, when the lower court, having jurisdiction over both parties, granted custody to appellant in the divorce decree, as follows:

“The several equity courts of this State shall have original jurisdiction in all cases relating to the custody ... of... children, and ... the equity court may direct who shall have the custody or guardianship of such child or children and who shall be charged with his, her or their support and maintenance, pendente lite or permanently, and may, from time to time thereafter annul, vary or modify its decree or order in relation to such child or children ....”

It would be illogical to hold that the Court of Appeals, in construing that statute to provide continuing jurisdiction, meant it to permit subsequent modification only if the subject matter of the petition (a child of whom custody is sought) was out of the jurisdiction, but not if the person to be charged with the child’s support is out of the jurisdiction. Not only would this dichotomy divest of meaning the Court’s language explaining the theory of the continuing jurisdiction rule

“ ... that when a custody decree is subject to subsequent modification for any reason ... the jurisdiction ... should remain ...”,

but it would give the power to the court to modify in its decree as to “who shall be charged with . .. support and maintenance”, but unless that individual has remained in the jurisdiction, no power to enforce it. In construing statutes we are admonished not to arrive at absurd results, Fairchild v. Maritime Air Serv., 274 Md. 181, 186. Clearly the Court which so admonished would not have done so. Viewed thus, it is apparent that Md. Code, Art. 16, § 66 gives continuing personal as well as subject matter jurisdiction.

This holding seems so obvious it is but to “[add] water to the sea or [bring] a fagot to bright-burning Troy” that we buttress it by further distinguishing the McSherry “reserved power” argument. But we cannot overlook indicia of legislative intent. Not only must we assume that when enacting a jurisdictional statute dealing with custody and support decrees and their subsequent modification, the Legislature was cognizant of a father’s common law liability for support of his child, cf Renwick, supra, 24 Md. App. at 285, we further note that that body reenforced the common law concept after it adopted Md. Code, Art. 16, § 66 by statutorily charging both parents with the support and care of their children, Md. Code, Art. 72A, §1. If we held with appellee that the Legislature untended to give equity courts continuing jurisdiction over only the subject matter, we would be saying in effect that the decree may be modified as to support for the child taken from the jurisdiction, but may not be modified against the parent who absconds from the jurisdiction. We do not conceive either the Legislature through Art. 16, § 66, or the Court of Appeals in Berlin, or by enacting Rule S72 c., to have thus limited the State’s uosture as parens patriae concerning its children’s welfare. Taylor v. Taylor, 246 Md. 616, 621.

Qur interpretation follows the view of the Restatement, Conflict of Laws 2d, § 26:

“§ 26. Continuance of Jurisdiction
If a state obtains judicial jurisdiction over a party to an action, the jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. Reasonable notice and reasonable opportunity to be heard must be given the party at each new step in the proceeding.”

See also Comment a. and Illustration 1 of § 26. It is also supported by the reasoning of other states with statutes similar to Art. 16, § 66. See, e.g., Sowell v. Sowell, 493 S.W.2d 86 (Tenn.), following Darty v. Darty, 232 S.W.2d 59 (Tenn.); Sewell v. Trimble, 172 F. 2d 27 (D.C.), following Elkins v. Elkins, 299 F. 690 (D.C.); Weddington v. Weddington, 92 S.E.2d 71 (N.C.); Washington v. Washington, 329 P. 2d 115 (Calif.); see generally 71 A.L.R.2d 1370, 1400, et seq.

We, therefore, reverse the chancellor’s judgment and vacate the order dated October 8, 1976 dismissing the petition and the order dated November 8, 1976 which revitalized the prior order.

Judgment reversed.

Case remanded for further proceedings.

Cost to be paid by appellee.

      . But see Howard v. Gish, 36 Md. App. (1977) pointing out possible limitations placed upon the Berlin continuing jurisdiction rule by Maryland’s adoption of the Uniform Child Custody Jurisdiction Act, Ch. 265, Laws of 1975, now codified in Md. Code, Art. 16, § 184-207.

      . Appellee contends that because Md. Code, Cts. Art., § 3-602 (where the essence of Art. 16; § 66 is now found following revision by the Code Commission) is found in Title 3 of the Cts. Art., which deals generally with subject matter jurisdiction, rather than in Title 6 of the Cts. Art., which deals generally with personal jurisdiction, the Legislature intended § 3-602 to apply solely to subject matter jurisdiction. While we do not find that argument persuasive, we need not respond to it inasmuch as the jurisdiction which we hold to have been continuing attached under Md. Code, Art. 16 § 66.


author: Gilbert, C. J.,

text:
    COLONIAL CARPETS, INC. t/a The Carpet Barn v. CARPET FAIR, INC. t/a hill’s Discount Carpet Barn
    [No. 1196,
    September Term, 1976.]

      Decided June 15, 1977.

      The cause was' argued before Gilbert, C. J., and Moylan and Melvin, JJ.

      Bernard L. Sweeney, with whom were Walter D. Ames and Watson, Cole, Grindle & Watson on the brief, for appellant/cross-appellee.

