author:
Bishop, J.,
      Moore, J.,

text:
    DOLORES DOBROW v. LAWRENCE DOBROW
    [No. 392,
    September Term, 1981.]

      Decided January 7, 1982.

    The cause was argued before Moylan, Moore and Bishop, JJ.

      Ferdinand J. Mack for appellant.

      John W. Kommeier for appellee.
   Bishop, J.,

delivered the opinion of the Court. Mooee, J., concurs and files a concurring opinion at page 472 infra.

Dolores Dobrow appeals from an order of the Circuit Court for Montgomery County, dated February 18, 1981, which reduced the $1,000 per month alimony that Lawrence Dobrow was required to pay appellant under a 1977 agreement entered into in open court. In 1980, the appellant sought to increase the alimony while the appellee endeavored to decrease it. Testimony thereon was taken before a domestic relations Master who, in a proposed Order of Modification, recommended a 30% reduction in alimony. The court adopted the Master’s recommendation on February 18, 1981.

In this Court the appellant asserts that a "simple recitation of the facts” demonstrates that the lower court abused its discretion or was clearly erroneous.

The appellant avers that neither the Master nor the Chancellor made any findings of fact which support the trial court’s decision to adopt the Master’s proposed order. Such allegations adequately raise the question of whether the Chancellor erred as a matter of law in adopting the Master’s recommendation after the filing of exceptions without in any way ruling on those exceptions. If error were committed, then there was a denial of procedural due process which would require that this case be remanded for further proceedings. Charles J. Cirelli & Sons v. Harford Co., 26 Md. App. 491, 497, 338 A.2d 400 (1975).

The Facts

Unlike appellant, we find no "simple recitation of the facts” in the record. To the contrary, the testimony of the parties and the statements in their respective briefs demonstrate that many "facts” remain in dispute. The category of disputed facts includes, inter alia, the actual income and expenses of the parties, the accurate resolution of which is essential to a determination of the change, if any, in their circumstances.

On January 26,1981, the domestic relations Master heard the testimony of the parties, but because of the appellant’s failure to comply with Md. Rule 596 f. 2. b., concerning the notice of intent to file exceptions to proposed recommendations, the Master made no written report respecting findings of fact. Nevertheless, in order for the Master to recommend a reduction in alimony, he was required to believe certain parts of the testimony and to reject other portions. The Master’s analysis of the testimony, however, was not before the Chancellor.

When the Master’s proposed order was presumably approved and stamped with a facsimile signature of the Chancellor on February 18,1981, the pleadings, exceptions, and the proposed order of modification were all that were in the court file. All that proposed order contained was the bald recitation, "This is a proper order to be passed in this case.” The record reveals that the exhibits in this case were not filed until the next day, February 19, 1981. Moreover, the transcript of the hearing before the Master was not placed in the record until May 21,1981, more than three months after the Chancellor’s facsimile signature was affixed to the order of modification. Thus, there was no evidence before the Chancellor at the time the proposed order of modification was "signed.” The Chancellor did not rule on the exceptions, nor did he give any reason for his failure to so rule.

Scope of Review

While the argument in this appeal is based on the testimony and exhibits submitted to the Master, none of that evidence is before us because none of it was before the Chancellor on the date of the order. In an action tried by a lower court without a jury, our appellate review addresses both the law and the evidence, but our scope of review is limited to the evidence upon which the Chancellor bases his conclusion to sign the order. Casson v. Joyce, 28 Md. App. 634, 638, 346 A.2d 683 (1975). A judgment of the lower court will not be set aside on the evidence unless clearly erroneous. Md. Rule 1086. Wenger v. Wenger, 42 Md. App. 596, 402 A.2d 94, cert. granted, 286 Md. 755 (1979), appeal dismissed at request of counsel. (Ct. App. January 2, 1980).

Since the Chancellor had no evidence before him at the time he signed the order, we have no evidence before us.

The Chancellor’s Duties

Assuming arguendo that the exceptions filed by appellant conformed to the requirements of the applicable rules, the Chancellor in this case did not perform the duties required of him. This Court, in Ellis v. Ellis, 19 Md. App. 361, 311 A.2d 428 (1973), considered an appeal from a child custody case in which the Chancellor filed an order based solely on the recommendations of a Master. We noted that the Chancellor had no evidence or testimony before him from which to make the determinations necessary for an intelligent judgment. We held in Ellis that the Chancellor’s order, in the absence of a factual predicate, constituted a miscarriage of justice. We said:

"Litigants in all judicial proceedings are entitled to have their cause determined ultimately by a duly qualified judge of a court of competent jurisdiction. Md. Const., Art. IV, § 1; Md. Code, art. 26, § 30; Md. Rule 71 a. While the system of resorting to Masters is one of long standing and undoubtedly has salutary effects resulting in the more expeditious dispatch of the judicial process, the system cannot supplant the ultimate role of judges in the judicial process itself.” 19 Md. App. at 365.

Relying on the Court of Appeals decision in Bris Realty v. Phoenix, 238 Md. 84, 89, 208 A.2d 68 (1965), for the proposition that a Master must make findings and suggest a disposition to the circuit court, we further said in Ellis, supra at 366, that the Chancellor’s action was no more than a pro forma adoption of the Master’s recommendation and, therefore, a violation of the appellant’s right to an independent review of the evidence.

More recently, this Court reiterated the requirement for a factual basis to a Chancellor’s order. We found that the requirement was met in Wenger, supra. There, we affirmed an order modifying child support and alimony because the Chancellor "made it very clear that his factual predicate was 'the record’ made before the Master as well as the report of the Master and the exceptions taken to it.” Id. at 599. The Master’s report in Wenger consisted of five pages of findings of fact and one and one-half pages of recommendations. We readily distinguished those circumstances from Ellis. Additionally, in Wenger, we stated that there would have been a ^'forbidden delegation of the judicial function” if the Chancellor had no choice but to affirm the Master’s recommendation. Id. at 603.

The Rules

We discussed in Wenger the application of Rule S 74. f. 4 of the "Court Rules — Sixth Judicial Circuit of Maryland,” which requires:

"Upon the filing of exceptions pursuant to this section, the proceedings shall be referred to the Court. The Court shall then rule upon the exceptions on the record, unless it shall determine that a hearing is required, in which event the Court shall refer the proceedings and the exceptions to the Assignment Office for the scheduling of a hearing on the exceptions and the notification of counsel.”

We said that the Chancellor fulfilled the requirements of the rule by "fashionfing] his ultimate decree on the basis of the report and its findings of fact, the exceptions taken to the report, and 'all relevant facts.’ ” 42 Md. App. at 598-99. See Terry v. Terry, 50 Md. App. 53, 435 A.2d 815, 817 (1981), in which the Circuit Court for Montgomery County complied with Sixth Circuit Rule S 74 and provided appellant with a hearing on exceptions taken to a Master’s recommendations. See also Rand v. Rand, 33 Md. App. 527, 538, 365 A.2d 586 (1976), vacated on other grounds, 280 Md. 508, 374 A.2d 900 (1977) .

As we previously stated, the appellant did not comply with Md. Rule 596 f, which requires a party in a domestic relations case to notify the Master to prepare and file a written report with the court. That section provides that within five days from the service of a notice of the proposed recommendation, a written intention to file exceptions shall be sent to the Master, with a copy to the clerk and all other parties. The failure to file the notice of intention to file exceptions is a waiver of the right to file exceptions.

