text:
    LESTER SHIMP v. JAMES SHIMP et al.
    [No. 1228,
    September Term, 1978.]

      Decided July 10, 1979.

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

      R. Martin Palmer, Jr., for appellant.

      William C. Wantz, with whom was Omer T. Kaylor, Jr., on the brief, for appellees.
   Moylan, J.,

delivered the opinion of the Court.

This appeal was taken from the October 16, 1978, order of Judge Irvine H. Rutledge of the Circuit Court of Washington County dismissing the appellant, Lester Shimp’s, petition for declaratory relief.

On or about May 8, 1974, the appellant and his now-deceased wife, Clara V. Shimp, executed a will. The will purports to be a joint will of the couple and provides, in pertinent part, for a reciprocal disposition of the entire estate upon the death of one of the testators. It further provides for a plan of disposition upon the death of the survivor. The appellees in this action are the named beneficiaries of that common plan. Lastly, the will provides for its irrevocability and a waiver of the right to revoke or change the will.

On January 16, 1975, Mrs. Clara V. Shimp died. All the property owned by the couple was jointly owned marital property and passed to Mr. Shimp upon her death by operation of law. The will was not offered for probate. Mr. Shimp now desires to dispose of the property in a manner inconsistent with the common plan provided in the joint will and seeks declaratory relief allowing him to do so by finding the will in question to be null and void.

Mr. Shimp seeks this result by asserting that the will is invalid under the laws of the State of Maryland. He further contends that he may revoke the will at his pleasure. Lastly, he asserts a lack of consideration to support the finding of an underlying contract.

The logic of the appellant’s first contention goes something like this. The will depends for its efficacy upon the death of both the makers. Since it is impossible to know which party will survive the other, it is not the will of either and is, therefore, not valid. The appellant’s thought process is correct but he misreads the will. The will provides for a mutual bequest which becomes operative on the death of the first testator to pass his or her interest in the jointly owned property. That the will purports to do that which would already occur by operation of law should not render it invalid if “it can be reasonably construed to be a bequest of each testator of his individual interest which is to have effect upon the death of the first to die and does not depend for its efficaciousness upon the death of the surviving party.” Cole v. Shelton, 169 Ark. 695 (1925); 169 A.L.R. 9, 20 (1947). Since joint wills have been accepted in Maryland, 31 Op. Atty. Gen. 288 (1946), and this will meets all the requirements for a will and provides for the bequest of the estate of the first to die upon his death, it becomes operative upon that death and, therefore, is a valid will.

The appellant’s second contention asserts his right to revoke the will in question at his option. Clearly, on this point, the appellant is correct. There can be no restriction on the right of a person with testamentary capacity to make a will to revoke a prior will. Moats v. Estate of Pumphrey, 33 Md. App. 9 (1976); Moats v. Schoch, 24 Md. App. 453 (1975); Wilks v. Burns, 60 Md. 64 (1882); O’Hara v. O’Hara, 185 Md. 321 (1945). This, however, is not dispositive of the issue presented. Although the appellant correctly asserts the revocable nature of the will, where that will or any parts thereof are founded on a contract between the parties, that contract will be enforced by the courts if certain, definite and based on sufficient consideration. Moats v. Schoch, supra; Tutunjian v. Vetzigian, 299 N.Y. 315, 87 N.E.2d 275 (1949); 169 A.L.R. 9 (1947).

It is clear that a joint will or mutual wills containing the joint or . reciprocal agreement not to revoke partake of both the character of a will an;d the character of a contract. Even if the will itself, notwithstanding its provision to the contrary, is revocable, the contractual obligation may not be so lightly avoided. In Atkinson, Law of Wills (2nd Ed. 1953), it is said at 224:

“Frequently joint or mutual wills are made in pursuance of an agreement or compact not to revoke them. Here it is important to distinguish between the concept of wills and that of contracts. Our law has no separate concept of ‘will made in pursuance of contract;’ we must treat the will part as a will and the contract part as a contract. Viewed in the aspect of a will, such instruments do not differ from other wills. In order to be effective, they must be admitted to probate and they are revocable although there has been an agreement nqt to revoke. The matter of the contractual aspect does not properly arise upon probate, but only when the agreement is sought to be established as a claim against the estate, or in a proceeding against the successors of the decedent. This is the sound and orthodox treatment of the question.”

In Moats v. Schoch, supra, at 24 Md. App. 459-460, Judge Orth quoted with approval Annot., 169 A.L.R. 9, 24-25, stating the rule that a will is revocable, notwithstanding a provision that it will not be revoked, but then explaining the limited effect of such revocation:

“This does not mean that the obligation of the contract is escaped by revoking the will. It means that on the issue of will or no will with which the probate court is concerned a will is to be regarded as revocable notwithstanding it was executed pursuant to contract. The question whether a revocation constitutes a breach of contract for which relief may be had in law. or in equity is of no concern, strictly speaking, to a probate court. Therefore a later will which revokes a prior will which was jointly executed, or one of two separate wills containing reciprocal bequests, is admissible to probate, though the testator violated his contract by executing it; and a jointly executed will or one of two separate wills which are reciprocal in their provisions is not admissible to probate as the will of one of the testators who revoked it, notwithstanding the revocation was a breach of contract. Concisely stated, it is the contract and not the joint will which is irrevocable.” (footnotes omitted)

We there also quoted with approval Vaughn, The Joint and Mutual Will, 16 Baylor L. Rev. 167, 170 (1964), to the same effect:

“The last theory, and, in the writer’s opinion, the only tenable one at this time is that of contract. It can be stated as follows: The joint and mutual will is based on a contract between the parties. While the will itself is wholly revocable at any time, the underlying contract will be enforced. * * * Shawver v. Parks [239 S.W.2d 188] clears up many questions about this creature — partly will and partly contract. According to it, the true rule is that the will is a testamentary instrument, ambulatory and revocable, and it cannot be made irrevocable. Even though the testamentary portions are revocable, the contract portions are irrevocable. Therefore, the underlying compact is enforceable — or in a loose sense irrevocable — notwithstanding the revocability of the will.”

Immediately following that quotation, we added our explicit seal of approval at 24 Md. App. 460, “We believe this to be the majority view in other jurisdictions____It is also in accord with the decisions of this State.”

Judge Orth’s conclusion in Moats v. Schoch was clear that although a joint or mutual will may be revoked, notwithstanding a provision barring such revocation, and a subsequent will must be admitted to probate, the contractual obligation will nonetheless be enforced. As he said for this Court, at 24 Md. App. 465:

“Such a will, however, may be revoked in a manner provided by Estates & Trusts Art. § 4-105, and a subsequent will, validly executed, and which is the last will of the testator, shall be admitted to probate. But, the contract upon which the prior will was executed, upon proof of its validity, may be specifically enforced in equity, or damages recovered upon it at law. See P. Sykes, Maryland Probate Law and Practice, § 12 (1956).”

The appellant denies the existence of a valid underlying contract in which he agrees to waive his right to revoke this will. As in other contract cases, the person seeking to establish the existence of the contract has the burden of proving it, Moats v. Estate of Pumphrey, supra, by establishing all of the requisite elements of the contract by clear and convincing evidence. P. Sykes, Maryland Probate Law & Practice, § 1051 (1956). The law in this area is not uniform throughout the country. Maryland has adopted the view that the mere existence of a joint will will not, without more, raise the inference of the existence of an underlying contract, Moats v. Estate of Pumphrey, supra; Persson v. Dukes, 33 Md. App. 214 (1976); aff’d 280 Md. 194 (1977).

The question of the existence of a contract comes down to the existence of sufficient consideration to support this contract. Although this will is under seal, which imports consideration to it, under modern law, a court of equity may inquire into the sufficiency of such consideration. Russ v. Barnes, 23 Md. App. 691 (1974). There appears to be sufficient evidence to support a finding of the presence of valuable consideration in this case. Generally, consideration is said to be adequate where the parties agree to the surrender or acquisition of any legal right or to do that which the party is not legally obliged or refrain from doing that which he has a legal right to do. Ledingham v. Bayless, 218 Md. 108 (1958); Hercules Powder Co. v. Harry T. Campbell Sons Co., 156 Md. 346 (1929). Generally, the mutual promises of a husband and wife may be sufficient consideration to agree to execute a joint will. Crofut v. Layton, 68 Conn. 91, 35 A. 783 (1896); Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812 (1940); 169 A.L.R. 9, 31 (1947). As stated in 169 A.L.R. 9, 31, “consideration for a husband and wife agreement to execute wills with reciprocal bequests and third party bequests may be found in the inducement held out by one and the other to testate mutually and the reciprocal bequests.”

Our present will provides for mutual bequests and third party bequests. It states that the parties make both the reciprocal and third party bequests in consideration for the agreement to waive the right to change this will. Were the reciprocal bequests the only promise on one side, it could be said that this was a preexisting obligation and could not be consideration. However, the will expressly states that the waiver is made in exchange for the agreement to make the other bequests as well. There is no legal obligation to do this. Therefore, the exchange of the promises made by the parties was sufficient consideration for the contract.

This case presents us with a valid contract which was the basis for the making of a joint will. Although the will may be revoked at any time in a manner specified by law, the appellant may not avoid his contractual obligations by doing so. Persson v. Dukes, 280 Md. 194 (1977); Anno. 85 ALR3d 8; See also, 97 CJS, Wills § 1364.