      Shale D. Stiller, with whom were Peter F. Axelrod, Jonathan Eisenberg and Frank, Bernstein, Conaway & Goldman on the brief, for appellee/cross-appellant.
   Gilbert, C. J.,

delivered the opinion of the Court.

The practice of law may be poetically likened to sailing a ship. Constitutions, case law, and legislative enactments are to the lawyer what charts, buoys, and beacons are to the sailor. The compass, however, is generally agreed to be the most important navigational aid on ship. The Maryland Rules of Procedure are the lawyer’s compass and serve to help him steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself with the Rules of Procedure before he files and tries a case.

Notwithstanding the importuning of the Court of Appeals and this Court that the rules of procedure are not to be considered as mere guides or Heloise’s helpful hints to the practice of law but rather precise rubrics that are to be read and followed, admonitions go unheeded by some .practitioners. When that occurs, we are left to wonder whether we are engaged in an endless struggle, just as waves beat upon the shore, fall back and then repeat over and over ad infinitum,

This appeal arises because trial counsel for the appellant, demonstrating a paucity of knowledge of Maryland procedure, frustrated the appellee, and so jumbled the orderly process that even the trial judge’s compass went awry.

The basis of the appeal is an order of the Circuit Court for Prince George’s County awarding appellee’s counsel a fee of $4500 for services rendered subsequent to the voluntary dismissal of appellant’s suit against the appellee for an injunction. Appellee has cross-appealed on the ground that the amount of the fee awarded its counsel is parsimonious. Additionally, the appellee has moved to dismiss the appellant’s appeal on the ground that there was no compliance with Md. Rule 1028. For reasons that we shall hereafter discuss, we reverse the order of the circuit court and remand for further proceedings in accordance with this opinion. It follows that we deny the motion to dismiss.

The record discloses that this litigation, permeated with the ostensible acrimony of opposing counsel, commenced on December 4, 1974, with the filing of a Petition for Injunction by Colonial Carpets, Inc., t/a The Carpet Barn (Colonial) against Carpet Fair, Inc., t/a Bill’s Discount Carpet Barn (Fair). The petition alleged that Fair had infringed upon Colonial’s Maryland registered trade mark and name. It prayed that Fair be enjoined from so doing and that Colonial be “assessed” money damage for the “loss of profits” it had sustained.

The petition was promptly met with a demurrer which, reduced to its common denominator, averred that the petition failed to state a cause of action. The circuit court agreed with Pair’s position and sustained the demurrer with leave to amend.

On March 7, 1975, the amended petition was filed. It took form in two counts. One reasserted the infringement by Pair upon Colonial's registered trade mark and name. The second charged Pair with “deceptive and misleading” advertising through the use of the name “Carpet Barn” and unfair competition. Colonial requested that an injunction issue against the use of the trade name “Carpet Barn” by Pair and that there be an accounting by Pair of its “profits realized while operating under the name ‘Bill’s Discount Carpet Barn.’ ” Pair answered within the prescribed time and denied any infringement upon Colonial’s trade name or mark.

For the ensuing time, March 26, 1975 to February 2, 1976, the parties engaged in legalistic sparring relative to discovery. During the discovery period, Colonial’s counsel died and new counsel was substituted. The unmistakable bitterness of counsel toward each other, rather than diminishing, seemingly intensified.

Colonial sought a pretrial conference, Fair amended its answer to the petition by substantially embellishing it, and the case was set for trial on February 2, 1976.

At the outset of the trial, Colonial’s counsel informed the judge that Colonial desired Pair to produce voluntarily alleged managers of three of Fair’s stores, and a fourth person who was the president of the agency that handled Pair’s advertising. Pair refused to comply with the request. Colonial then requested permission to put into evidence the depositions of the witnesses that were not present. Fair objected to that procedure because the witnesses were not parties to the suit, and no summons had been issued for their attendance. Md. Rule 413 a 3.

The trial judge suggested that Colonial’s lawyer issue an order to the clerk for the summoning of three of the witnesses with the idea that the sheriff could telephone the persons to be subpoenaed and so inform them, requesting their appearance.

The trial of the case started with the calling by Colonial of its president as the first witness. The witness was still undergoing direct examination when the court recessed for lunch. After the luncheon recess, Colonial’s lawyer advised the court that he had been told by the sheriff’s office that all the requested witnesses were located outside of Prince George’s County and that the sheriff was without jurisdiction to serve summons on them. Colonial, through its counsel, told the judge that, “it now appears highly unlikely that any of these four witnesses [] will be subject to the service and will appear as witnesses today. I feel, therefore, that .. . [Colonial’s] case will be seriously jeopardized, and that is a prime basis for our motion for a non-suit without prejudice.”

Over the strenuous objection of the attorney for Fair, the judge granted the motion. In so doing, however, he read from Md. Rule 541 Pertaining to voluntary dismissal of an action at law and Md. Rule 582 which is concerned with similar dismissals in equity proceedings. The judge then said:

“So, I’m going to grant your motion without prejudice. However, I’m going — and it can’t be determined until the matter is finally resolved in your next jurisdiction where you file it, but I’m going to leave open the question of attorney’s fees to the defendant in this case which may be allowed to be recoverable because we don’t know how much of this that has transpired to date can be used in a new proceeding. If it is used in a new proceeding, well and good. If not, then I think the plaintiff should be held accountable therefor.”