In the case, sub judice, the actual exceptions themselves were timely filed with the clerk, with a copy sent to the other party, but no copy was sent to the Master. Inasmuch as the Master was not apprised of the exceptions, he had no way of knowing that a report was required. Md. Rule 596 f. 2. c. When exceptions have been filed, however, does the failure to conform with this notice of intention requirement in any way relieve the court of its obligation to base the issuance of its order or decree upon facts of which it has knowledge? We considered that question in Ellis, supra at 366-67, where we said:

"And rule or no rule, parties ... are entitled to have the carefully and intelligently exercised judgment of the Chancellor, as distinguished from that of the Master’s alone. Without having at least reviewed the testimony and evidence adduced at the hearing before the Master, the Chancellor clearly was in no position to fulfill his judicial obligation to the parties. Nor is this Court in a position properly to discharge its function ... when our appellate review of a Chancellor’s action is invoked, we do not merely review the findings and order of the Chancellor but must review the evidence before the Chancellor and make an independent assessment of it. We cannot here review the facts before the Chancellor because there were none.”

The United States Supreme Court in Swisher v. Brady, 438 U. S. 204 (1978) held that under Maryland law, Masters serve only as ministerial assistants to Chancellors; the Chancellors alone have the power to enter a binding judgment.

Conclusion

The domestic relations Master in the instant case mailed to the parties on February 4, 1981, copies of the proposed order of modification. The appellant timely filed exceptions. Md. Rule 596 f. 2. b. Supplemental exceptions were filed two days later. The documents allege specific error on the part of the Master, and request a de novo hearing before the circuit court. The Chancellor’s order of modification makes no mention of the exceptions. If the exceptions conformed with the rules, then clearly the Chancellor failed to act in accordance with the foregoing requirements. If the exceptions did not conform with the rules, then the Chancellor should have so stated. The Chancellor’s failure to rule on the exceptions, either as to their validity under the rules or as to their substance, denied the appellant procedural due process, and compels remand. Northover Center, Inc. v. Dart Drug Corp., 24 Md. App. 638, 641, 332 A.2d 729 (1975). See Craig v. Hebron Building and Loan Assn., 171 Md. 522, 525, 189 A. 218 (1937), cited in 60 C.J.S. Motions and Orders § 38, for the proposition that "a party is entitled to a decision of his motion.”

Because a question exists as to the effect of the appellant’s noncompliance with the rule requiring notice of intent to file exceptions, we shall remand the matter for a determination by the Chancellor of the validity of the exceptions and a modification of his order, if required.

We suggest the immediate end to the use of facsimile signatures on original orders and decrees. Without the original signature of the reviewing judge there is nothing in the record to support a conclusion that the Chancellor ever personally saw the order.

Case remanded pursuant to Md. Rule 1071 a for further proceedings.

Costs to be divided equally between the parties.

Moore, J.,

concurring:

I concur in the result reached in this appeal but consider it important to emphasize that, through no fault of the chancellor, we are without findings of fact in this case.

The fault is that of the appellant who failed to follow the "precise rubrics” of Maryland Rule 596 (1981 Cum.Supp.). Specifically, she neglected to notify the Master in writing of her intention to file exceptions, as required by subsection f.2. of the Rule. This is a serious omission, for two reasons: (a) Under 596 f.2. (b), unless there is a timely filing of the notice of intention to file exceptions, the right to fíle exceptions is waived; (b) under 596 f.2. (c), the Master is not required to file a "written report” (i.e., findings of fact) unless the aforesaid notice has been filed.

This serious omission is not cured by filing exceptions "with the clerk” under 596 h.l., as did appellant. That subsection requires that the exceptions be filed "within ten days from the filing of the written report.” But here, the written report was not filed by the Master. He was kept completely in the dark because no notice of intent was filed. No written report from him would be forthcoming without that notice.

It would seem that, on remand, all the chancellor need do is make a suitable inscription that the appellant’s exceptions are a nullity because the right to file them was waived.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    MAHER W. ISHAK v. FALLSTON GENERAL HOSPITAL AND NURSING CENTER et al.
    [No. 456,
    September Term, 1981.]

      Decided January 8, 1982.

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

      Joseph A. Schwartz, III, with whom were Francis S. Brocato and Brocato & Schwartz on the brief, for appellant.

      John J. Buckley, Jr., with whom were Brendan V. Sullivan, Jr., Williams & Connolly, James M. Kramon, Kramon & Graham, P.A., Alva P. Weaver and Lord, Whip, Coughlan & Green on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Through an opinion lacking excellence only in that it was wrong, the judge of the Circuit Court for Harford County sustained, without leave to amend, demurrers to a declaration filed by the appellant, Dr. Maher W. Ishak, against Fallston General Hospital and Nursing Center which, among others, are appellees here. The opinion synopsized that which the declaration had detailed in a thirty-eight paragraph recitation:

"Although somewhat bereft of specific facts, the declaration in this case attempts to paint an unpleasant picture of medical politics. The Plaintiff, Dr. Maher Ishak, a physician and surgeon was a member of the 'courtesy physician staff of Fallston General Hospital beginning in July of 1977 but at the end of 1978 the hospital declined to renew his staff privileges after they had expired as of December 31, 1978. The pretext for this non-renewal was the Hospital’s contention that Ishak had not paid his courtesy staff dues on time, although the first notice that Ishak received that any courtesy staff dues at all were being assessed was on Monday, December 11, 1978. On Wednesday, December 13, 1978 the medical executive committee, an advisory body to the Hospital’s board of directors, convened without any notice to Ishak and recommended to the executive board of the Hospital that Ishak be denied reappointment to the courtesy staff because he had failed to pay his dues. Completely unaware of the action taken by the medical executive committee, Ishak sought to obtain clarification of the dues situation on December 14, 1978 without success but on the following Monday, December 18, he was informed that he had indeed been assessed for dues. But he was not informed at that time either that the medical executive committee had previously recommended that he be denied reappointment or that the Hospital’s board of directors was to meet the following day, December 19, to consider the medical executive committee’s recommendation. The board of directors accepted the recommendation of the medical executive committee at the December 19 meeting, with the result that Dr. Ishak was not reappointed to the medical staff for the year 1979.
Still ignorant as to what had transpired Dr. Ishak sent in his check for dues on Thursday, December 21, but on Wednesday, December 27, he received a letter from the Hospital, dated December 22, 1978, informing him of the board of directors actions and, on the same day, he received back his dues check. Others who had paid their dues late were reinstated but Dr. Ishak’s attempts, via the appellate review machinery of the Hospital, to achieve the same results were given short shrift.
Underlying this action by the Hospital, says Dr. Ishak, was the 'fierce economic rivalry’ between Fallston General Hospital and Harford Memorial Hospital. Dr. Ishak was on the staff of both hospitals and had the temerity to express concern to the authorities at Fallston General Hospital regarding certain rumors to the effect that Fallston may have encouraged certain ambulance services to bring emergency patients to Fallston rather than to the nearest hospital. He also questioned the political activities of the principal owner of Fallston (a proprietary hospital). Because he had thus 'made waves’ and because of his association with Harford Memorial Hospital, the Hospital retaliated by denying him reinstatement under the contrived pretext of not paying his dues.
This, says the Plaintiff, amounts to a malicious breach of the Hospital’s contractual duty to the Plaintiff wherein the Hospital failed to seasonably notify him of the requirement of courtesy staff dues, to accept the dues when timely paid, and to accord him his procedural rights. Thus, he contends, he is entitled to compensatory damages for the economic loss he has suffered and for punitive damages for the malicious way in which it was all done. In addition, the Court is asked to grant an injunction ordering his reinstatement to the courtesy staff.”