In his petition for declaratory relief, the appellant sought a declaratory judgment to the effect that the joint will in question was invalid under the laws of Maryland. Such, however, is not the case. The appellant further sought a declaratory judgment that there was no consideration to support the finding of an underlying contract. Such, however, was not the case. The appellant finally sought declaratory judgment to the effect that he might revoke the joint will at his pleasure. Literally, he may in a purely testamentary context. He may not, however, thereby avoid the perils of breaching his contractual obligation.

Judgment affirmed; costs to be paid by appellant.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    J. LAWRENCE MILLISON v. JOSEPH ABEL CLARKE et ux.
    [No. 1254,
    September Term, 1978.]

      Decided July 10, 1979.

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

      David M. Williams for appellant.

      Thomas P. Smith for appellees.
   Lowe, J.,

delivered the opinion of the Court.

This is a second rent recovery action arising out of the breach of a lease. It constitutes an appeal and the embryo of a cross-appeal. The facts are carefully set forth in the first Millison v. Clarke, 32 Md. App. 140 (1976). It will suffice for our primary concern here that the trial judge granted summary judgment against appellant holding that a releasing of the premises to C.E.L., Inc., by the landlord for a term in excess of the breached original lease operates as an acceptance of surrender by the lessee, as a matter of law. For purposes of summary judgment it is admitted that the appellees were notified that the reletting was intended to mitigate appellees' damages but was not to be construed as an acceptance of the offer of surrender of the premises from appellees by appellant. He expressly apprised appellees that they would be held responsible for the diminution of rental between that which they had contracted to pay before the breach, and that for which appellant was able to relet the property.

As recently reiterated by the Court of Appeals, Honaker v. W.C. & A.N. Miller Development Co., 285 Md. 216 at 231 (1979), the function of a summary judgment proceeding is not to try the case or to attempt to resolve factual disputes, but to determine whether there is a dispute as to material facts sufficient to provide an issue to be tried. 285 Md. at 231; Dietz v. Moore, 277 Md. 1, 4-5 (1976). Even if the underlying facts are undisputed all inferences must be resolved against the proving party. Honaker, supra at 231. Accordingly, the primary issue before us in the present case is a very narrow one. Does the releasing of a premises for a term in excess of the balance of a breached lease result in an acceptance by a lessor of an offered surrender of premises by the breaching lessee, as a matter of law? If it does, summary judgment was properly granted. • If it is merely an indication of an intent to accept the surrender, it, along with other evidence, becomes a matter for the factfinder.

It is hornbook law in Maryland that a commercial landlord may hold a breaching tenant for the entire amount of the rent due under a lease without seeking to lessen his damages. McNally v. Moser, 210 Md. 127, 141 (1956). It is equally accepted that he may mitigate by reletting without relinquishing his claim against the breaching tenant for the unmitigated rental. Oldewurtel v. Wiesenfeld, 97 Md. 165, 176 (1903). Mitigation for breach of residential leases has become a statutory prerequisite. Md. Real Prop. Code Ann. § 8-207 (1974). The reletting after breach for a term less than the term of the breached lease is a fact to be considered, but is not conclusive of the landlord’s intent to accept surrender of a lease.

Maryland has not yet decided whether the reletting for a term in excess of the breached term is an inferential factor indicative of intent to accept surrender or operative to effect such surrender as a matter of law. The Court of Appeals by dicta, strong dicta, has indicated its leaning toward the latter. The trial judge below relying upon that dicta, pointed out that:

“In Eidelman v. Walker & Dunlop, Inc., 265 Md. 538, 544 ... (1972) the court stated that: ‘A re-rental for a term longer than that under the existing lease, as was done here, is regarded as a surrender by operation of law, since it is an act inconsistent with the landlord-tenant relationship. There is no liability for rent thereunder.’
While Eidelman is not completely clear whether this factor alone constitutes an acceptance as a matter of law, there is dicta in Wilson v. Ruhl, 277 Md. 607, 611 ... (1976), which indicates that this is the interpretation which the court intended. In discussing whether sale of the leased property would have released the tenant from liability the Court said that: ‘... had Mrs. Ruhl sold the property, a surrender would have occurred because resale, akin to reletting for a term longer than the original term, is so inconsistent with the tenant’s estate as to allow for no other interpretation than that the landlord has reentered in order to accept a surrender.’ [citing Eidelman v. Walker & Dunlop, Inc.] (emphasis supplied). Such an act by the landlord is inconsistent with the continuing operation of the original lease and is of an unequivocal nature demonstrating that the landlord has accepted the offer of surrender.”

The trial judge further recognized that there are divergent views followed in the United States. The more rigid he referred to as the New York law and the more flexible was explained encyclopedically.

“The New York cases hold that any reletting for a period beyond the original term constitutes an acceptance of the surrender as a matter of law. The theory underlying these cases is that any such reletting is repugnant to the lease relationship with the original tenant since it interferes with the tenant’s right to dominion and control over the premises and shows an intent to exclude the lessee from resuming possession following his abandonment. The landlord is thus viewed as acting on his own account rather than on the account of the tenant whenever he relets beyond the unexpired term. Such is an unequivocal act which implies that the parties have agreed to consider the surrender as being effected, thereby releasing the tenant from liability on the lease. In Re Kerr, 19 F. Supp. 414 (S.D.N.Y. 1939); Bonsignore v. Koandel, 134 Misc. 344, 235 N.Y.S. 453 (1929).
The other view (which is generally followed by those states which hold that surrender is a matter of intention and a question of fact in situations where the reletting is short of the unexpired term) is that spelled out in 51 C.J.S. Landlord and Tenant, § 125 (8):
‘Ordinarily, the execution of a new lease for a term extending beyond that fixed in the original lease, with the tenant’s consent, is an indication of an intent to accept the surrender, even if the original lease authorizes the landlord to relet on the tenant’s account without thereby terminating the lease, but is not conclusive on such intent.’ ”

He concluded that

“. . . the Maryland cases dealing with this issue contain strong language that the execution of a new lease extending beyond the period of the abandoning lessee’s term indicate an acceptance of the lessee’s as a matter of law.”,

and he so held:

“The Court holds, as a matter of law, that the offer of surrender by the Clarkes was accepted by the landlord Millison at the time the C.E.L., Inc. lease was entered into. The original tenancy, and liability therefore, terminated on the date the new tenancy began. See, Eidelman, supra, 265 Md. at 544.”

Upon that premise he granted summary judgment on behalf of appellees and denied a similar motion of appellant.

Perhaps indicating his hesitancy of relying upon appellate dicta, the trial judge justified his conclusion by noting that:

“In the instant case, the conclusion that the landlord was acting on his own account rather than on the account of the original tenant is strengthened by the different provisions which were inserted in the lease with C.E.L., Inc. In particular, the ‘coin machine agreement’ and the provision for payment of all real estate taxes provide mechanisms through which the landlord can generate substantial additional revenues none of which would go towards mitigating damages resulting from the tenants’ abandonment of the leased premises.”

But these facts are only relevant if his legal conclusion was incorrect, and then, of course, only to be considered after denial of the motions for summary judgment in a subsequent factfinding role.

We hold that the judge erred in granting the summary judgment motion of appellees. The statement in Wilson citing Eidelman upon which the court relied says nothing more than that the reletting for the longer term than the original term is an act

“. . . so inconsistent with the tenant’s estate as to allow for no other interpretation than that the landlord has reentered in order to accept a surrender.”

But the hypothetical example alluded to in Wilson presupposes the act of reletting as standing evidentially alone. In an evidentiary vacuum without contractual explanation therefore, the reentry and reletting which preempts the tenant’s entire estate is conclusively a landlord’s reserved dominion over his property. But where the evidence indicates a flow of correspondence contradicting that interpretive conclusion, as is the case here, the apparent “inconsistenfcy] with the tenant’s estate” should be placed in factual balance against the evidence to the contrary. The final letter from appellant to appellees regarding appellant’s intention to relet “to help mitigate damages,” as sent on May 14,1974, was presumably received without reply by appellees. It concluded with the following paragraph:

“Please keep in mind that we have always apprised you that we intend to help to mitigate the damages of Mr. and Mrs. Clarke by constantly searching for interim tenants during the period of the original lease obligation of your clients. It has not been in the past, it is not now, and it will not in the future be our intention to release your clients from the lease agreement obligations as contained in the lease dated June 22, 1972.”

Appellees make much of the term used by appellant that he would be searching for “interim” tenants. Mitigating tenants during the “interim” of appellees’ lease is, of course, the only tenancy relevant to appellees. What was inferentially intended to be conveyed by that adjectival expression is a factual determination, but is hardly so conclusive as to devoid that correspondence of any weight or consideration by a factfinder.

Nor can it be said that, when the premises were let two years after the May 14th letter, the fact that the reletting exceeded the original term was interpretatively conclusive of acceptance of surrender in light of so forceful an expression of intention to the contrary. Thus, the mutual intent to surrender by the tenants and to accept surrender by the landlord is a contractual prerequisite of mind meeting necessary to abrogate the original contract. As pointed out by Judge Smith in Eidelman:

“The original lease was a contract. Therefore, there must be a contract in the nature of an assent by the landlord to the surrender of the premises by the tenant before it can be said that there has been a surrender of the premises.” Id. at 543.