A written order followed twenty-three days later. It provided in pertinent part:

“ORDERED, that this Court is reserving the possibility of the award of attorney’s fees to counsel for the defendant [Fair] until such time as the subject matter of the litigation is finally determined.”

By so ordering, the trial judge cleared the ring for the main event which followed on April 7, 1976, when Fair’s attorney filed in the circuit court a “Petition for Award of Counsel Fees” in the amount of sixteen thousand dollars ($16,000). The petition, bottomed on Md. Rule 604, recited the happenings up to and including the date of the aborted trial, February 2, 1976. Additionally, the petition contained the number of hours that Fair’s counsel had devoted to the matter through February 2, 1976 and thereafter in the subsequent federal claim brought by Colonial against Fair.

The record shows that four (4) days after the voluntary dismissal in the Circuit Court for Prince George’s County, Colonial instituted in the United States District Court for the Eastern Virginia District, Alexandria Division, a “Complaint for False Designation of Origin, Trademark Infringement and Unfair Competition.” The suit embraced, in part, the infringement of Colonial’s trademark which had been the subject of the Prince George’s County litigation.

Two months later, April 6, 1976, a settlement was reached in the federal suit. By the terms thereof, Fair agreed to cease the use of the offending terms, “Bill’s Carpet Barn” and “Bill’s Discount Carpet Barn.” A notice of dismissal “without prejudice” was subsequently filed in federal court by Colonial on April 12, 1976.

A hearing on the petition for counsel fees was held on August 10, 1976, before the original trial judge. The judge took the matter under advisement and rendered his. “Opinion and Order of Court” on October 15, 1976. Both sides appealed. Colonial asserts that the trial court was wrong to award any fee to Fair’s lawyers; Fair asserts the trial judge erred in not awarding fees to cover the labors of counsel from the conception, by way of suit on December 4, 1974, to the abortion, by voluntary dismissal on February 2, 1976.

Although, as we have previously pointed out, Md. Rule 541 b, permits voluntary dismissal, “upon such terms and conditions as the court deems proper,” that authority has not been held to embrace the award of counsel fees. Moreover, Rule 541 is limited in its scope to actions at law, Md. Rule 1 a, and as such would in any event have no application to the case sub judice which is an equity proceeding brought for the purpose of obtaining an injunction and accounting.

A semblance of Md. Rule 541 may be found in Md. Rule 582, which is applicable only to equity proceedings. Md. Rule 1 a. Md. Rule 582 authorizes a voluntary dismissal of an “action, claim, counterclaim, cross-claim, or third party claim only with leave of court.” The court shall specify in its order of dismissal, after an opportunity by any other party to object, whether the dismissal is with or without prejudice. The dismissing party is held responsible for all costs or for those of the part that is dismissed, if less than all. Md. Rule 582 b. The rule does not even remotely suggest that counsel fees are part of the costs.

As a general rule, “legal fees incurred by the successful party” are not recoverable. Empire Realty Co. v. Fleisher, 269 Md. 278, 285, 305 A. 2d 144, 148 (1973). An attorney’s fee, except for an appearance fee, is not taxes as part of the costs in the absence of a statute specifically authorizing it. Empire Realty v. Fleisher, supra, 269 Md. at 286, 305 A. 2d at 148. See also, Glassman Construction Co., Inc. v. Maryland City Plaza, Inc., 371 F. Supp. 1154 (1974); Hamilton v. Trundle, 100 Md. 276, 59 A. 719 (1905); Hess v. Chalmers, 33 Md. App. 541, 365 A. 2d 294 (1976).

As with all general rules, there are exceptions. Counsel fees are permitted when the parties contract to pay a fee, Mortgage Investors of Washington v. Citizens Bank and Trust Company of Maryland, 278 Md. 505, 366 A. 2d 47 (1976) aff'g 29 Md. App. 591, 349 A. 2d 647 (1976), and under the provisions of some of the Md. Rules, such as Rule 604 which provides:

“b. Bad Faith. .. Unjustified Proceeding Delay.
In an action or part of an action, if the court finds that any proceeding was had (1) in bad faith, (2) without substantial justification, or (3) for purposes of delay the court shall require the moving party to pay to the adverse party the amount of the costs thereof and the reasonable expenses incurred by the adverse party in opposing such proceeding, including reasonable attorneys’ fees.”

Fair’s petition for a counsel fee was founded upon Rule 604 b. Indeed, absent that rule, under current law, there would be no basis for such petition. Empire Realty Co. v. Fleisher, supra; Glassman Construction Co., Inc. v. Maryland City Plaza, Inc., supra.