The judge then proceeded to set forth the appellees’ five asserted grounds for demurrer.

"Assuming, as I must at the demurrer stage, that the factual allegations of the declaration are true and even assuming that some of the conclusory ones are likewise both true and proper, the question therefore is whether or not a cause of action has been stated. [See Schwartz v. Merchants Mort. Co., 272 Md. 305, 307-308 (1974)]. All the Defendants demur. The grounds for the demurrer are:
1. The declaration showed nothing on its face to show that Fallston General did not have the right, like all other private hospitals, to exclude any physicians from its facility and that such exclusion was not within the sound discretion of the Hospital’s management.
2. That the Plaintiff has no vested right, contractual or otherwise, either to membership on the staff or to reappointment to the staff for the year 1979.
3. That the Defendants had no obligation to follow their own by-laws in declining to reappoint the Plaintiff.
4. That there were no violations of the by-laws anyway.
5. That the medical staff by-laws specifically contain a waiver clause denying Plaintiff legal recourse, and that the Hospital’s board of directors had the final say in the matter of reappointment to the courtesy staff. The demurrer also says that the Hospital’s actions are beyond judicial review or interference which, of course, is like saying the declaration is demurrable because it is demurrable.

In his discussion of these matters, the judge did not explicitly state which, if any, were at the root of his ruling. Implicitly, he indicated his agreement with all but the fifth ground, although he rested his opinion primarily upon the autonomy granted by common law to private hospitals in deciding whether to renew physicians’ staff privileges.

"As to the first ground of the demurrer, it is unclear to me whether or not the failure to show that Fallston General did not have the right to exclude physicians is not really asking the Court to make the Plaintiff anticipate matters of defense. It is, however, clear to me that the allegations of the declaration, taken at their face value, show that the exclusion was not within the sound discretion of the Hospital’s management because the narrated course of conduct, if true, shows no considered exercise of discretion at all. But the main line of defense is that the Plaintiff had no vested right, contractual or otherwise, to membership on the Hospital’s courtesy physicians staff or to reappointment thereto. This proposition is in accord with the Maryland authorities as well as those elsewhere, Levin v. Sinai Hospital of Baltimore City, 186 Md. 174 (1946), Glass v. Doctors Hospital, 213 Md. 44.
The Defendants also say that whether or not the Hospital violated its own by-laws is immaterial and, anyway, the by-laws were not violated. In short, in a private hospital there is no right to due process because the procedural rules are neither contractual obligations of the hospital (there being no contract to begin with) nor required by any other principles of law. Manczur v. Southside Hospital, 183 N.Y.Supp. N.Y.S.2d 960 (1959), Weary v. Baylor University Hospital (Tex. C.A. 1962, 360 SW 2d. 895). Although one might then ask why a hospital should bother at all with by-laws, the courts are under no duty or compulsion to lend legal forces to the rules and regulations of private concerns unless by contract or statute such rules and regulations are given the force of law.
Furthermore, as the Defendants point out, the declaration referred to the Hospital’s by-laws but in fact only cites the by-laws of the medical staff. The Hospital by-laws, say the Defendants, are the controlling provisions because the medical staff is merely an advisory body. In short, the declaration cites only those by-laws which favor the Plaintiffs position and do not cite the governing by-laws (or even the unfavorable portions of the medical staff by-laws). The Plaintiff cites formal procedures of the medical staff by-laws which apply only to the 'initiating procedure to suspend or revoke staff membership or curtail existing clinical privileges’ and such provisions are plainly inapplicable to the matter of renewing privileges, again citing Glass v. Doctors Hospital, 213 Md. at 61.
As if this were not enough, Defendants then go on to say that any procedural deficiencies were minimal and that the safeguards in question were substantially complied with.”

But the autonomy granted to private hospitals exists only in the absence of statutory or contractual obligations of the hospital, such as where the hospital expressly contracts individually with physicians, cf. Glass, supra (where doctor waived contract right to practice in hospital by executing release), or implicitly accords staff members certain rights through its constitution or bylaws. In Levin, supra at 180, the Court of Appeals explicitly stated that:

"In Maryland a court of equity [] may properly grant injunctive relief to protect a physician in his right to treat his own patients in a hospital where its constitution and by-laws accord him that right, and also to pass upon the validity of asserted amendments to the constitution and by-laws for the purpose of determining his right to such relief. Stevens v. Emergency Hospital of Easton, 142 Md. 526, 121 A. 475 [(1923)].”

Appellant concedes that he claims no contractual or vested rights other than those expressly granted to him by the hospital. The heart of his contention, as stated in his declaration, is that he has been denied the procedural rights granted to him under the bylaws of the hospital as a member of the "Courtesy Physician Staff’.

"Under the By-laws, denial, curtailment, and revocation of staff privileges, including those enjoyed by courtesy physician staff, were governed by Article VIII of the By-laws. Under the terms of Article VIII, Plaintiff enjoyed rights of due process with regard to any action to terminate or fail to renew his courtesy staff membership. Under the terms of Article VIII, Plaintiff also enjoyed a reasonable expectation of a continuing beneficial relationship with Fallston General Hospital and Nursing Center. Article VIII of the By-laws is attached hereto as Exhibit 1.”

Appellant appended to his declaration only "Article VIII of the By-laws”. Although the judge found that Article to be restricted by its terms to disciplinary dismissals, it expressly also applies:

"in the event that the Medical Executive Committee shall not recommend a member for reappointment, or shall recommend a member for reappointment but with curtailed clinical privileges or with limitations on the exercise of his existing clinical privileges . . . .” Art. VIII, § 2, %b.

As the judge’s opinion points out, the appellees contend that the bylaw cited is not a hospital bylaw as such, but only a bylaw of the medical staff. That, of course, is not apparent in the declaration, the allegations of which must be admitted as true for demurrer purposes. It appears, therefore, that the force, efficiency, and application of the bylaw is solely a matter of defense at trial, not an allegation by the defendants to be conclusively accepted on demurrer. It is the allegations of the declaration that are accepted as true, not of the answer. The same is true regarding the issue of substantial compliance with the procedural safeguards. Such allegations of appellees are not accepted as fact; they are subject to proof as a defense at trial.

The court appeared to respond correctly in its opinion to appellees’ contention that whatever rights the bylaws gave with one hand by Art. VIII, § 2, they took back with the other hand through the waiver provision in Art. VIII, § 7.

"The Defendants also point out that Section 7 of Article VIII of the medical staff by-laws provides that the medical staff waive any rights of personal redress against the medical staff, the appellate review committee, any employee of the Hospital and Nursing Center, the Governing Board, or any member thereof, for disciplinary action taken under this Article [Emphasis added]. The short answer to this contention of the Defendants is that, just as they have said earlier, disciplinary action is not involved. What is involved is that non-renewal of courtesy staff privileges.”

We note that along with the absurdity of appellees’ interpretation, § 7 simply does not waive the right to litigate a denial of the rights afforded. It waives only the right of personal redress arising out of "disciplinary action” in regard to reports, information or accusations filed.

"8/7/a Any report, information or accusation filed, or any action recommended under Article VIII, shall be deemed a privileged communication. Each member of the Medical Staff waives any right of personal redress against the Medical Staff, the appellate review committee, any employee of the Hospital and Nursing Center, the Governing Board or any member thereof, for disciplinary action taken under this Article.”