Perhaps more than the Wilson sentence, the term “operation of law” used in Eidelman to explain the force and effect of the evidentiary conclusion of a preemptive reletting standing alone, misled the trial judge. The term “operation of law,” especially in its comparative example context used in Eidelman, expresses the manner in which rights and liabilities devolve upon a person by the mere application to a particular transaction of the established rules of law, without the act or cooperation of the party himself. See Black’s Law Dictionary 1243 (4th ed. 1968). It is only one evidential inference, conclusive when standing alone, of an effervescent intent. As noted in Eidelman, supra at 544, quoting from O’Neil v. Pearse, 87 N.J.L. 382, the operation of law effecting a surrender by such act occurs only when the minds of the parties to the lease concur in common intent and

“execute that intent by acts tantamount to a stipulation to put an end thereto ....”

As pointed out by the factual references of the trial judge on the one hand, as opposed to the early correspondence indicative of a contrary intent on the other, the issue is a factual one to be weighed by a factfinder. We express no opinion upon the factual inferences and conclusions the judge drew to bolster the result he reached “as a matter of law.” Furthermore, we need hardly state that although the judge erred in granting summary judgment to appellees, he correctly denied it to appellant.

A third, less involved issue arose and is left unsettled. The judge granted appellant summary judgment as to appellees’ liability for rent from May 1, 1975, until October 31, 1976, immediately preceding the C.E.L., Inc. lease, but left open for trial the damages because of a conflict in evidence as to the amount of mitigation from rental paid by a tenant preceding the C.E.L., Inc. lease. At the trial which followed the summary judgment decisions, it was shown that the appellant permitted C.E.L., Inc. to enter the premises from September 10, 1976, to the commencement of its lease on November 1, 1976, to prepare for its tenancy. A judgment was entered on appellant’s behalf for rent from May 1, 1975, until October 31,1976. The trial judge allowed defendants a set-off for rent during the preparatory period of September 10,1976, through October 31, 1976, not because he considered this to be tantamount to surrender, but because plaintiff “divested the tenant of the use of the property for that period of time.”

Appellant’s complaint is presumably predicated upon a rather nebulous guideline. He argues that:

“During this time, C.E.L. made only minor renovations.”,

and presumably concludes that if only minor renovations occur, divestiture cannot. That, of course, is a non sequitur. This is obviously a question of evidentiary sufficiency upon which we cannot say the trial judge was clearly erroneous. Md. Rule 1086.

Appellee also noted an appeal. Presumably, although not explicitly, he appealed from the money judgment entered for the amount of $8,400 on October 27, 1978, and from the summary judgment entered as to appellees’ liability for rent from May 1,1975, until October 31,1976. Appellees have not supplied us with any argument or statement referring to their cross-appeal either in their brief as appellees or by separate brief as cross-appellants. We will therefore dismiss it sua sponte. Md. Rule 1035 a 2, b 7.

Final judgment from which the appeal was taken was entered on November 2, 1978. Procedurally, however, the issues were concluded below step by step at hearings prior to the entry of judgment absolute. For purposes of clarifying our mandate, we will address each step in the order concluded prior to the judgment appealed from. On July 31, 1976, an order was filed:

1. Granting appellant’s motion for summary judgment as to appellee’s liability for rent from May 1, 1975 until October 31, 1976. The cross-appeal having been dismissed for the reasons noted, the order will stand in that regard; however,
2. the order also granted summary judgment to appellee for all time after November 1, 1976. That order was in error and judgment thereon will be reversed.

As noted, the October 27,1978, hearing on damages from May 1, 1975, until October 31, 1976, was concluded by entry of judgment nisi in the amount of $8,400. For the reasons above set forth, so much of the judgment absolute related thereto will be affirmed.

It is apparent then, that that which we reverse and remand for retrial is only the summary judgment granted appellees on July 31,1978, which decided “as a matter of law” that the parties had respectively surrendered and accepted surrender of the premises, thus terminating the original breached lease. That issue, as we have held, is a factual one and must be decided by the court (which in this case was also the factfinder) on the basis of the evidence presented.

Judgment affirmed in part and reversed in part; case remanded for retrial pursuant to this opinion.

Cross-appeal dismissed.

Costs to be divided equally.


text:
    CHRISTINE IRENE CHANCE v. RODNEY MICHAEL LaPAUSKY
    [No. 1278,
    September Term, 1978.]

      Decided July 11, 1979.

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

      Joseph B. Spillman, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Joel J. Rabin, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and C. Eugene Schmidt, Assistant State’s Attorney for Baltimore County, on the brief, for appellant.
    No appearance or brief for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The County of San Diego filed a petition for support of a child under the Uniform Reciprocal Enforcement of Support Act (URESA). The petition ultimately reached the Circuit Court for Baltimore County, the jurisdiction in which appellee resides.

The petition was filed by San Diego County as the provider of public support for Tracy M. LaPausky, daughter of Rodney Michael LaPausky and his former wife, Christine Irene Chance, in whose stead San Diego has brought the action under § 8 of the Uniform Act, Md. Ann. Code art. 89C.

“Whenever the State or a political subdivision thereof furnishes support to an obligee it has the same right to invoke the provisions hereof as the obligee to whom the support was furnished for the purpose of securing reimbursement of expenditures so made and of obtaining continuing support.”

Appellee answered the petition but denied that he owed the child a duty of support or that he had refused or had neglected to support the child. He alleged that upon his divorce May 16, 1974, Christine Chance was provided both the custody and the obligation of support and maintenance of the child. At a hearing before Judge William Buchanan, Sr. on October 24, 1978, he submitted a certified copy of the decree from the Circuit Court of Baltimore City. The decree stated that Christine I. LaPausky

“ ... shall have the guardianship and custody of TRACY MARIE LAPAUSKY, the minor child of the parties in this proceeding, be chargeable with her support and maintenance, accounting from the date of this Decree, ... all subject to the further Order of this Court in the premises.” (emphasis added).

Appellee contended that there is no enforceable duty of support “imposed or imposable” upon him in this State, which is prerequisite to indebting him to San Diego. The statute reads:

“Duties of support applicable under this article are those imposed or imposable under the laws of any state where the obligor was present during the period for which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.” Md. Ann. Code art. 89C, § 7.

The term “duty of support” is defined in subsection (g) of § 2 of the Uniform Act:

“(g) ‘Duty of support’ includes any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial separation, separate maintenance or otherwise.”

The trial judge denied the petition, stating that “I am going to give full faith and credit to my own state’s decree.”

The Attorney General has appealed on behalf of San Diego contending that the

“[ljower court’s conclusion that the existence of a Maryland divorce decree precludes action brought under the Uniform Reciprocal Enforcement of Support Act is erroneous.”

That contention and appellant’s arguments tiptoe around the issues that we must decide, but never quite come to grips with them. The State argues that:

“The remedies in Article 89C are available even though a Maryland Court has granted a decree divorcing the resident obligor. ”,

which is a generally proper conclusion but does not address the problem at hand. Before URESA provides a remedy, there must be an imposed or imposable duty upon appellee to support. Md. Ann. Code art. 89C, § 7. Only if the responding state finds a duty of support may it order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to such order. Md. Ann. Code art. 89C, § 23. There is no question that these remedies are available if a court decree has expressly imposed an obligation of support, or even if, sub silentio, it leaves a statutory obligation to support as an imposable possibility. See, e.g., Md. Ann. Code art. 72A (charging both parents with a joint and several support obligation). However, a divorce or other decree may circumscribe that obligation for either or both parents, thus leaving no § 7 obligation “imposed or imposable.” State ex rel. Arvayo v. Guerrero, 21 Ariz. App. 178, 517 P. 2d 526 (1973) (interpreting the wording and intent of the Uniform Act).

Where the decree avoiding the support obligation is not appealed before it becomes enrolled, the propriety of that decree is beyond the jurisdiction of the URESA court, Guerrero, supra, and there is no duty to support under the Act. The purpose of the Act is to improve and extend “the enforcement of duties of support.” Md. Ann. Code art. 89C, § 1. It does not address the creation or resurrection of those duties where none exist or where an existing duty has been relieved. The Uniform Commissioner’s Prefatory Note (1958) pointed out that:

“Its purpose has been, and is, not to create new duties of support but to provide by reciprocal legislation for the enforcement, across state lines, of duties of support already existing.” Uniform Enforcement of Support Act, 9 U.L.A. 885-886 (1978).

In the case at bar, then, the crucial question is an interpretive one, i.e., whether LaPausky’s divorce decree implicitly discharged him from the statutorily imposable duty to support his child absent express negative language so stating. It elliptically addressed only Mrs. Chance’s obligation, stating that she

“ ... shall ... be chargeable with [the child’s] support and maintenance____”

It was silent as to Mr. LaPausky.

Since both parents were already charged statutorily with the support of the child, there is no purpose inferable for singling out Mrs. Chance for a recitation of her responsibility unless the judge intended to discharge Mr. LaPausky from his then extant joint and several statutory obligation. If that were not the purpose, the court’s decree would simply be mouthing the statutory obligation of one parent with an unexplainable silence as to the other; that would be an absurd construction. If we are not to indulge in absurd statutory interpretations, cf. B. F. Saul Co. v. West End Bank, 250 Md. 707, 722 (1968); Sanza v. Md. Board of Censors, 245 Md. 319, 340 (1967), surely the same rule holds true for judicial decrees.