The rule, however, requires a finding by the trial court of one or more of three disjunctive factors, i.e., that the “proceeding” was brought, maintained, or discontinued 1) in bad faith, or 2) without any substantial justification, or 8) for purposes of delay. Unless one of those three elements is found by the trial judge to be present in the case, Rule 604 b may not be used as a vehicle so as to award counsel fees to the other party’s lawyer, at the expense of the allegedly offending party.

Once the trial court has made a finding that one of the three factors, bad faith, absence of substantial justification, or for purposes of delay, exists, then sanctions against the offender are mandatory. Waters v. Smith, 277 Md. 189, 197, 352 A. 2d 793, 797 (1976) aff'g 27 Md. App. 642, 342 A. 2d 8 (1975); Hess v. Chalmers, supra, 33 Md. App. at 545, 365 A. 2d at 296-97. Where, however, no such finding is made, the court may not invoke Rule 604 b. Hess v. Chalmers, supra, 33 Md. App. at 545, 365 A. 2d at 296-97.

In the instant case, the trial judge, in his written opinion in support of the order of October 15, 1976, neither referred to Rule 604 b nor made any finding necessary to trigger its peine forte et d.ure.

We recognize that even in the absence of a specific reference to Rule 604 b, “Judges are presumed to know the law,” Hebb v. State, 81 Md. App. 493, 499, 356 A. 2d 583, 587 (1976); Samson v. State, 27 Md. App. 326, 334, 341 A. 2d 817, 823 (1975); See also Schowgurow v. State, 240 Md. 121, 126, 213 A. 2d 475, 479 (1965) and to apply it correctly, Hebb v. State, supra, 31 Md. App. at 499, 356 A. 2d at 588. Nevertheless, when as here, there is, in the trial judge’s opinion, not the slightest indication that he relied upon Rule 604 b, coupled with the fact that none of the findings required by that rule were made, the presumption yields to the clear inference that the judge either 1) failed to rely upon Rule 604 b, or 2) if he did rely upon it, he failed to make the requisite finding so as to impose validly the sanctions it authorizes.

We shall reverse the order awarding counsel fees and remand the matter to the trial court for its reconsideration in the light of this opinion. In view of our decision, it is unnecessary to consider the cross-appeal.

There yet remains for our consideration a motion by Fair that we dismiss Colonial’s appeal for failure to comply with Md. Rule 1028 c 2. That section of the Rule, applicable to printed record extracts in civil cases that are appealed to this Court provides:

“If the parties are unable so to agree [by way of stipulation on the parts of the record to be printed in the extract, Md. Rule 1028 cl], then within ten days after the filing of the record in this Court the appellant shall deliver to the appellee a written statement of the parts of the record he proposes to include in the printed extract. Within ten days after the delivery of such statement by the appellant to the appellee, the appellee shall deliver to the appellant a written statement of any additional parts of the record the appellee desires to be included in the printed extract. Within ten days after the delivery of the appellee’s statement to the appellant, the appellant may deliver to the appellee a statement of any additional parts of the record he proposes to include in the printed extract in view of the parts of the record designated in the statement of the appellee.”

In this appeal, Colonial failed to deliver to appellee within 10 days of filing of the record a written statement of the parts of the record proposed to be printed, and thereby violated Rule 1028 c 2.

Pointing to the recent opinion of this Court in Kemp-Pontiac-Cadillac v. S & M Construction Co., Inc., 33 Md. App. 516, 365 A. 2d 1021 (1976), Fair avers that we should dismiss the appeal. We decline to do so. We so decline because we believe Kemp to be inapposite factually to the case now before us. In Kemp, we observed six distinct violations of rules with respect to appeals. We noted that the “most egregious omission was appellant’s failure to print page 193 of the transcript, skipping from page 192 to page 194, without designating the omission in any way and withholding from the court the testimony of the vice president of the appellee that it was not his intention to discount the note of the corporate appellant. . . .” 33 Md. App. at 523, 365 A. 2d at 1025. The seemingly attempted deception, if successful, could have resulted in a decision of this Court based on a false premise thereby causing undue damage to an innocent party. We were astounded at the omission of part of the transcript without explanation as to why it was omitted or even a reference to the fact that it had been omitted. That fact, more than anything else, led us to exercise our discretion in such a manner as to dismiss the appeal.

The instant case, however, does not pfesent the “egregious omission” that we found in Kemp. The failure of Colonial’s counsel to comply with Md. Rule 1028 c 2, does not appear to us, under the circumstances of this case, to be of such magnitude as to require a summary dismissal of the appeal. We think what the Court of Appeals opined in Anderson v. Null, 215 Md. 476, 482, 138 A. 2d 875, 878 (1958) to be especially appropriate to this case.

“While we do not wish to condone failure to observe the rules, we do not think that the appellants’ derelictions were so serious as to call for a dismissal of the appeal. Dismissal is not mandatory for these deficiencies.”

Colonial acknowledges it “may have been slightly remiss in not directly informing counsel for . . . Fair in writing of its belief that the entire record would have to be printed....” Our feeling is somewhat stronger. While we shall not dismiss the appeal for failure to comply with Md. Rule 1028 c, we shall impose an economic sanction for the failure. Thus, pursuant to Md. Rule 1082, we shall apportion the costs so as to impress upon Colonial the necessity for adhering to the Rules of Procedure.