Even if it is not apparent that this waiver is restricted to such actions as slander or libel arising from accusations, etc., filed in "disciplinary actions,” neither is it apparent that such waiver would apply to a nonrenewal procedural violation. In short, even if § 7 is ambiguous, it is not for us to interpret at this stage, as a matter of law, but should be interpreted upon submission to a fact-finder at trial. The judge was correct in refusing to consider it upon demurrer.

It may seem that we are damning the judge’s opinion with faint praise when we acknowledge its commendable articulation, while pointing to its defects, however we cannot restrain ourselves from further comment upon its closing dicta. The judge philosophized by concluding that:

"Perhaps this seems harsh and unjust. But the Courts cannot right every wrong, real or imagined, which exists in the world. They cannot indiscriminately interpret and enforce the internal regulations of private organizations. They do not even have to involve themselves with many governmental appointments of political nature and when it comes to the controversies within a learned profession, such as medicine, the Courts, like the Peers in Iolanthe 'should not itch to interfere in matters which they do not understand’.”

In a footnote, he philosophically enlarged upon that which he had mistakenly gleaned to be the law, providing a hands-off rationale for a brother "learned profession:”

"Horrifying and hypocritical as it may sound to moralists, there are times when the denial of an appointment for flimsy, contrived or 'political’ reasons is kinder to the victim than proceedings in which such denial is based on the victim’s alleged shortcomings or lack of qualification. A person is less likely to be damaged financially or emotionally if he is the victim of some dirty deal than if his competence or character is called into question. I do not mean in any way to imply that such would have been the case here; the only purpose of the observation is to add more weight to the observation that in the course of human events there are many times when it is best for the courts to let sleeping dogs lie.”

Proverbially, the judge was right (at least generally) that unkindness per se has no remedy at law. But Maryland law provides no sanctuary or immunity for principals who do not recognize the strictures that they impose upon themselves. See Stevens, supra. While sacred calves may have once been immunized at common law, such doctrines are subject to modification by statute or by judicial decision where the Court finds that it is no longer suitable to the circumstance of the people. Cf. Adler v. American Standard Corp., 291 Md. 31, 42-43 (1981). If a physician and a hospital cannot heal the wounds they have inflicted upon each other, courts will provide a room where they may operate exploratorily; but as in medicine, the scars left may cause that remedy to have been worse than the wound.

Judgment reversed.

Costs to be paid by appellees.

      . In State Dep’t of Assess. & Tax. v. Clark, 34 Md. App. 136, 141-142 (1976), we were similarly impressed with an opinion we felt was wrong. But we, too, were wrong. State Dep’t of A. & Tax. v. Clark, 281 Md. 385 (1977).

      . The Defendants are Fallston General Hospital and Nursing Center, a proprietary for-profit hospital; Fallston Medical Complex Operating Corporation, the general partner in Fallston General Hospital Limited Partnership, which owns the real estate; and Medi-Systems, Inc., the entity actually operating the Hospital.

      . We note here that although appellant has brought this suit at law, rather than in equity, he is entitled under Md. Rule BF40 to ask for an injunction as ancillary relief to his claims at law. The court must still apply the same tests and standards as would be applicable in an action in equity. Md. Rule BF43. At oral argument, appellant indicated that he may have abandoned his claims for damages, leaving only his claim for injunctive relief. If such is indicated of record upon remand, then the lower court should transfer the case to equity pursuant to Md. Rule 515.


author: Thompson, J.,

text:
    LEON R. LEVITSKY v. PRINCE GEORGE’S COUNTY, MARYLAND
    [No. 459,
    September Term, 1981.]

      Decided January 8, 1982.

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

      Stephen A. Friedman, with whom were Shelly E. Mintz and Baskin & Sears on the brief, for appellant.

      Steven G. Chappelle, Associate County Attorney for Prince George’s County, with whom were Robert B. Ostrom, County Attorney for Prince George’s County, and Michael O. Connaughton, Deputy County Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Dr. Leon Levitsky, appellant, appeals from an adverse judgment following a bifurcated trial in the Circuit Court for Prince George’s County with respect to the condemnation of 6,380 square feet of property. A hearing was initially held before Judge James M. Rea regarding the necessity of the taking. Judge Rea concluded that the taking was neither arbitrary, oppressive, nor so unreasonable as to suggest bad faith. A jury subsequently awarded appellant $5,300 in damages. The appellant raises four issues on appeal:

1. "Did the trial court err in finding that the decision of the condemnor was not so oppressive, arbitrary or unreasonable as to suggest bad faith and that there existed a necessity to justify taking the slope easement?
2. Did the trial court err in permitting the County to call the appellant’s appraiser, Paul J. Gilroy, as witness during their case in chief and in disclosing the fact that he was retained by appellant?
3. Did the trial court err in refusing to instruct the jury in accordance with appellant’s prayers regarding valuation of proximity damages?
4. Did the trial court err in not granting a directed verdict at the close of the appellee’s case in chief or in the alternative, by not granting the appellant’s Motion for Judgment N.O.V. or in the alternative new trial?”

FACTS

As a part of a project to widen a two-lane highway and to construct a sidewalk and gutter, Prince George’s County, appellee, condemned 6,380 square feet of land belonging to Dr. Leon Levitsky, appellánt. The County’s proposal included the resloping of appellant’s property to a 2:1 slope easement. The appellant, in an effort to retain his land in its natural state, protested the proposed 2:1 slope easement and sought to have the County construct a retaining wall in its stead.

At trial, the County presented the testimony of Robert C. Kelley, Chief of the Design Division of the Department of Public Works. He testified that the determination as to the mode of construction was based on "value engineering,” i.e., the most economical means available. While admitting that an independent cost analysis was not conducted with respect to the construction on the appellant’s land, he asserted that the retaining walls were more costly "nine out of ten times.” He further testified that the County makes use of a retaining wall in only one of two situations: first, where there is a structure existing on the land which would be adversely affected by the implementation of a 2:1 slope, or second, where the land itself evidences some "special” problem or instability and thus would not adhere to the slope. Mr. Kelley averred that he could not recall an occasion where the County had used a retaining wall merely to avoid having to slope the property. Finally, he testified that had a retaining wall been necessitated with respect to appellant’s property, it would have been implemented.

Mr. Leroy Fey, a Right-Of-Way engineer for the County, additionally testified that the decision as to the manner in which to "take” property was an economic determination. He stated that the engineers’ expertise in the area of construction costs, enabled them to render "instant decisions” as to the most economical means of accomplishing their task. Mr. Fey further testified as to his belief that the County acted in good faith and in a reasonable manner in its determinations with respect to appellant’s property.

The appellant’s witness, Bernard J. Bovelsky, an engineer, was questioned on cross-examination with respect to a statement rendered at a pre-trial deposition whereupon he testified as to the soundness of the County’s plan, stating, "I see nothing engineeringly wrong with it. It was designed properly.” When asked at trial whether such statements continued to be true, he responded that while he may have investigated the possibility of alternative modes of construction, he would have done "exactly what the County did.”

Finally, Mr. Kenneth Adelberg, a consulting engineer, testified on behalf of the appellant. He opined that the County’s plans to reslope the appellant’s property were unnecessary. He stated that as an alternative the County could construct a retaining wall which would eliminate the need for a slope easement or they could straighten the road, thereby eliminating the need to affect appellant’s property entirely. He further stated that the County’s plans as they exist on the construction drawings indicate a steeper slope than the asserted 2:1 and would in certain areas result in a slope closer to a 1:1. Mr. Adelberg admitted that aside from the possible difficulties stemming from the slope drawings, he could not say the basic engineering practices were wrong.