Unless and until the divorce decree is modified to resurrect a duty to support, there is no obligation to support imposed or imposable; consequently nothing exists to enforce by a URESA action. In passing, we note that San Diego admitted in its brief that it was not a party to the divorce action, and it is not “attempting to proceed in the divorce action in Baltimore City.” Even if it was so proceeding, it could hardly succeed under the statute. For San Diego to attempt such action would be solely for the purpose of creating a duty to support where none now exists. While the statute permits San Diego to stand in Mrs. Chance’s shoes, it may only do so

“ ... for the purpose of securing reimbursement... and of obtaining continuing support.” Md. Ann. Code art. 89C, § 8. (emphasis added).

The conjunctive prerequisite of obtaining continuing support for the purpose of securing reimbursement, does not enlarge the expressed purpose of the Act beyond enforcement of existing obligations any more than does the § 3 provision that the remedies in the Act are “in addition to and not in substitution for any other remedies.” See Guerrero, supra.

In summation, before San Diego can have a remedy under URESA, there must be a duty imposed or lawfully imposable upon appellee which gives San Diego a right to a remedy under the Act. As the situation presently exists, by virtue of the prior divorce decree, there is no such duty imposable unless the decree is modified upon petition by Mrs. Chance. It obviously follows there is no right for San Diego to collect something Mr. LaPausky has no lawful obligation to pay.

Judgment affirmed.

Costs to be paid by appellant.

      . At argument appellant contended that § 29 of the Uniform Act permitted the California order to prevail over the Baltimore City divorce decree. The language relied upon is, however, inappropriate if not directly contrary to appellant’s position.
      “No order of support issued by a court of this State when acting as a responding state shall supersede any other order of support
      First, there is no “order of support issued by a court of this State when acting as a responding state.” Second, there is no other existing order of support against appellee. If the divorce decree is so interpreted, § 29 would appear to say that no order of the Baltimore City court (as responding state) could supersede the “other order of support” (the divorce decree).


author: Moylan, J.,

text:
    RODNEY KING PULLEY v. STATE OF MARYLAND
    [No. 1291,
    September Term, 1978.]

      Decided July 11, 1979.

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

      Thomas J. Saunders, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Sam Brave, Assistant State’s Attorney for Baltimore City, on the; brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

At issue is the constitutionality of Maryland Rule 736 as applied to the appellant in this case, Rodney King Pulley. In what amounted to his fourth jeopardy, the appellant was convicted by a Baltimore City jury, presided over by Judge Elsbeth L. Bothe, of felony murder and the use of a handgun in the commission of a felony. The significant contention, of the three here raised by the appellant, is that Judge Bothe erroneously refused to rule on the merits of the appellant’s motion to dismiss the indictment on grounds of double jeopardy..

Before moving on to the law, we would set the stage factually. The murder of Edsell Phillips, a resident of Ohio, occurred on October 16, 1974, near the Derby Bar on Park Heights Avenue in Baltimore City. The appellant came to trial before a Baltimore City jury, presided over by Judge James A. Perrott, on October 11, 1976. On October 13, a State’s witness, on direct examination, apparently made an allusive reference to an unrelated criminal act on the part of the appellant. The defense moved for a mistrial and Judge Perrott granted the motion. On the very next day, October 14, a retrial before a new jury was begun. The docket entries reflect no filing of a double jeopardy claim as a bar to the retrial. Indeed, since the mistrial was declared on the motion of the appellant, only prosecutorial overreaching would have been available as grounds for such a claim. In any event, there is no record of any such motion, hearing or ruling thereon. The second trial, in turn, was aborted on October 22 when Judge Perrott declared a mistrial because of a hung jury. The case was put back upon the tracks for yet a third occasion before another Baltimore City jury, presided over on this occasion by Judge J. Harold Grady, on January 24, 1977. Again, there is no indication in the record that double jeopardy was ever interposed as a plea in bar to this third jeopardy before Judge Grady. There was, of course, manifest necessity for the second declaration of mistrial under the authority of United States v. Perez, 22 U. S. (9 Wheat.) 579, 6 L. Ed. 165 (1824). This third jeopardy went forward all the way to a verdict of guilty of both first-degree murder and the use of a handgun. On appeal, we reversed the conviction on the grounds that a properly requested instruction on the defense of alibi was not given. Pulley v. State, 38 Md. App. 682, 382 A. 2d 621 (1978). This appellate reversal, on grounds other than the legal sufficiency of the evidence, would not bar a retrial on double jeopardy grounds. Ball v. United States, 163 U. S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896); Burks v. United States, 437 U. S. 1, 98 S. Ct. 2141, 57 L.Ed.2d 1 (1978). Our mandate was filed on March 21, 1978.

The appellant has been represented continuously by the Office of the Public Defender. Pursuant to Maryland Rule 736, a number of motions were filed on April 17, 1978, including a motion for a speedy trial; a motion to be transferred from the Maryland Penitentiary to the “court side” of the Baltimore City Jail; a motion to exclude any in-court identification tainted by impermissibly suggestive extrajudicial identifications and a motion to suppress any statement or confession. On April 17, as well, an application for bail reduction was filed and a hearing was held on April 28. A bill of particulars was requested on May 25 and a demand for discovery was filed on May 26. It is against this background that we view the motion to dismiss on double jeopardy grounds which was not filed until August 2, 1978, the very morning when the fourth trial was about to proceed.

Judge Bothe granted the State’s Motion Ne Recipiatur and refused to entertain, upon its merits, the appellant’s motion to dismiss, because it was not timely filed according to the clear command of Maryland Rule 736. Rule 736, which became effective on July 1, 1977, and which replaced its predecessor Maryland Rule 725 d, provides, in pertinent part:

“a. Mandatory Motions.
A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
1. A defect in the institution of the prosecution;
2. A defect in the charging document, other than its failure to show jurisdiction in the court or to charge an offense which defenses can be noticed by the court at any time;
3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;
4. An unlawfully obtained admission, statement or confession;
5. A motion for joint or separate trial of defendants or offenses.
b. Time for Filing Mandatory Motions.
A motion filed pursuant to section a of this Rule shall be filed 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), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.”

For purposes of computing the running of the time for the filing of mandatory motions under Rule 736 b, we note that the appellant was continuously represented by the Office of the Public Defender up to, including and subsequent to the time when the mandate came down from this Court reversing his conviction and remanding for a new trial. The series of motions filed pursuant to Rule 736 on April 17, 1978, were filed for the appellant by the Public Defender’s Office. More specifically, they were filed by Assistant Public Defender Douglas N. Sharretts. Even though Mr. Sharretts was de facto in the case certainly as early as April 17, 1978, the docket entries reflect that he formally filed his appearance as counsel on May 8, 1978, replacing Assistant Public Defender Earl L. Carey, Jr., who had earlier represented the appellant. Even taking that later date of May 8, 1978, it is clear that more than 30 days went by between the filing of the appearance of counsel on May 8 and the making of the motion to dismiss on double jeopardy grounds on August 2. It is also clear that at the hearing before Judge Bothe on August 2, no explanation was offered as to why this motion had not been timely filed. In short, no “good cause” was shown to relieve the appellant of the otherwise foreclosing effect for noncompliance with the filing deadline under Rule 736 b.

It is, moreover, clear that a motion to dismiss on double jeopardy grounds is one of those preliminary motions contemplated by Rule 736 a 1. The committee note to this new rule states:

“Subsection a 1 and a 2 include, but are not limited to allegations of improper selection and organization of the grand jury, disqualification of an individual grand juror, unauthorized presence of persons in the grand jury room, former jeopardy, former conviction, acquittal, statute of limitations, immunity and the failure of the charging document to state an offense.” (Emphasis supplied)

With respect to the overall constitutionality of Rule 736 in terms of deeming as waived any mandatory motion not timely filed, we came to grips with this problem in Kohr v. State, 40 Md. App. 92, 388 A. 2d 1242 (1978). Although dealing with a related pretrial motion to suppress physical evidence,. Judge Liss, speaking for this Court, spoke of the general constitutionality of the rule and its sanction at 40 Md. App. 98:

“Such is not the case, however, under new Rule 736. It is clear that the Court of Appeals in adopting new Rule 736 decided, as a matter of judicial policy and administration, to make the Maryland rule parallel to Rule 12 of the Federal Rules of Criminal Procedure. Both rules are identical in that they require that motions to suppress be filed pre-trial and both consider a failure to raise timely objections to the admissibility of unlawfully seized evidence to constitute a waiver. This does not amount to a shifting of burdens since the state still has the duty of establishing such probable cause to justify the search and seizure or that the search and seizure falls within one of the several recognized exceptions to the warrant requirement. The defendant is still afforded an opportunity to litigate the issue and the requirements of Rule 736 do not amount to an unconstitutional burden on the accused.”

See also Jones v. State, 42 Md. App. 209, 400 A. 2d 1 (1979). In dealing with a similar forfeiture of right provision under what is now Maryland Rule 735 d, involving a procedural forfeiture of the right to trial by jury, Chief Judge Murphy was very clear for the Court of Appeals in State v. Jones, 270 Md, 388, 393, 312 A. 2d 281 (1973):

“Under the prevailing rule an accused has no absolute right to withdraw his waiver of a jury trial; whether it will be permitted is a matter committed to the sound discretion of the trial court.”