Motion to dismiss appeal denied; order awarding counsel fees reversed and case remanded for further proceedings; appellant to pay two-thirds of the costs, appellee to pay one-third of the costs.

      . Robinson v. Board of County Commissioners, 262 Md. 342, 278 A. 2d 71 (1971); Isen v. Phoenix Assurance Co., 259 Md. 564, 270 A. 2d 476 (1970); Pride Mark Realty, Inc. v. Mullins, 30 Md. App. 497, 352 A. 2d 866 (1976).

      . Based upon the “Forgotten War,” a poem by P.T. Gilbert, in Counterpoint. An Anthology of Modern Poetry, (Idlewild, 1966), which describes tidal action as, “Wave after wave pounded the sand, A precisioned army of water. Attacking, retreating, attacking once more. * * * This ancient war is forever.”

      . A trade mark or trade name registered with the Secretary of State of the State of Maryland pursuant to Md. Ann. Code art. 41, § 93 is viable for a ten year period. In the instant case, the registration expires June 29, 1981.

      . Colonial Carpets, Inc., as registered in Maryland, is described in a certificate of the Secretary of State as a “Red Barn with the words, ‘CARPET BARN’ printed on the front, and also the name ‘CARPET BARN.’ ”

      . Thu order to the sheriff contained the names and addresses of the three alleged managers only. The advertising company official was not named in the order.

      . But see n. 5, supra.

      . Subject to the condition that, “If a party has pleaded a counterclaim before service upon him of an opponent’s motion for voluntary dismissal, the dismissal shall not be allowed over such party’s objection unless the counterclaim can remain pending for independent adjudication by the court.” Md. Rule 541 b.

      . Md. Rule 541 b “is virtually identical” to Federal Rule 41 (a) (2), Plater v. Kane Warehouse Co., 241 Md. 462, 468, 217 A. 2d 102, 106 (1966). Federal Rule 41 (a) (2) does permit the allowance of attorney’s fees as a term or condition to voluntary dismissal. LeCompte v. Mr. Chip, Inc. 528 F. 2d 601 (5th Cir. 1976); Lunn v. United Aircraft Corporation, 26 F.R.D. 12 (D.C. Del. 1960). Maryland, however, has not. extended the conditional voluntary dismissal to include more than costs. See e.g., Williams v. Snyder, 221 Ma. 262, 155 A. 2d 904 (1959); Crawford v. Richards, 193 Md. 236, 66 A. 2d 483 (1949); McQuaid v. United Wholesale Aluminum Supply Co., Inc., 31 Md. App. 580, 358 A. 2d 922 (1976); 3 Poe’s Pleading and Practice, § 362 (6th ed. H.M. Sachs, Jr. 1975).

      . Byron Lasky & Associates v. Cameron-Brown Co., 33 Md. App. 231, 236, 364 A. 2d 109, 113 (1976) explains that the reason for requiring court approval of a voluntary dismissal “is to prevent unilateral dismissal of cases in which a defendant has acquired a right to affirmative relief.”

      . The reason the court is required to specify that the dismissal is with or without prejudice is to eliminate the possibility of doubt. Byron Lasky & Associates v. Cameron-Brown Co., supra, 33 Md. App. at 236, 364 A. 2d at 113.

      . In Baltimore City and some of the counties, appearance fees are collected by the clerk of the court and disbursed in accordance with Md. Cts. & Jud. Proc. Code Ann. § 7-204, for use in the improvement of the court library.

      . Some of those statutes are:
      (li Md. Real Prop. Code Ann. 8 12-106 (bl (5i permits the trial court to fix a fee in a condemnation case, “if the judgment is for the defendant on the right to condemn.” The same article, in § 12-107 (b), allows the trial court to award a fee to the defendant’s counsel, “[i]f the final decision on appeal is that the plaintiff is not entitled to condemn the property.” See also Md, Rule U25 b.
      (2) Md. Est. & Trusts Code Ann. 8 13-406 sanctions “a reasonable fee for an attorney” for his services in connection with the preparation of a petition for withdrawal by a trustee of money deposited under the provisions of the “Sub title 4. Recovery by a Minor in Tort,”
      (8) Md, Ann, Code art, 101, § 67 (The Workmen’s Compensation Act.
      (4) Md, Ann. Cede art. 16, § 5A (counsel fees in child custody, support, visitation, or arrearages cases where “the financial status of both parties” and “substantial justification” permit. See Peterman v. Peterman, 14 Md. App. 310, 286 A. 2d 812 (1972)).
      (6) Md. Ann. Code art. 88A, § 7 (bl authorizes a trial court to award fees for counsel representing the local governing authority in claims against public assistance recipients or their estates. The fees are deducted from the gross judgment and the net is paid over to the local authority.

      . For other rules concerning the award of attorneys’ fees see Md. Rules 406 c, 414 b, 417 c 3, 421 d, 610 e, C52 c and d, S72 b, and V79 d.