At the conclusion of all the evidence, the trial court ruled in favor of the appellee holding that the projected plans were neither arbitrary nor unreasonable. The following week additional evidence was adduced before a jury for determination of the amount to be due as damages.

The jury traveled to the appellant’s property and viewed the subject area as well as adjacent property. Upon returning to the courtroom, the jury heard the testimony of Mr. Fey regarding the purpose of the entire project and the manner in which the County intends to stabilize the 2:1 slope.

The County thereafter called two appraisers, Richard Pierce, who valued damages at $800, and Paul Gilroy, who valued the damages at $5,185. Mr. Gilroy had originally been retained by the appellant to appraise the subject property. Appellant chose not to call Mr. Gilroy as a witness but in accord with Md. Rule U12 subsection b (1) furnished the County with a copy of his appraisal. Over objection by appellant and Mr. Gilroy, his testimony was permitted. Additionally, over objection, the County was allowed to question Gilroy as to his earlier involvement with the appellant.

The appellant proceeded with the testimony of Dr. Levitsky who testified as to his plans for the property. He estimated the value of the property as between $50,000 and $60,000 and estimated the damage percentage at 100%. This testimony was followed by that of architect William Trujillo, who further testified as to the proposed plans of Dr. Levitsky. Kenneth Adelberg was called as a witness to discuss the mode of engineering proposed by the County and the effect of such methods on proximity damages. Appellant’s last witness was appraiser, Michael Hagen, who, using a market value approach, arrived at an estimated value of $27,043 in damages.

The jury thereupon retired and returned with an inquisition in the amount of $5,300.

I Necessity for the Taking

Where a municipal corporation exercises its power to take property courts generally will not interfere unless: (1) there is no necessity for the taking, and (2) the decision of the condemnor is so oppressive, arbitrary or unreasonable as to suggest bad faith. Washington Suburban Sanitary Commission v. Santorios, 234 Md. 342, 199 A.2d 206 (1964). The necessity for the taking need not be absolute as long as it can be shown to be reasonable under the circumstances. Id. at 346; Johnson v. Consolidated Gas, Electric Light and Power Co., 187 Md. 454, 50 A.2d 918 (1947). It is uncontroverted that a necessity exists for the County to widen the road adjoining appellant’s property and to construct a sidewalk and gutter. Thus, the aspect of necessity focused upon at the trial level was the decision of the County to proceed by method of slope easement rather than building a retaining wall as requested by appellant. Appellant urges that the County’s resloping of his property will have the proximate effect of rendering the land unfit for a planned residence, pool and tennis court, while the implementation of a retaining wall would allow him to proceed as intended. In response to similar protestations, the Court of Appeals observed in Boswell v. Prince George’s County, 273 Md. 522, 523-24, 330 A.2d 663 (1975):

"Landowners when faced with a proposed acquisition of their land for public improvements, whether by way of easement or in fee simple, have often suggested to the courts that they saw a better way to do the improvement than that proposed by the condemning authority. See, e.g., Director v. Oliver Beach Imp. Ass’n., 259 Md. 183, 269 A.2d 615 (1970); State Roads Comm. v. Franklin, 201 Md. 549, 95 A.2d 99 (1953); Johnson v. Gas & Electric Co., 187 Md. 454, 50 A.2d 918 (1947); and Murphy v. State Roads Comm’n., 159 Md. 7, 149 A. 566 (1930). They have been uniformly unsuccessful in this Court.”

In the present case the appellant’s assertion of bad faith on the part of the County will be equally unsuccessful.

The appellant urges that bad faith is evidenced by the failure of the County to perform cost estimates of the various procedures prior to its decision to implement a particular mode of construction. The absence of such computation was logically explained by Mr. Fey, a Right-of-Way engineer for the County who stated:

"Our design engineers know what basic construction costs are, such as walls. They know basically what construction costs are such as slopes, and in the orderly process of designing a roadway, they can virtually tell like you quoting from some case history out of your head, that the costs of a wall far exceeds the cost of grading. And as a result, they don’t sit down and say, well this square foot of land on Dr. Levitsky versus this square foot of wall on Dr. Levitsky is thus and so. They do not do that. They know they, because they are experts, they are designers, roughly, what the costs are going and, and as a result they make instant decisions on the drafting board.”

It is not unreasonable for the County to rely on decisions rendered by their engineers without computing a separate cost analysis for every project contemplated. These decisions are not the result of instinct, as alleged by appellant, but rather expertise acquired through years of engaging in similar projects.

Further evidence as to the reasonableness of the actions by the County is found in the testimony of appellant’s own expert, Mr. Bernard Bovelsky, a civil engineer. Mr. Bovelsky averred at his deposition: "I see nothing engineeringly wrong with it [the County’s plan]. It was designed properly.” When later questioned at trial as to whether he agreed with this previous statement he responded that while he personally would have investigated other alternatives he would have done "exactly what the County did.”

It is clear that the construction of the retaining wall may have been more conducive to the plans of the appellant, however, individual preference or convenience is not sufficient to overturn the decision of the County. We find no evidence indicating that the County acted arbitrarily or unreasonably in its decision making processes. Without such showing the judiciary is without liberty to substitute its judgment for that of the County. We see no error in the trial judge’s ruling with respect to reasonableness and necessity of the taking.

II Expert Witness’s Testimony

The appellant contends that the trial judge erred in first, permitting the County to call the appellant’s appraiser, Paul Gilroy, as a witness in violation of the attorney-client privilege and second, in permitting the County to elicit from Gilroy the fact that he had originally been employed by the appellant. Appellant asserts that the disclosure of the latter prejudiced the jury into giving undue weight to Gilroy’s opinion as evidenced by their award of damages within $200 of his appraisal.

The attorney-client privilege is the oldest of the privileges for confidential communications. 8 Wigmore, Evidence § 2290 at 542 (McNaughton rev. 1961). In the State of Maryland, the privilege is one of statute, found in Md. Cts. & Jud. Proc. Code Ann. § 9-108 (1980). It is a rule of evidence which prohibits the disclosure of the substance of a communication made in confidence by a client to his attorney for the purpose of obtaining legal advice. See, State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979); Harrison v. State, 276 Md. 122, 345 A.2d 830 (1975); 8 Wigmore, supra, § 2292 at 554. The privilege is grounded on the policy of encouraging individuals needing legal advice to disclose information freely to their attorney without fear that such facts will be made public. See, State v. Pratt, supra, 284 Md. at 520; Harrison v. State, supra 276 Md. at 135; People ex rel. Department of Public Works v. Donovan, 57 Cal.2d 346, 19 Cal. Rptr. 473, 369 P.2d 1 (1962); People v. Edney, 385 N.Y.S.2d 23, 26, 39 N.Y.2d 620, 350 N.E.2d 400 (1976).