The appellant first attacks broadly the notion that waiver, under Rule 786 or otherwise, can ever be anything other than the intentional relinquishment or abandonment of a known right under Johnson v. Zerbst, 804 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1988). Kohr v. State, supra, is very explicit on this point at 40 Md. App. 99-100:

“Appellant urges that the burden is on the state to show, on the record, that the defendant alleged to have waived a constitutional right has made a knowing and intelligent waiver. Johnson v. Zerbst, 804 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1988). While this is correct concerning the waiver of a number of rights, it does not apply to a failure to object affirmatively to the admission of evidence by way of a pre-trial motion. In the case of a Fourth Amendment claim it is the defendant who must initially object to evidence which he believes was illegally obtained. A failure to object by way of a pre-trial motion, where required by the Rules, has been held to be an effective waiver of Fourth Amendment rights. See: United States v. Sisca, 503 F. 2d 1387 (2d Cir. 1974), cert. denied, 419 U. S. 1008.”

See also Jones v. State at 400 A. 2d 4.

Indeed, recent scholarship has pointed up the fallacy and the inherent confusion in referring to issues such as that now before us as questions of “waiver.” Careful academic analysis, and the Supreme Court decisions on which it is based, distinguish between waiver, on the one hand, and “procedural default” or “procedural forfeiture,” on the other hand. See generally Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.L.Rev. 1214 (1977); Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 U. of Pa.L.Rev. 473 (1978); Hill, The Forfeiture of Constitutional Rights in Criminal Cases, 78 Colum. L.Rev. 1050 (1978). As Westen, supra, points out at 1214:

“[A] defendant can lose his constitutional defenses not only by waiving them, but also by ‘forfeiting’ them. The significant difference between waiver and forfeiture is that a defendant can forfeit his defenses without ever having made a deliberate, informed decision to relinquish them, and without ever having been in a position to make a cost-free decision to assert them. Unlike waiver, forfeiture occurs by operation of law without regard to the defendant’s state of mind.”

Even with respect to the most basic of constitutional rights, the Supreme Court has not been averse to declaring these rights forfeit when the procedural requirements for raising them have not been satisfied. In Davis v. United States, 411 U. S. 233, 93 S. Ct. 1577, 36 L.Ed.2d 216 (1973), the Supreme Court refused to allow the federal courts even to consider the question of whether a defendant had been deprived of his right to a grand jury free of systematic exclusion on racial grounds. The Court ruled that under the provision of Rule 12 (b) (2) of the Federal Rules of Criminal Procedure, a motion “based on defects in the institution of the prosecution or in the indictment” may be raised only before trial and that the failure to raise such motion in timely fashion “constitutes a waiver thereof.” In Kohr v. State, supra, Judge Liss pointed out how Maryland Rule 736 was modeled upon Rule 12 of the Federal Rules of Criminal Procedure. The Supreme Court upheld the right of the states to promulgate similar rules of procedure and to insist that defendants follow them at the risk of seeing even constitutional claims declared forfeit in Francis v. Henderson, 425 U. S. 536, 96 S. Ct. 1708, 48 L.Ed.2d 149 (1976). See also Michel v. Louisiana, 350 U. S. 91, 76 S. Ct. 158, 100 L. Ed. 83 (1955).

Notwithstanding the constitutionality of the forfeiture of claims generally for failure to raise them in timely fashion, the appellant urges that a claim based upon the right against double jeopardy is in a class by itself and cannot be so forfeited. He predicates this argument for special treatment upon a combination of Abney v. United States, 431 U. S. 651, 97 S. Ct. 2034, 52 L.Ed.2d 651 (1977); Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974); Claybrooks v. State, 36 Md. App. 295, 374 A. 2d 365 (1977), and Gray v. State, 36 Md. App. 708, 375 A. 2d 31 (1977). The reliance is misplaced. None of those cases is directed to the question of the procedural forfeiture of a claim. They all deal with a decision as to double jeopardy on the merits and the right of a defendant ordinarily to take an immediate appeal from an adverse decision upon those merits. Abney v. United States, supra, interpreting federal statutes dealing with the right to appeal, and Neal v. State, supra, interpreting the Maryland statutory provisions on the right to appeal, both held that a decision on the merits of a double jeopardy claim is a “final decision” permitting the filing of an immediate appeal. The excellent analysis of Chief Judge Gilbert for this Court in Claybrooks v. State, supra, followed shortly thereafter by Gray v. State, supra, simply pointed out that a trial judge could not evade the command of Neal v. State simply by deferring his ruling on the merits of the double jeopardy claim. Both Claybrooks and Gray pointed out that if a motion to dismiss based on double jeopardy grounds is timely filed before trial, the defendant is entitled to a ruling upon that motion before trial so that he may take an immediate appeal subject only to the limitation that the point not be patently frivolous. In the case now before us, we are not dealing with the merits of double jeopardy at all. We are dealing with procedural forfeiture, pure and simple. The failure to make this mandatory motion within the prescribed time limits, absent good cause to forgive the dereliction, bars the claim where the claim arguably is pregnant with constitutional merit just as surely as where the claim is utterly bereft of merit. To rule otherwise would strip Rule 736 of its intended salutary effect. There is nothing in our case law or in the federal case law compelling, or even suggesting, such a holding. We affirm the ruling of Judge Bothe in refusing even to consider the claim upon its merits.

The remaining two contentions will not detain us long. The appellant claims that he was erroneously implicated by the confessions of two non-testifying codefendarits in contravention of Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968). The short answer to this contention is that no contemporaneous objection was made when the confessions where testified to. Following reference to these in closing argument by the State, the appellant asked for a curative instruction. He received a very adequate curative instruction (assuming one was required) and, thus, received everything he asked for. There is, therefore, nothing remaining to complain about.

The appellant’s final contention is that damaging admissions made by him to a police undercover agent should not have been admitted because the undercover agent did not give him Miranda warnings. It is difficult to imagine an undercover agent giving Miranda warnings without “blowing his cover.” It is clear that what was involved here was not custodial interrogation as to render Miranda even applicable. See Hoffa v. United States, 385 U. S. 293, 87 S. Ct. 408, 17 L.Ed.2d 374 (1966); Hopkins v. State, 19 Md. App. 414, 424, 311 A. 2d 483 (1973); Cummings v. State, 27 Md. App. 361, 381-382, 341 A. 2d 294 (1975).

Judgments affirmed; costs to be paid by appellant.

      . Curiously, the objection to the fourth jeopardy was not predicated upon the second jeopardy (which claim, of course, would have failed under United States v. Perez, supra) or the third jeopardy (which, of course, would also have failed under Ball v. United States, supra) but went all the way back to the first jeopardy of October, 1976. Thus, two years later and two uncontested jeopardies removed, the specter of that first mistrial was raised. Its merits are not before us because the procedural forfeiture issue is unaffected by whether the claim itself had compelling merit or was a transparent sham.

      . Judge Bothe found, moreover, that the rearraignment following the remand had occurred almost four months prior to August 2.


author: Wilner, J.,

text:
    HAROLD W. LADY, Trustee v. PRINCE GEORGE’S COUNTY, MARYLAND
    [No. 1300,
    September Term, 1978.]

      Decided July 11, 1979.

    The cause was argued before Thompson and Wilner, JJ., and James S. Getty, Associate Judge of the Fourth Judicial Circuit, specially assigned.

      Jess Joseph Smith, Jr., for appellant.

      Michael P. DeGeorge, Associate County Attorney for Prince George’s County, with whom were Robert B. Ostrom, County Attorney, Carl A. Harris, Deputy County Attorney, and Karel C. Petraitis, Associate County Attorney, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

The question before us is a simple one: when a taxpayer overpays his county property taxes, is he entitled to interest on the overpayment when he obtains a refund? Under the current state of the law, the answer is “no”.

Appellant, as trustee, was the owner of a certain tract of land and improvements in Prince George’s County. On September 27, 1976, he dutifully paid $17,837.68 in property taxes to the county, this being the proper amount then levied for the 1976-77 taxable year. Subsequent to that payment, appellant sold the property to Private Mortgage Investors Trade Association, Inc.; however, because of a computer error, the county had failed to record the tax payment, and thus showed the year’s taxes as being due and unpaid. In order to consummate the sale and have the deed recorded expeditiously, therefore, appellant was obliged to pay the taxes again. See Real Property Article, § 3-104. This he did on October 29,1976, with a check for $15,324.48 for the taxes, and a separate check for $524.89 for interest and penalty.

On April 20, 1977, appellant filed a claim for refund of the $17,837.68 overpayment, plus the interest and penalty of $524.89 that he had paid, plus interest on both amounts at the rate of 6% per annum. The county denied the claim because it had already refunded the overpayment to appellant’s grantee. Appellant appealed this denial to the Maryland Tax Court, but prior to a decision by that tribunal, he filed a collateral action in the Circuit Court for Prince George’s County — a “Declaration and Prayer for Ancillary Injunctive Relief” — seeking an order compelling the county to make the refund to him. . With the county’s concurrence, proceedings in the Tax Court were stayed pending the outcome of the judicial proceeding.

One of the complicating features of the case was that the grantee who had received the refund was impleaded by the county, and it maintained its right to the money by virtue of its contract with appellant. To that extent, the county found itself in the position of admitting that it owed someone the overpayment, but not being sure who that someone was. On November 2, 1978, the court decided that issue by entering judgment in favor of appellant for $17,837.68 — the exact amount of overpayment — without interest or costs. The county promptly paid that amount. Pursuant to appellant’s motion, the court, on November 30, 1978, entered an additional judgment in appellant’s favor for $524.89 — the interest and penalty previously paid by him — plus interest on that amount at the annual rate of 6% since its payment by appellant on October 29, 1976. The court denied appellant’s request for interest on the $17,837.68, and that’s what this appeal is all about.