      . “Strong and severe punishment."


author:
Davidson, J.,
      Mason, J.,

text:
    SAMUEL EDWARD PITTS v. STATE OF MARYLAND
    [No. 824,
    Sepember Term, 1976,]

      Decided June 23, 1977.

      The cause was argued before Thompson, Davidson and Mason, JJ.

      Philip J. Santa Maria, Assigned Public Defender, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Philip H. Armstrong, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court. Mason, J., dissents and filed a dissenting opinion at page 601 infra.

In the Circuit Court for Montgomery County, a jury found Samuel Edward Pitts, the appellant, guilty of storehouse breaking and stealing (count 2), and larceny to the value of one hundred dollars or more (count 4). On appeal, the appellant initially contends that the trial court erred in its instructions to the jury.

The court instructed the jury in pertinent part:

“This case comes before you by an indictment from the Grand Jury of this county,...
“The fact that a man or a woman is indicted does not mean that he or she is guilty. It merely means that they must stand trial for the crime.
“As gome of you perhaps know, but I will tell you again, the Grand Jury has a different function than you do. They make inquiries to determine two thingg; One, has a crime been committed in their opinion, and if so, must the person under investigation stand trial for that crime. This is one way that people are brought to trial.
“Another way is by a warrant, and another way is by a charge which we call an information by the State’s Attorney’s Office. But none of these indicate that the defendant is guilty. There is no presumption of innocence, no presumption of guilt. In other words, he comes into this court and the State must prove guilt beyond any reasonable doubt. There is no burden on the defendant whatsoever.
“There are many definitions of reasonable doubt, and the one I always give juries is that kind of a doubt which would cause you to hesitate in important affairs in your lifetime, family affairs or business affairs, as distinguished from something of a trivial nature.
“Another way to say it is it is a doubt based upon reason.” (Emphasis added.)

The appellant specifically objected to the words “there is no presumption of innocence.”

The question of whether it is error to instruct the jury that there is no presumption of innocence has not been considered in Maryland. While courts in other jurisdictions have frequently held that it is error to fail to instruct that there is a presumption of innocence, the only jurisdiction which appears to have considered the question presented here held that it was error to instruct that the presumption does not exist. We reach the same result.

Common usage, not rigid rules, formal technicalities and logical analysis of scholars, linguists or grammarians, determines the meaning of words. The phrase “presumption of innocence” has been used consistently by the courts of every jurisdiction in the United States. Indeed, this presumption has been described as fundamental to American law.

In Coffin v. United States, the Supreme Court said:

“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
“It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States.”

Similarly, this Court has said:

“The fundamental principle of the administration of criminal justice under our judicial processes is that a person accused of crime is presumed to be innocent until proved guilty.”

Legal scholars recognize that the words “presumption of innocence” mean that the State must produce evidence to prove an accused guilty beyond a reasonable doubt. In his treatise Wigmore says:

“[T]he ‘presumption of innocence’ is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases, i.e., the rule that it is for the prosecution to adduce evidence (ante, § 2487), and to produce persuasion beyond a reasonable doubt (ante, § 2497). As to this latter part, the measure of persuasion, the ‘presumption’ says nothing. As to the former part, the ‘presumption’ implies what the other rule says, namely, that the accused (like every other person on whom the burden of proof does not lie) may remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i.e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it.”

They point out, however, that the “presumption of innocence” is not a presumption at all and that the phrase is technically inaccurate. In his treatise McCormick says:

“The presumption of innocence. Assignments of the burdens of proof prior to trial are not based on presumptions. Before trial no evidence has been introduced from which other facts are to be inferred. The assignment is made on the basis of a rule of substantive law providing that one party or the other ought to have one or both of the burdens with regard to an issue. In some instances, however, these substantive rules are incorrectly referred to as presumptions. The most glaring example of this mislabeling is the ‘presumption of innocence’ as the phrase is used in criminal cases, The phrase is probably better called the ‘assumption of innocence’ in that it describes our assumption that, in the absence of contrary facts, it is to be assumed that any person’s conduct upon a given occasion was lawful. In criminal cases, the ‘presumption of innocence' has been adopted by judges as a convenient introduction to the statement of the burdens upon the prosecution, first of producing evidence of the guilt of the accused and, second, of finally persuading the jury or judge of his guilt beyond a reasonable doubt. Most courts insist on the inclusion of the phrase in the charge to the jury, despite the fact that at that point it consists of nothing more than an amplification of the prosecution’s burden of persuasion.” (Footnotes omitted.)

Nonetheless, they advocate the continued use of the phrase “presumption of innocence,” notwithstanding its technical inaccuracy, because it conveys to the jury a special meaning which affords the accused additional protection not contained in the rule concerning the burden of proof.

In Evans v. State, this Court in dicta said:

“When the same word or phrase means one thing to the writer or speaker and something quite different to the reader or hearer, communicative chaos is inevitable.”