The complexities inherent in modern litigation have rendered it difficult, if not impossible, for attorneys to represent the interests of their clients without the assistance of a variety of trained, non-legal individuals, i.e., law clerks, typists, messengers, etc. United States ex rel. Edney v. Smith, 425 F.Supp. 1038 (E.D. N.Y. 1976), aff'd. mem., 556 F.2d 556 (1977); State v. Pratt, supra, 284 Md. at 520. In recent years various jurisdictions have been expanding this group of privileged agents to include those specialists necessary for the attorney to effectively represent his client. This expansion seeped into Maryland law in State v. Pratt, supra; see, Note, 9 U.Balt. L.Rev. 99 (1979). In Pratt, the defendant, charged with the murder of her husband, was evaluated by a psychiatrist at the request of her attorney. At trial, the psychiatrist was called, over objection by the accused, to testify as to his opinion of appellant’s sanity. The Court held that the communications made by the defendant to the medical expert fell within the scope of the attorney-client privilege. The Court theorized that inasmuch as the expert functioned as an agent of the attorney, any disclosures from the client to the expert were privileged when such information was used to enable the attorney to adequately represent his client. Id. at 520. The Court confined its holding to criminal causes, thereby leaving open the scope of the privilege with respect to employment of an expert in a civil matter. Id. at 523, n.5.

In jurisdictions other than Maryland, various theories have been offered in justification of the expansion of the privilege. One line of cases has likened the physician to an interpreter, without whom neither the attorney nor the client could fully understand the significance of the client’s information. United States ex rel. Edney v. Smith, supra, 425 F.Supp. at 1047; see also, City and County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26 (1951); Lindsay v. Lipson, 367 Mich. 1, 116 N.W.2d 60 (1962); State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957). In City and County of San Francisco, supra, a personal injury suit, the Supreme Court of California observed:

"Had Hession himself described his condition to his attorneys there could be no doubt that the communication would be privileged and that neither the attorney nor Hession could be compelled to reveal it. . . . It is no less the client’s communication to the attorney when it is given by the client to an agent for transmission to the attorney, and it is immaterial whether the agent is the agent of the attorney, the client, or both.” 231 P.2d at 31.

The conceptional premise for this extension of privilege has not gone without criticism. As Professor Friedenthal has noted:

"The court failed to discuss the fact that the doctor’s observations and conclusions, apart from the client’s communications to him, constituted knowledge on the part of the doctor which would be highly material to the case. Thus, in transmitting the 'client’s communication’ the doctor became far more than a mere interpreter, for he added an important increment of knowledge of his own. It seems that this knowledge should be treated just like the knowledge of any other witness and should be discoverable from the doctor himself.” Freidenthal, Discovery and Use of an Adverse Party’s Expert Information, 14 Stan. L.Rev. 455, 463-64 (1962).

Logic might seem to dictate that the holding of Pratt be equally applicable to its civil counterpart. In both Pratt and City and County of San Francisco, the individuals were required to submit to medical evaluations at the behest of their attorneys. These evaluations necessitated the revelation of personal facts which normally would be concealed. Thus, the determinative element establishing the cloak of privilege is the presence of a confidential communication emanating from the client. There is an obvious distinction between the opinion of an appraiser who places a monetary value on land which is open and visible to all, and that of a physician who conducts an evaluation of an individual. As commented by the Supreme Court of South Dakota in State Highway Commission v. Earl, 82 S.D. 139, 143 N.W.2d 88 (1966):

"The purpose behind our attorney-client privilege is to encourage a client to freely communicate with his attorney without fear of disclosure. Obviously its protective mantle does not extend to an appraiser of real property. He is not an attorney and the appraisal process of inspecting property, examining public records, comparing sales, and applying knowledge, training and experience in forming an opinion of value does not involve a confidential 'communication made by the client.’ The mere fact the expert may have communicated his opinion of value to either the attorney or client does not make it a privileged communication.” 143 N.W.2d at 92.

It appears that the distinction should be predicated on the source of the expert’s information, rather than civil versus criminal. The real estate appraiser at issue who obtained his opinion by viewing property and applying his expertise was not transmitting appellant’s "confidence.” His communication, therefore, cannot be protected by the attorney-client privilege, the sole purpose of which is to encourage full disclosure by the client to the attorney. See, Oceanside Union School District v. Superior Court, 58 Cal.2d 180, 23 Cal.Rptr. 375, 373 P.2d 439 (1962). Such expansion of the domain of protective material would be directly contrary to the well-established policy in favor of strict construction of the privilege and interest of bringing to light relevant facts. People ex rel. Department of Public Works v. Donovan, supra 369 P.2d at 6-7.

This brings us to the second prong of the appellant’s attack on the testimony of Paul Gilroy. He asserts that even if Gilroy’s testimony is not privileged, the County should not have been permitted to elicit the fact of his original employment by appellant. This issue is one which has been the subject of much litigation throughout the country. See, Annot., 71 A.L.R.3d 1119 (1976). Many courts have held that a party to an eminent domain proceeding may, either as an absolute right or as a matter resting within the sound discretion of the court elicit from the witness the fact that he was originally employed by the other party. See, e.g., Arkansas State Highway Comm. v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972); Urban Renewal and Community Development Agency of Louisville v. Fledderman, Ky, 419 S.W.2d 741 (1967); Logan v. Chatham County, 113 Ga. App. 491, 148 S.E.2d 471 (1966). Other courts have held such evidence to be inadmissible. See, e.g., State ex rel. Smith v. Wilkinson-Snowden, McGehee, Inc., Tenn. App., 571 S.W.2d 842 (1978).

The Court of Appeals expressed its preference for the former view in City of Baltimore v. Zell, 279 Md. 23, 367 A.2d 14 (1977). The Court held that the trial judge did not err in permitting the land owners to disclose to the jury that such witness had initially been employed by the condemnor. In its opinion the Court determined that:

"The extent to which such questions are permitted must, in our view, remain in the sound discretion of the trial judge. In the absence of a clear abuse of discretion in a particular case, the action of the trial judge in permitting or not permitting them will be upheld. In the case before us, there was no abuse of discretion in allowing the defendants to bring out the fact that the witness whom they called had initially been employed in the matter by the other side.” Id. at 28.

In the present case we find no abuse of discretion by the trial judge.

Ill Jury Instructions

The appellant next contends that the trial court erred in its refusal to instruct the jury in accordance with the appellant’s prayers regarding valuation of proximity damages. Following the judge’s instructions to the jury, appellant objected to various instructions stating:

"As far as our exceptions, we have been over these in chambers. But for the record, I would except to not giving the last sentence in 4; not giving number 7, 8, 9, 10, 11, 13, 15, the last paragraph of 18. That’s it.
The Court: The Court recognizes the exceptions.”

The requirements of Md. Rule 554 d are not met where a party merely makes reference to the instruction number without further expounding upon the actual ground of the objection. Jones v. Federal Paper Bd. Co., 252 Md. 475, 250 A.2d 653 (1969); Bauman v. Woodfield, 244 Md. 207, 223 A.2d 364 (1966); Belt’s Wharf v. Internat. Corp., 213 Md. 585, 132 A.2d 588 (1957); cf., Sergeant Co. v. Pickett, 283 Md. 284, 388 A.2d 543 (1978) (The court found a substantial compliance with Md. Rule 544). The appellant failed to state the basis of his objection to the jury instructions so the issue is not preserved for review. If the question were before us we would rule that the instructions given adequately covered the instructions requested.

IV Appellant’s Motion for Directed Verdict, Judgment N.O.V. and New Trial

The appellant asserts that the trial judge erred in his refusal to grant a directed verdict, a judgment n.o.v., or a new trial. The assertion was predicated on the belief that the damages suffered were far in excess of those awarded by the jury.