The issue is not very complicated. It is a matter of statutory construction, and boils down initially to which of two statutes applies to this situation. Appellant seeks to hang his hat on Md. Anno. Code art. 81, § 261. That statute, captioned “Refunds”, provides in relevant part that “[u]pon final determination of any appeal, any money paid by the taxpayer in excess of the amount properly chargeable under the determination, shall be refunded with interest at the rate of six per cent. (6%) per annum from the date of payment to the date of refund.” (Emphasis supplied.) Appellant construes the words “any appeal” very broadly, as including the instant proceeding, and thus argues that the county is liable for the interest at 6%. The county, on the other hand, thinks that this proceeding was not “any appeal”, and maintains that § 261 is therefore not applicable. The relevant statute, it says, is § 214 of article 81, read in the light of § 218 of the same article. The pertinent provisions of those statutes are as follows:

§ 214. “Whenever any person shall claim to have erroneously or mistakenly paid to the county commissioners of any county, or to the collector for such county, or to the collector or other official of any municipality, or to the Mayor and City Council of Baltimore, or the collector for Baltimore City, more money for ordinary county or city taxes than was properly and legally chargeable to or collectible from such person, he may file with the collector in any county or municipality or the appeal tax county (sic) in Baltimore City, a written application for the refund thereof, and if approved by such collector, or the said appeal tax court the said, county commissioners or the said municipal officials or the Mayor and City Council of Baltimore shall levy and pay to such person any money that was so paid. ” (Emphasis supplied.)
§ 218. All claims for the refund of special taxes, fees, charges, penalties or interest which may be allowed under the provisions of this subtitle shall, if no appeal is pending, be paid by the State, county or municipal agency authorized to collect the same out of any funds in the hands of such agency. Interest at the rate of six percent per annum shall be paid on such amounts refunded accounting from the date the taxes, fees, charges, penalties or interest so refunded were paid____” (Emphasis supplied.)

Section 6 of article 81 classifies taxes as either “ordinary” or “special”, and includes real estate taxes as “ordinary taxes.” Thus, claims the county, in contrast to § 218, which provides for interest on the refund of “special” taxes, § 214 makes no such provision with respect to the refund of “ordinary” county taxes, but requires instead only the refund of “any money that was so paid.”

The thrust of the county’s argument is that there is no common law right to the refund of taxes erroneously, but voluntarily, overpaid, much less interest thereon, that the entitlement to such refund (and the amount and conditions thereof) are based solely upon statute, and that such statutes are to be narrowly construed. It is upon this premise that the omission in § 214 to require interest becomes, for the county, significant.

A plain reading of the relevant statutes against the backdrop of their legislative history, the principles laid down by the Court of Appeals, and the rationales used to support differing decisions in other States, leads us to conclude that the county’s position is a valid one.

We start with Rapley v. Montgomery County, 261 Md. 98 (1971), where the Court reviewed much of the legislative and judicial history pertaining to the refund of overpaid taxes. The Court pointed out that, in sharp contrast to the situation applicable to disputes over Federal taxes, the preferred method of challenging a State or county tax in Maryland was by an action to enjoin its collection, rather than an action to recover an overpayment. Thus, it said at page 108, “[i]n the absence of express statutory warrant, we have laid a heavy hand on actions brought at law to recover taxes paid, even if paid under protest, when the taxpayer made payment without seeking injunctive relief to test the validity of the imposition.” Noting the impracticality of this preferred remedy — indeed to the point of quoting from Judge Markell’s dissent in Wasena Housing Corp. v. Levay, 188 Md. 383, 396 (1947), that it “amounts to a trick to tease taxpayers with an illusory remedy...” — the Court nevertheless clearly held fast to the rule that there was no right to a refund of overpaid taxes except as permitted by statute. The clearest expressions of this are seen at the beginning and at the end of the Opinion, where the Court said, respectively: “taxes voluntarily paid under a mistake of law, even though paid under protest, are not recoverable in the absence of express legislative sanction” (p. 100), and “[t]he only possible escape from this harsh rule is found in the case where the taxing statute itself provides for a refund.” (p. 111.)

Although, as noted in Rapley, legislative efforts at ameliorating “this harsh rule” date back at least to 1807, the fountainhead for our purposes is Laws of Md., 1929, ch. 226, for it was there that the Legislature (in the words of the Rapley Court) “first set up a comprehensive statutory scheme for the recovery of taxes erroneously or mistakenly paid.” 261 Md. at 109. More important, perhaps, it represents the first common enactment of what later became §§ 214 and 261 — the first enactment of both statutes in the same Act.

Chapter 226 was the end product of a legislatively created Tax Revision Commission and represented a general revision and recodification of the tax laws of the State. Because it was a comprehensive treatment and not a collection of piece-meal amendments, differences in language used in similar or analogous contexts are especially significant as an indication of legislative intent. There is, in other words, less chance of language differences — insertions here and omissions there — being merely the product of the draftsman’s style and whim and more chance that they are truly expressive of deliberate legislative policy.

Chapter 226, as codified in the 1929 Supplement to the 1924 Code, divided article 81 into six major divisions: Rules of Construction, Classification of Taxes, Ordinary Taxes, Special Taxes, General Provisions, and Alternative Procedure as to Tax Sales. Among the “General Provisions” were §§ 152 and 153, comprising the subheading “Refund of Taxes” and §§ 182-188, comprising the subheading “Appeals”. Section 152, a predecessor of present § 213, dealt with the refund of State taxes. It called upon the Comptroller and the Treasurer, prior to each session of the General Assembly, to prepare a list of all persons who erroneously or mistakenly paid into the Treasury more money for State taxes than was properly and legally chargeable to them, and to certify that list “with the amount of such taxes” to the Governor. The Governor was directed to “include the same” without alteration in the budget submitted to the Legislature.

Section 153, which dealt with county taxes and is a predecessor of current § 214, provided that whenever a person erroneously or mistakenly paid to the county more money for “taxes or other charges” than was properly and legally chargeable to or collected from such person, the county “shall rectify the error and immediately levy and pay to such person any money that was so paid. ” (Emphasis supplied.)

■ It is significant to note that both of these sections pertained to any payment erroneously or mistakenly made, without apparent limitation as to the nature of the error or the circumstances under which the overpayment was made, and that neither provided for the payment of interest on the overpayment.

Sections 182-188 — the subheading “Appeals” — by contrast dealt with a somewhat narrower situation. Section 182 authorized an appeal to the county commissioners (and counterpart bodies with respect to Baltimore City and other municipalities) “as to the assessment of any property or any unit of tax value, or as to the increase or reduction or abatement of any such assessment, or as to the classification thereof....” Section 183 permitted a person claiming to be aggrieved “because of any assessment or classification, or because of any increase, reduction, abatement, modification, change or alteration or failure or refusal to increase, reduce, abate, modify or change any assessment, or because of any classification or change in classification, or refusal or failure to make a change” on the part of the county commissioners to appeal to the State Tax Commission. Sections 184 and 185 dealt with procedures before the State Tax Commission, and sections 186 and 187 concerned procedures for judicial review of the Commission’s determination — i.e., a further appeal to the Circuit Court and ultimately to the Court of Appeals. Section 188 then provided:

“No appeal to the State Tax Commission ... and no appeal from the State Tax Commission to a Circuit Court, or from a Circuit Court to the Court of Appeals, shall stay or in any manner affect the collection or enforcement of the assessment or classification complained of; but upon the final determination of any such appeal any taxes which such determination may show to have been illegally collected, shall be to the extent of illegality forthwith refunded with interest, and the disbursing officers of the State and of the several counties ... are authorized and directed forthwith to make such refunds. ” (Emphasis supplied.)

It may be seen at a glance that these provisions, dealing with appeals, were directed at disputes over the assessment and classification of property — the proper valuation of property against which a tax rate would be applied — rather than with voluntary overpayments of the tax itself made in error. Indeed, as § 188 made clear, once the county commissioners made their determination, payment of the tax was no longer voluntary. The tax, calculated upon the assessment determined by them, had to be paid; collection would not be stayed by virtue of any further appeal. In contrast to the situation of a voluntary payment, albeit one made under protest, the inability to avoid payment at that point, even by resort to injunctive actions, made the payment of interest particularly appropriate in the event the taxpayer ultimately prevailed. The preferred method of challenging the tax by an action to enjoin its collection — i.e., the very rationale used to support the “common law” disentitlement to the refund of voluntary overpayments — was made unavailable in these cases by statute; and the quid pro quo for that was the allowance of interest.

Although article 81 has undergone revision and recodification since 1929, the substance and juxtaposition of these particular sections have not been materially changed. They still relate essentially to disputes over the assessment, valuation, and classification of property; and, if that is the nature of the dispute, the special procedure set forth in them is the exclusive remedy for the taxpayer. See Md.-Nat’l Cap. P. & P. v. Wash. Nat’l Arena, 282 Md. 588 (1978). Conversely, where the dispute involves not the assessment of property but the voluntary overpayment of the tax itself, the Court has concluded that the taxpayer’s remedy (if he has one) is not under these sections dealing with “Appeals” but under those sections dealing with “Refunds”. See White v. Prince George’s Co., 282 Md. 641, 653-54 (1978). The question there was the recovery of a “special” tax that had voluntarily been paid, and the Court held that the taxpayer’s exclusive remedy was under §§ 215-217 of article 81.