Here, at the time of the court’s instruction, the jurors, like the legal scholars, understood the words “presumption of innocence” to mean that the State was required to produce evidence to prove that the accused was guilty beyond a reasonable doubt. The trial court, also like the legal scholars, understood those words to involve a technically inaccurate use of the word “presumption.” When the court initially advised the jury that there was no “presumption of innocence,” communicative chaos ensued. The jury may well have concluded that the State did not have the burden of proof. The trial court’s subsequent instructions that the defendant had no burden and that the State must prove his guilt beyond a reasonable doubt, would in this context, be contradictory and therefore confusing. In essence, the jury may have been led to believe that the protections traditionally afforded by the presumption of innocence, for some unexplained reason, did not apply in this case. The instruction was misleading. Accordingly, we shall reverse.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Montgomery County.

Mason, J.,

dissenting:

In this case the trial judge refused to use the words “presumption of innocence” incorrectly, and for this reason he was reversed. I disagree.

Although it may have been improper because of practice and common usage for the trial judge to instruct the jury that there is no presumption of innocence, I do not think this misstep, even if error, was so misleading and prejudicial as to require a reversal. This is especially true since there was an abundance of evidence to sustain the verdict, and the jury was fully instructed on the burden of proof and the doctrine of reasonable doubt.

In my view, the misuse of the term “presumption of innocence” should be eliminated. The first and last occasion on which the appellate courts in this State came squarely to grips with this term was in Evans v. State, 28 Md. App. 640, 349 A. 2d 300, aff'd. 278 Md. 197, 362 A. 2d 629, where we said, by way of dictum, at 676 n. 13:

“The ‘presumption of innocence’ is, of course, not a presumption at all. 9 Wigmore on Evidence (3rd Ed. 1940), § 2511, points out at p. 407, ‘[T]he “presumption of innocence” is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases, i.e. the rule that it is for the prosecution to adduce evidence ... and to produce persuasion beyond a reasonable doubt... .’ Thayer, Preliminary Treatise on Evidence (1898), is equally clear, at p. 551, ‘In the first place, the so-called presumption of innocence is not, strictly speaking, a presumption in the sense of an inference deduced from a given premise. It is more accurately an assumption which has for its purpose the placing of the burden of proof upon anyone who asserts any deviation from the socially desirable ideal of good moral conduct.’ And see Morgan, Basic Problems of Evidence (1962), p, 44.
If the ‘presumption of innocence' were a true presumption of law or permitted inference of fact, it would be flagrantly unconstitutional under Leary v. United States, supra, and other cases requiring that a presumption be based upon a mathematical probability that it be true. Quite the reverse likelihood, of course, applies to one arrested, indicted and brought to trial. As McCormick, The Law of Evidence (1954), astutely pointed out, at 647-648: ‘[W]hen it came to be employed, in argument and in instructing juries, in criminal trials under the common law, it became a source of mysticism and confusion. As applied to the accused, any assumption, or ‘presumption’ of innocence, in the popular sense of an inference based on probability, is absurd. The probability is the reverse. The assumption of innocence which is reasonable in the absence of contrary facts becomes quite unrealistic when we include in the picture the facts that the person has been officially charged with the crime and has been brought to trial. Nevertheless, the phrase ‘presumption ‘ of innocence’ has been adopted by judges as a convenient introduction to the statement of the burdens upon the prosecution, first of producing evidence of the guilt of the accused and, second, of finally persuading the jury or judge of his guilt beyond a reasonable doubt.

It is enough to tell the jury in strong terms that the heavy burden is upon the prosecution to prove each and every element of a criminal charge beyond a reasonable doubt. Beyond this, an additional instruction on the presumption of innocence would add nothing as a practical matter.

Although the erroneous usage of the phrase “presumption of innocence” has become so ingrained as to make its excision exceedingly difficult, I cannot countenance the perpetuation of this error simply because we have been doing it that way for a long time. Appropriate are the words of Oliver Wendell Holmes, The Path of the Law, 19 Harv. L. Rev. 469 (1897):

“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Notwithstanding the fiction that the law is an all-knowing monolith, the simple truth is that when we first began to use the word “presumption” incorrectly in this regard, we did not know any better. We now do. I feel, therefore, as did Mr. Justice Jackson in Massachusetts v. United States, 333 U. S. 611, 639-640 (dissenting opinion):

“I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.”

Accordingly, I respectfully dissent.

      . The trial court declined to correct the instruction. The following colloquy took place at the bench:
      “MR. SCHAEFER: Your Honor, I believe that Your Honor inadvertently instructed the jury that there is no presumption of innocence, which is, of course, not correct, there is a presumption of innocence.
      “THE COURT: There is no presumption either way.
      “MR. SCHAEFER: I except to Your Honor’s instruction in that regard.”