In considering a motion for a directed verdict, the Court must assume the truth of all credible evidence on the issue and all the inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made. Impala Platinum v. Impala Sales, 283 Md. 296, 389 A.2d 887 (1978). If a non-moving party offers "any evidence competent, pertinent and coming from the legal source, legally sufficient to prove plaintiffs case, the motion for directed verdict should not be granted.” Lenehan v. Nicholson, 214 Md. 414, 135 A.2d 447 (1957). The same rule has been held applicable to a motion for a judgment n.o.v. James Gibbons Co. v. Hess, 44 Md. App. 216, 407 A.2d 782 (1979). In the instant case the experts’ testimony provided a workable range of damages as well as alternate formulas from which to evaluate their award. The trial judge did not abuse his discretion in denying the appellant’s motions for a directed verdict or a judgment n.o.v. Neither do we see any abuse of discretion in his denial of a motion for a new trial.

Judgment affirmed. Appellant to pay the costs.

      . Appellant additionally asserts that the County has attempted to shift the costs of installing the road by forcing him to stabilize and maintain what he characterizes as a "vertical cliff.” In that the County has steadfastly maintained its intent to stabilize the slope with sod, we find no merit in the assertion.

      . Section 9-108 of the Courts Article provides:
      "A person may not be compelled to testify in violation of the attorney-client privilege.”

      . Although the communication between a physician and a client may not be entirely of a verbal nature, i.e., facts adduced from examination and symptomatology, it is clear that the privilege embraces not only oral or written statements but actions, signs, or other means of communicating information by a client to his attorney. People v. Glen Arms Estate, 230 Cal. App. 2d 841, 41 Cal. Rptr. 303 (1965).

      . The appellant additionally asserts that the privilege attaching to the work product of an attorney operates to bar the County from calling his appraiser as a witness. This contention has been uniformly rejected. See, Thomaston v. Ives, 156 Conn. 166, 239 A.2d 515 (1968); State ex rel. State Highway Comm. v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966); Annot., 71 A.L.R.3d 1119 (1976).

      . The propriety of calling the witness was not raised in that case.

      . Md. Rule 554 d reads as follows:
      "If a party has an objection to any portion of any instruction given, or to any omission therefrom, or the failure to give any instruction, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection. Opportunity shall be given to make the objection in open court out of the hearing of the jury upon application either orally or in writing, made before or after the conclusion of the charge.”


text:
    IN RE: HOWARD L. IN RE: JULIUS B.
    [No. 469,
    September Term, 1981.]
    [No. 470,
    September Term, 1981.]

      Decided January 8, 1982.

    The cause was submitted on briefs to Moore, Lowe and Mason, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellants.
    Submitted by Stephen H. Sachs, Attorney General, Maureen O’Ferrall Gardner, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and llene J. Nathan, Assistant State’s Attorney for Baltimore City, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

This is another in a series of attempts to use dismissal of a juvenile delinquency petition as the sanction for an alleged technical violation of procedural time limits mandated by rules of the Court of Appeals. The rule in question, Md. Rule 914 b, provides that "[a]n adjudicatory hearing shall be held within sixty days after the juvenile petition is served on the Respondent.”

In the two cases before us, an adjudicatory hearing was set in compliance with the rule. In Case No. 469 (In Re: Howard L.), the hearing date was within 18 days of such service, and in Case No. 470 (In Re: Julius B.), 21 days, both to be tried on December 16,1980 in the Circuit Court of Baltimore City,, Division for Juvenile Causes. In both instances the hearing was postponed at the appellants’ requests over State objection. Counsel for both appellants expressly waived the 60 day requirement until the next adjudicatory hearing date, set for January 12, 1981. Before the cases were eventually heard, on March 3,1981, the hearings were twice more postponed, but this time at the behest of the State over appellants’ objections. Were we assessing fault, as in speedy trial cases, the State’s failure to produce its victim-witnesses would appear to be the cause of the latter two postponements. Two and one-half months after the first postponements, the cases were heard and appellants were adjudicated delinquent.

With good reason the State hesitates to contend that the 60 day rule requirement is not mandatory, nor does it even address a possible justification for the two postponements granted the State. Curiously, it merely contends that because the first postponement was at the juveniles’ request, the sanction "cannot be dismissal,” citing as basis for its reasoning two cases which address other rules unrelated to juvenile proceedings or procedures. While the State is wrong in declaring that in these instances dismissal "cannot” be the sanction, our review of the rule and the opinions of the Court that made the rule convinces us that in these instances dismissal should not be the sanction. But we hasten to note that, like the Court of Appeals in In Re Dewayne H., 290 Md. 401 (1981), we do not address what that sanction should be; nor do we address the possibility that speedy trial rights may arise from delay, since those issues were not raised here or below.

Judge Smith pointed out for the Court of Appeals in In Re Dewayne H. that the context of words used has a bearing on their interpretation. Id. at 405. He illustrated his point with the case of In Re James S., 286 Md. 702 (1980), which addressed a statute specifying that a juvenile "petition alleging delinquency shall be filed within 15 days after the receipt of a referral from the intake officer.” The Court gleaned the legislative intent as to sanction for violation from a comparison of the statute with limitations statutes. Noting the similarity of language between the juvenile statute and the limitations statutes, the Court held that the same sanction — dismissal — should apply for noncompliance. In Re James S., supra at 713; In Re Dewayne H., supra at 405.

Judge Smith pointed out that the rule addressed in In Re Dewayne H. dealt with a mandated period within which disposition must be had following an adjudication of delinquency. Md. Rule 915 a. He noted that the imposition of dismissal in juvenile cases, especially where procedural rules relating to disposition have been violated, did not inure to the benefit of the juvenile, and quoted from our Court, as well as the Court of Appeals, to support that reasoning. He then concluded the case by saying:

"Unlike the bringing of a civil or criminal proceeding where the applicable time limits are lárgely in the control of the party initiating the litigation, neither party here had control over the date set for the disposition hearing. We do not have before us in this proceeding the question of what, if any, sanction other than dismissal of the proceeding might be applied. There was at least a suggestion that the juvenile judge might confer with the masters pointing out the mandatory nature of the rule. Conceivably there could be yet other remedies. The State as the representative of the general public has an interest in seeing that this juvenile is rehabilitated so that he becomes a useful citizen and in no way a menace to society. In that circumstance it simply does not follow that the proper sanction for violation of the rule is dismissal of the proceeding. The reasoning we have set forth from [State v.] Hicks [, 285 Md. 310 (1979)] is applicable here. The juvenile judge erred.” 290 Md. at 407.

Not only is that reasoning persuasive to us, but we feel that it is binding when applied to a similar juvenile proceeding rule enacted by that Court. It is significant, we believe, that when the Court imposed the dismissal sanction in In Re James, supra, and narrowly avoided imposing the dismissal sanction in Hicks, supra, only by finding extraordinary cause for noncompliance, it was interpreting the intent of the Legislature. Although in the Hicks case, the Court said that, absent extraordinary cause, dismissal would be mandated pursuant to its own procedural rule, Md. Rule 746, it was only willing to impose such sanction to the extent that the rule tracked the legislative act, codified in Md. Ann. Code (1957, 1976 Repl. VoL), Art. 27, § <591. It is also noteworthy that both the act and the rule appear to have been enacted to augment the constitutional speedy trial safeguards. But when addressing another mandatory provision of the same rule which went beyond the terms copied from the statute, the Hicks Court declined to impose the extreme sanction of dismissal.