The controversy here, of course, does not concern the assessment, valuation, or classification of property — nor even, in reality, the amount of tax due. It is purely and simply a case of a voluntary overpayment, and by the same reasoning that is apparent from the holdings in Wash. Nat’l Arena and White, supra, it falls squarely and exclusively under § 214, and not under § 261.

Section 214, as noted, does not expressly provide for the payment of interest on a refund; and the question then is whether interest must be paid notwithstanding such omission. The principles that have been announced and applied with respect to the recovery of the tax itself — no recovery absent express legislative direction — would certainly seem equally applicable to the payment of interest; and this, as the county points out, is highlighted by the authorization of interest in the case of refunds of “special taxes” (§ 218) in contrast to the silence in that regard of § 214.

As pointed out in an Annotation, “Right to interest on tax refund or credit in absence of specific controlling statute”, 88 A.L.R.2d 823, et seq., the courts around the country are generally split on this subject. In the case triggering that annotation, Lakefront Realty Corporation v. Lorenz, 167 N.E.2d 236, 240 (111. 1960), the Illinois court described the division of authority this way (citations omitted):

“Many courts have held that where the taxpayer is entitled to a refund on an excess payment of taxes, he is likewise entitled to interest on the refund as a matter of course, provided no statute or public policy mitigates against it____The contrary view... is that interest cannot be allowed upon taxes that were illegally collected in the absence of a statute expressly providing for interest____The latter view has its antecedents in the rule that interest, being a creature of statute is recoverable only by statute or contract, and in the practical aspects of the circumstances that a tax collector, being a mere trustee of public funds collected for specific purposes, has no money to pay interest in the absence of statutory authority to establish a fund for that purpose.”

Some of the courts adopting the more liberal rule — allowing interest — have done so simply on grounds of fairness, that the State (or other taxing jurisdiction) should be treated no differently than any other defendant wrongfully withholding money. This type of reasoning has not found favor in Maryland, however, as witness the continued vitality (except as expressly repealed or diluted by statute) of the general doctrine of sovereign immunity. As did the Illinois court in Lakefront Realty Corporation, supra, we find the contrary view, not permitting the recovery of interest in the absence of express statutory authorization, to be the more persuasive one in light of the underlying pronouncements of the Court of Appeals and the nature of our own statutory scheme. Accordingly, we conclude that the judgment of the circuit court was correct to the extent that it “disallowed” appellant’s claim for interest on the amount of the tax that was overpaid.

Judgment affirmed; appellant to pay the costs.

      . Between September 27 and October 29, the assessment on the improvements was lowered, thus reducing the amount of tax actually owed on the property.

      . Laws of Md., 1959, ch. 757, which revised much of article 81, did away with the State Tax Commission, split the administrative and quasi-judicial functions formerly performed by it, and distributed them, respectively, to the State Department of Assessments and Taxation and the Maryland Tax Court. Part of the revision encompassed by that Act was the enactment of new § 260, which permits a taxpayer in the appeal process to avoid immediate collection — le., to obtain a stay — by posting a bond guaranteed by a corporate surety. Although to some extent this may undercut the presumed rationale for originally permitting the recovery of interest in these cases, the legislative policy of allowing such interest nevertheless remained intact.

      . At least one court adopting the liberal rule specifically referred to the taxpayer’s inability in that State to challenge the tax by suit for injunctive relief, thereby making his payment of the disputed tax compulsory. See Chicago, St.P.M. & O.Ry. Co. v. Mundt, 229 N. W. 394 (S.D. 1930). As already noted, that is not the case in Maryland except for those disputes over assessments, valuations, or classifications, with respect to which interest on refunds is authorized by statute.


text:
    BING FA YUEN and SHUI PING WU v. STATE OF MARYLAND
    [No. 1317,
    September Term, 1978.]

      Decided July 12, 1979.

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

      Barry H. Helfand for appellants.

      Deborah K. Handel, Assistant Attorney General, with whom were Stephen H, Sachs, Attorney General, AndrewL. Sonner, State’s Attorney for Montgomery County, and Irma S. Raker, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Bing Fa Yuen and Shui Ping Wu were convicted by a jury in the Circuit Court for Montgomery County of extortion, i.e., violating Md. Ann. Code art. 27, § 562. The indictments charged that they

“did verbally threaten Raymond NMN Lee to do injury to the person and property of Raymond Lee and Kam Chu Kwong with a view to extort....”

The initial contention of error, thought by appellants to have been committed at the trial, was the judge’s refusal to grant a “missing witness” instruction because Kam Chu Kwong (referred to as Stella Kwong) was never produced by the State to testify; however, appellants’ contentions are founded upon insubstantial support.

They begin by stating that:

“The witness, Kwong, was named as a victim in the indictment.”

As can be seen above, that is simply not correct. The victim of the crime was Raymond Lee, he who was threatened with a view to extort. Stella Kwong was never threatened with a view to extort although she was one of the subjects of threat and injury intended to coerce payment from Raymond Lee.

More significantly to the issue hére, appellants next contend that:

“She [Stella Kwong] was not accessible to counsel for two reasons: (1) She was in [under] the Federal Witness Protection Act, and (2) She refused to talk to counsel.”

Apropos of the prerequisite to a right to a missing witness instruction, appellants conclude that

“[t]he witness, almost a party, was therefore: (1) particularly available to the State, (2) her testimony concerned the basic issue in controversy, and (3) it would be natural for the party (State) to have called said witness in presenting its case. Brooks v. Daley, 242 Md. 185.”

Preliminarily, we note that the record does not indicate, nor do appellants suggest, that Stella Kwong was ever directly threatened or “extorted.” Her testimony would have at most been hearsay, repeating threats which Lee had told her were made to him. She was not, therefore, “almost a party,” nor would her testimony concern “the basic issue in controversy” other than in a tangential and perhaps inadmissible fashion.

More significant from a legal view are appellants’ contentions, based upon Brooks v. Daley, that Stella Kwong was “particularly available to the State” and that “it would be natural for the party (State) to have called” her. That is presumably an application of the rule appropriate to civil cases, but until Christensen v. State, 21 Md. App. 428 (1974), Maryland had never recognized the application of the rule to criminal cases.

Since our opinion in Christensen acknowledging the viability of the missing witness rule in criminal cases in Maryland, we have been deluged with every conceivable twist invoking application of that permissible inference, notwithstanding the Court of Appeals’ reversal of our opinion in that case upon its facts. Christensen v. State, 274 Md. 133 (1975). See Pierce v. State, 34 Md. App. 654, 658-659 (1977), cert. denied, 434 U. S. 907, 98 S. Ct. 307 (1977). In our Christensen, we definitionally relied upon the hoary Supreme Court case of Graves v. United States, 150 U. S. 118 (1893):

“ ‘The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.’ Graves v. United States, 150 U. S. 118, 121.” Christensen v. State, 21 Md. App. at 430.

The definition precludes from the rule’s operation those witnesses whose production is not “peculiarly” within the power of the party against whom the.inference may be drawn. Graves v. United States, 150 U. S. at 121. There is no such presumption or inference where the witness is available to both sides. Christensen v. State, 274 Md. at 134. Although Stella Kwong refused to speak with appellants’ attorney before trial, appellants admitted at argument that they were aware of her availability through the State’s Attorney’s office. They did not choose to subpoena her presumably relying upon the fact that the State had indicated that she would be a witness. But Stella was available to them by subpoena and they cannot excuse their failure to subpoena her by claiming to have relied on the State’s indication that she would be called. She was, therefore, “equally available” and so presumed unless appellants showed the court below that they had exhausted the avenues available to them to produce her. See Christensen v. State, 274 Md. 133.

Appellants added a final innovative twist to their requested instruction. They included the admonition to the jury that they should decide whether the rule should apply in this case at all.

“I would ask the Court to instruct the jury that evidence has been presented in this trial which indicates that a valuable witness who has knowledge of the facts in issue in this case was not called to testify. You are instructed that if either the State or the Defendant failed to call such a presumption rises that his testimony would have been unfavorable to the party who did not call him. It is up to you to decide which party should have naturally called this witness. This rule does not apply where the testimony of an uncalled witness is purely cumulative and the witness is not in a better position to know the facts than those witnesses who were called, nor does the rule apply where the reasons for not calling the witness are reasonable and proper.”

Initially, we note that the request was not directed specifically to the absence of Stella Kwong, it was a general statement, presumably, that the jury might apply the rule willy-nilly. Secondly, what is referred to as a presumption, here and in some of the cases, is really a permissible inference. The court cannot instruct a jury that it must presume unfavorable testimony upon the absence of a witness. The instruction — the advisory instruction in Maryland — is that the jury may infer. See United States v. Stulga, 584 F. 2d 142, 145 n. 1 (1978). The instruction becomes merely a highlighting of a significant void in a party’s case; but even in the absence of an instruction, the jury is not precluded from so inferring. Inferences of all types are always available to the factfinders.

The failure to grant an affirmative instruction does not remove the availability of the inference. As a consequence, whatever prejudice may usually come from not giving an advisory instruction is diminished, because the inferential thought process is still available. The prejudice is simply that such an inference is not given preferred instructional attention over any other inferences available from the testimony or absence of testimony.

Possibly for that reason, judges hesitate to grant the missing witness instruction; they do not wish to emphasize one legitimate inference over all others which the jurors have been told are solely within their judgment. It is also for that reason that the right to a missing witness instruction is circumscribed with the limitations, inter alia, that the testimony or evidence must be material, noncumulative and the witness “peculiarly” available. The judge must find all of these criteria applicable before he highlights the absence of the witness. In most instances, emphasis of one possible inference out of all the rest by a trial judge can be devastatingly influential upon a jury although unintentionally so. We see no error in the case before us.