      . Some jurisdictions hold that it is error to fail to give this instruction when requested. Illustrative are: United States v. Nelson, 498 F. 2d 1247, 1249 (5th Cir. 1974); Dodson v. United States, 23 F. 2d 401, 402-03 (4th Cir. 1928); Thomas v. United States, 156 F. 897, 913 (8th Cir. 1907); Pate v. State, 42 Ala. App. 334, 163 So. 2d 645, 648 (1964); People v. Long, 407 Ill. 210, 95 N.E.2d 461, 463 (1950); Commonwealth v. Madeiros, 255 Mass. 304, 151 N. E. 297, 300 (1926); State v. Harrison, 23 Mont. 79, 57 P. 647, 647-48 (1899); Franklin v. State, 92 Wisc. 269, 66 N. W. 107 (1896). Contra, Kindle v. State, 174 Ark. 1179, 297 S. W. 827, 828 (1927); State v. Vance, 119 Vt. 268, 125 A. 2d 800, 804 (1956).
      Others hold that it is error to fail to give this instruction even though there has been no request or objection to its omission. Illustrative are: McDonald v. United States, 284 F. 2d 232, 233 (D.C. Cir. 1960); Helton v. United States, 231 F. 2d 654 (5th Cir. 1956); People v. Hill, 182 Colo. 253, 512 P. 2d 257, 258-59 (1973); People v. Donald, 21 Ill.App.3d 696, 315 N.E.2d 904, 906 (1974); State v. McHenry, 13 Wash. App. 421, 535 P. 2d 843, 845-46 (1975), aff'd, 88 Wash. 2d 211, 558 P. 2d 188 (1977). Contra, United States v. Private Brands, Inc., 250 F. 2d 554, 557 (2nd Cir. 1957), cert. denied, 355 U. S. 957, 78 S. Ct. 542 (1958); Spevak v. United States, 158 F. 2d 594, 598 (4th Cir. 1946); Raffour v. United States, 284 F. 720, 721 (9th Cir. 1922); Sylvia v. United States, 264 F. 593, 595 (6th Cir. 1920); United States ex rel. Campagne v. Follette, 306 F. Supp. 1255, 1256-58 (E.D. N.Y. 1969); State v. Boswell, 194 N. C. 260, 139 S. E. 374, 374-76 (1927).

      . Miklencic v. United States, 62 F. 2d 1044, 1045 (3rd Cir. 1933).

      . See The American Heritage Dictionary of the Engligh Language, p. xxiii (1970).

      . Illustrative are the following Maryland cases: Malcolm v. State, 232 Md. 222, 225, 192 A. 2d 281, 283 (1963); Johnson v. State, 227 Md. 159, 163, 175 A. 2d 580, 582 (1961); State v. Lassotovitch, 162 Md. 147, 155, 159 A. 362, 365 (1932); Wilkins v. State, 16 Md. App. 587, 607-08, 300 A. 2d 411, 422 (1973); Williams v. State, 14 Md. App. 619, 625, 287 A. 2d 803, 807 (1972); McDuffie v. State, 10 Md. App. 190, 192, 268 A. 2d 590, 591 (1970); Williams v. State, 3 Md. App. 58, 60, 237 A. 2d 822, 823 (1968); Spencer v. State, 1 Md. App. 264, 267, 229 A. 2d 151, 154 (1967).

      . 156 U. S. 432, 453-54, 15 S. Ct. 394, 403 (1895).

      . Ayre v. State, 21 Md. App. 61, 62, 318 A. 2d 828, 829 (1974). Accord, Arbaugh v. Director, Patuxent Institution, 27 Md. App. 662, 669, 341 A. 2d 812, 816 (1975).

      . 9 J. Wigmore, Evidence § 2511 at 407, 409 (3rd ed. 1940).

      . McCormick, Handbook of the Law of Evidence § 342 at 805-06 (2nd ed. 1972).

      . According to 9 J. Wigmore, supra at 407:
      “However, in a criminal case the term does convey a special and perhaps useful hint, over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced. In other words, the rule about burden of proof requires the prosecution by evidence to convince the jury of the accused’s guilt; while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is perhaps only an implied corollary to the other I to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused.
      “So far, then, as the ‘presumption of innocence’ adds anything, it is particularly a warning not to treat certain things improperly as evidence.” (Emphasis in original. I
      According to McCormick, supra at 806:
      “Although the phrase is technically inaccurate and perhaps even misleading in the sense that it suggests that there is some inherent probability that the defendant is innocent, it should \ot be discarded. Like the requirement of proof beyond a reasonable doubt, it at least indicates to the jury that if a mistake is to be made it should be made in favor of the accused....”
      This reflects a change in view from McCormick, The Law of Evidence, at 649 (1954 ed.).

      . 28 Md. App. 640, 677, 349 A. 2d 300, 325 (1975).

      . State v. Grady, 276 Md. 178, 185, 345 A. 2d 436, 440 (1975); Midgett v. State, 216 Md. 26, 41, 139 A. 2d 209, 215 (1958). See Pine Street Trading Corp. v. Farrell Lines, Inc., 278 Md. 363, 376, 364 A. 2d 1103, 1112 (1976); Wood v. Johnson, 242 Md. 446, 456, 219 A. 2d 231, 236 (1966); Wintrobe v. Hart, 178 Md. 289, 296, 13 A. 2d 365, 368 (1940).

      . In view of this decision, the appellant’s other contentions need not be considered.