The second question asked by appellants is:

“Did the Trial Court commit reversible error by refusing to inspect the State’s Attorney’s file plus police reports and investigative notes, not only after proper motion but after a prior promise to do so?”

The question asks too much. Appellants are neither entitled to such judicial discovery, nor did the court promise it.

Prior to and during trial, appellants sought discovery of statements made by witnesses or potential witnesses. Apparently with the possible exception of a statement of Stella Kwong, the specific material requested was given to appellants before the end of the trial.

Relying primarily on Brady v. Maryland, 373 U. S. 83 (1963), appellants contend that it was error for the trial court to refuse to examine, post-trial, the entire file of the State’s Attorney,, the police reports and investigative reports for discoverable evidence.

The issue took shape during the examination of the witness Hang Sang Leong. According to appellants’ brief:

“After direct but before cross-examination, defense counsel asked the Court to compel the State to produce any statement made by this witness so that counsel could cross-examine and determine if there was any exculpatory information or if there was any inconsistency of statements. The State was under a duty to supply counsel with Brady v. Maryland information. Counsel again pointed out that later in the trial the State was going to call her and Kwong and further that counsel wished to see their respective statements, [emphasis added].

To this, the court replied at T. 202:

THE COURT: Well, it is up to you. As I said before, I am not going to get into a position of ordering the State to produce statements. But if the trial results in a conviction I will examine those statements in camera. If there are inconsistent statements in them I will declare a mistrial.” (emphasis added).

However, appellants’ very next sentence concedes that:

“At T. 203, the copies were supplied and a Detective Stone’s notes were supplied.”

It is apparent then that appellants have no complaint as to the requested statement of Leong.

They go on to complain that when Raymond Lee was called, their request for Lee’s statement was initially denied, but was, presumably, voluntarily turned over on the next day of trial. According to appellants, however,

“[t]he statement was given too late to benefit counsel.”

Yet appellants made no effort to obtain a continuance or to recall the witness.

The thrust of appellants’ contention seems to be that the judge violated a promise to investigate, post-trial, all of the State’s files and notes. That is simply not so. The judge promised to examine “statements” in camera, meaning those statements requested at the time, i.e., Hang Sang Leong’s, Raymond Lee’s and Stella Kwong’s. Appellants received two of these statements and predicated their demand for the other upon Stella being called as a witness. In short, the judge complied with that which he promised.

Beyond that, appellants really received more than that to which they were entitled. Relying on Brady, they are in reality trying to invoke (or exceed) a Jencks discovery rule for Maryland, something we have expressly declined in the past. Carr v. State, 39 Md. App. 478, 481-482 (1978). Although the Court of Appeals’ reversal of our Carr in 284 Md. 455 (1979), carried us somewhat closer to Jencks than we had formerly thought, the Court of Appeals did not extend criminal discovery or Brady demands to “fishing expeditions” or require prosecutorial open files. Id. at 470-472. The extent of disclosure by the Court of Appeals seemed to hold with the United States v. Agurs, 427 U. S. 97 (1976), that disclosure is only required in three situations: 1) where the undisclosed evidence includes perjured testimony, knowledge of which is charged to the prosecution; 2) specific evidence, strictly material that might have affected the outcome of the case; 3) “The Court rejected a standard of requiring disclosure of ‘everything that might influence a jury’ because ‘the only way a prosecutor could [then] discharge his duty would be to allow complete discovery of his files as a matter of routine practice.’ ” Carr v. State, 284 Md. at 464-465. That certainly lays to rest the broad demand allegation expressed in appellants’ question.

As to the statement of Stella Kwong, appellants strain mightily to fall under the Brady umbrella, but the absurdity of considering this as a Brady issue is self-evident. The appellants have not alluded to any evidence or testimony that was 1) material, 2) demonstrably favorable, or 3) that was not already known to them — three more essential prerequisites to the successful invocation of the Brady doctrine. Moore v. Illinois, 408 U. S. 786 (1972); Younie v. State, 19 Md. App. 439 (1973). Even under discovery rules it would fall within the discretionary category, see Kardy v. Shook, J., 237 Md. 524, 540-541 (1965) (citing Whittle v. Munshower, 221 Md. 258, 261 (1959), although new Md. Rule 741 liberalized its predecessor (Md. Rule 728).

“It does not, however, make specifically available to defense counsel any statements made by witnesses.” Carr v. State, 284 Md. at 470-471.

Clearly then, it does not make available statements of non-witnesses. There was no promise. There was no Brady violation. There was no error.

The third issue gives us considerably more procedural concern.

“Did the Trial Court commit reversible error in refusing to allow defense counsel the opportunity to read to the jury accurate quotations from the transcript which had been prepared by the court reporter and supplied to counsel with daily copy?”

Because appellants did not have the closing argument transcribed for the record, we are unable to determine what, if any, effect this denial may have had. Blizzard v. State, 30 Md. App. 156, 169-170 (1976), rev’d on other grounds, 278 Md. 556 (1976); Md. Rule 1224 d 1; see also White v. State, 8 Md. App. 51, 54 (1969). That a request was generally denied is clear from what was transcribed for the record, however. Cf. Sergeant Co. v. Pickett, 283 Md. 284 (1978).

Actually the issue was fomented by and the request denied first to the State’s Attorney. Inferentially, appellants joined the request but along with the State, fell in the general denial.

“MS. RAKER: [prosecuting attorney]: I have one last question with respect to argument before the jury.
We all know the jury’s recollection controls and that they are the judges solely of the law and the facts. I would indicate to the Court that both Mr. Helfand and I have during the course of the trial ordered testimony of certain of the witnesses. It is my understanding that it is inappropriate to read from a transcript indicating that that is the official record, or that —
THE COURT: Yes, I do not permit that.
MR. HELFAND: Even with a comment that it is their recollection, but we have had it typed and it is
THE COURT: I’m not going to permit you to read the transcript of the proceedings. You can take exception to that if you wish.
MR. HELFAND: I would like to now and not have to do it later.
THE COURT: All right.
(Whereupon, jury enters the courtroom.)”

Our concern is the jealousy with which we attempt to safeguard a broad right of argument to counsel. See Wilhelm v. State, 272 Md. 404 (1974). We agree with the State’s well researched conclusion that most courts regard the propriety of reading portions of the transcript as resting within the sound discretion of the trial court. In light of the discretionary right for a court to read excerpts to the jury itself, Md. Rule 758 c; Veney v. State, 251 Md. 159, 172-173 (1968), it follows that such discretion to read may be delegated to counsel. Maryland obviously is in line with the courts regarding the right to read as a discretionary one. That discretion, however, must not be exercised arbitrarily so as to automatically preclude even a consideration of reading excerpts from the transcript.

For us to determine whether the stilted refusal here was an abuse, there should be some further proffer to indicate to the court that which is to be read, the purpose for the request and the need as seen by the party making the request. Just as discretion should not be arbitrarily withheld, it can not be unexplainedly demanded. We have indicated in the past that despite our general anxiety in providing breadth of argument,

“trial judges should be vigilant gently to excise blatantly irrelevant attempts by counsel to beguile jurors.” Pierce v. State, 34 Md. App. 654, 670 (1977).

Without some explanation accompanying the request, a trial judge can make no judgment on the validity of the use of reading from a transcript. Care must be used in permitting out of context reading of what purports to be an official record of what was said, but that concern may be alleviated by an appropriate instructional admonition.

Furthermore, as we have noted, without such proffer and without the context of the argument in which to view the discretionary withholding, we are unable to determine what harm may have been done by declining the request. For discretion to be abused, it must be harmful in the context of its exercise. Worthen v. State, 42 Md. App. 20 (1979). There is no contextually inferable harm indicated here even if a proffer had indicated an erroneous denial. If there had been error it was obviously harmless. Dorsey v. State, 276 Md. 638 (1976).

The final issue we will mention has no merit at all.

“Did the Trial Court commit reversible error by denying the appellants’ prohibitive preliminary motion in limine?”

Appellants have waived this issue by failing to object as the testimony which they sought to preclude came in during the trial of the case. Sutton v. State, 25 Md. App. 309, 316 (1975). “[T]here is substantial authority for the proposition that the denial of a motion in limine cannot in and of itself constitute reversible error.” Ory v. Libersky, 40 Md. App. 151, 164 (1978). We will not deviate from that position in the present case.

Judgments affirmed.

Costs to be paid by appellants.

      . On the contrary, however, if a party proffers sufficient evidence to the court indicating unavailability of a witness otherwise “peculiarly” within its power to produce, an instruction must be given that “no inference should be drawn by the failure ... to call [that person] as a witness.” Christensen v. State, 274 Md. at 141. The failure of a trial judge to grant the requested instruction is prejudicial error. Id. That case provides guidance for the granting of a preclusory instruction; however, we are concerned here with when a defendant will be prejudiced by a refusal to give a highlighting instruction stating that the inference is available.

      2. Reference to the transcript of the trial proceedings.

      . “MR. HELP AND [defense counsel]: Yes, if the police department had taken a statement from this witness and, particularly, Mr. Lee and Stella later will be called, and who have refused to talk to me, and have been under government protection, and I am entitled to see that statement before I even attempt to cross examine.
      I can’t see how that could hurt.”

      . Jencks v. United States, 353 U. S. 657 (1957).