"There are two circumstances, however, under which dismissal is not an appropriate sanction for violation of Rule 746.
First, in addition to the requirement that, absent extraordinary cause, criminal cases at the circuit court level be tried within 120 days of the appointment or waiver of counsel or after the appearance of counsel under Rule 723, Rule 746 also requires that the act of setting this trial date be done within 30 days. Of course, as long as the case is tried within the 120-day deadline, the purpose of the rule and the statute upon which it is based, namely having the case tried promptly, will be accomplished, even if the setting of that trial date is not done within 30 days. In other words, the legislative purpose underlying § 591 and Rule 746 will in no way be advanced by holding that dismissal is the appropriate sanction for violation of the 30-day requirement. For this reason, we do distinguish between the 120-day requirement and the 30-day requirement. While the 30-day requirement is mandatory for those persons involved in setting the trial date, we hold that dismissal of the criminal case is not an appropriate sanction for violation of the 30-day provision.” State v. Hicks, supra at 335.

The language of the rule which we now consider, Rule 914 b, addresses the same subject as that addressed by Rule 746 and Hicks, i.e., the scheduling of a hearing. Rule 914 b even anticipates a breach of its provisions in one part of its mandate, but imposes a sanction substantially less severe than dismissal of the petition.

"RULE 914. ADJUDICATORY HEARING.
b. Scheduling of Hearing.
An adjudicatory hearing shall be held within sixty days after the juvenile petition is served on the respondent. However:
(i) if a waiver petition is filed, an adjudicatory hearing shall be held within thirty days after the court’s decision to retain jurisdiction at the conclusion of the waiver hearing; and
(ii) if the respondent is in detention or shelter care, the adjudicatory hearing shall be held within thirty days from the date on which the Court ordered continued detention or shelter care. If an adjudicatory hearing is not held within thirty days, the respondent shall be released on the conditions imposed by the court pending an adjudicatory hearing.”

Nothing in that rule indicates in the slightest that the Court of Appeals intended the sanction imposed upon society for an administrator’s violation to be dismissal of the petition. Nor do we see anything in the rule, or reasoning of the Court of Appeals, to suggest that delinquents be denied the benefits of rehabilitation anticipated by the Juvenile Causes Act because of a technical scheduling violation. Strict compliance with mandated procedures can certainly be administratively imposed without detriment to both the youth we hope to help and the society he has already once imposed upon.

Judgments affirmed.

Costs to be paid by appellants.

      . In overruling appellants’ exception to the juvenile court’s finding, the court below held that, because of appellants’ express waiver, the State had 60 days from January 12,1981 to hold the adjudicatory hearing. Appellants point to the interval of time between their arraignments and the first nearing date, and contend that this period of time (18 days in Case No. 469 and 21 days in Case No. 470) should be tacked on to the subsequent delay from January 12 to March 3,1981 (50 days) in determining whether the 60 day rule was violated. We will not decide whether appellants’ waiver of the 60 day requirement encompassed the time period between arraignment and waiver, since we will hold that, regardless of any technical violation, dismissal is not the proper sanction in this case.


author: Couch, J.,

text:
    CHAI MANAGEMENT, INC. v. GEORGE LEIBOWITZ
    [No. 510,
    September Term, 1981.]

      Decided January 11, 1982.

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

      Leo Howard Lubow, with whom were Thomas C. Swiss and Freishtat, Schwartz & Sandler on the brief, for appellant.

      Kenneth P. Niman, with whom were Kaplan, Heyman, Greenberg, Engelman & Belgrad, P.A. on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

George Leibowitz, the appellee, was summarily discharged by his employer, Chai Management, Inc., the appellant, and brought suit against the employer claiming that he was entitled to a written 60-day notice of termination, which was not given. He thus claims that he should be paid his wages for that period. The Superior Court for Baltimore City, agreeing with appellee’s argument, granted his motion for a directed verdict and awarded him $3,495.89. It is from the resulting judgment entered in appellee’s favor that this appeal is taken, wherein a narrow question is presented:

Whether an employer who fires an employee for cause (upon a material breach of contract) must be required to pay the employee for the notice period designated by the employment contract?

The Facts

The facts pertinent to this appeal are gleaned from the parties’ agreed Statement of Facts. In January, 1978, the appellee, a licensed nursing administrator, entered into an employment contract with Chai Management, Inc., a company that contracts to provide housekeeping and dietary services to nursing homes. In pertinent part the employment contract provided:

"I, the undersigned accept the appointment as a Licensed Nursing Administrator of Chai Management, Inc. to be effective this date and to continue until terminated. This contract can be terminated by either party with a written 60-day notice.”

The appellee was thereafter appointed as administrator of the Federal Hill Nursing Home and had the responsibility for assuring that all services were properly performed and for the resolution of all housekeeping emergencies that arose at the facility.

Sonya Gershowitz, the owner and president of appellant corporation, testified at trial that in June of 1978, near the end of the month, she learned that the facility was out of toilet tissue. She then instructed the appellee to secure some and told him that "he was under no circumstances to leave the facility until there was toilet paper there.” Contradicting his employer’s testimony, the employee testified that she merely told him that "you had better get some toilet paper,” and that based on past experience he believed that only the storeroom was out of toilet paper, not that the whole facility was out. He stated that he left the nursing home, intending to call the purchasing agent the following morning to secure an afternoon delivery, and went to the Downtown Racquet Club.

When the facility was that day visited by members of the Health Department, the lack of toilet paper was discovered and Ms. Gershowitz herself secured a supply thereof for the nursing home. The following day appellee was fired "because of his gross negligence, insubordination and his breach of contract.” Appellee demanded payment for the balance of the 60-day notice period; this was refused by appellant and suit ensued.

Because this appeal is from the trial court’s direction of a verdict in the employee’s favor, "the evidence and all logical inferences deducible therefrom must be considered in the light most favorable to the [non-moving party’s] cause of action.” Campbell v. Patton, 227 Md. 125, 134, 175 A.2d 761, 766 (1961). For the purposes of this appeal, we must accept as true the employer’s evidence that the employee wilfully disobeyed his employer’s explicit command to obtain immediately more toilet paper.

The Contentions

In essence, the employer argues that the employee breached the contract and thus forfeited any right he had to the 60-day termination notice or cash equivalent. The employee contends that, under the clear language of the contract, he was entitled to notice of termination or to be paid for that period. In support of his argument the employee relies primarily on Van Horn Drug v. Noland, Okla., 323 P.2d 366 (1958), and Leick v. Missouri Plating Co., 240 Mo. App. 565, 211 S.W.2d 77 (1948). The parties appear to agree, and our own research confirms, that there is no Maryland authority squarely on point.

In our view, neither of these cases is dispositive of the narrow issue here. Both involve factual situations where the employee did not breach the contract and the employer failed to give the proper notice. In Leick, the employment contract was for a five year term but provided that it may be "cancelled by either party upon 90 days written notice, during which time said agreement shall remain in full force and effect.” 211 S.W.2d at 79. The employer there, charging that the employee "did not perform his duties, but conducted himself in an unsatisfactory manner,” id., fired the employee without regard to the notice provision. The employee sued to recover, inter alia, wages due him for the 90-day notice period. The jury heard the evidence and found for the employee. The employer then appealed the denial of its motion for a directed verdict. It thus asked the appellate court to find the termination justified as a matter of law. The jury had clearly been presented with a factual question of whether the employee had materially breached the contract. By finding for the employee, it must have answered that question in the negative. In reaching its decision, we assume that the appellate court viewed the evidence and all reasonable inferences deducible therefrom in the light most favorable to the non-moving party, the employee, and concluded that the employee had not breached the contract. It held that when there is no material breach, only a subjective dissatisfaction of one party, the notice provisions of the contract must be fulfilled: "mere dissatisfaction with plaintiffs services did not alter the cancellation provision ____There being no showing that further performance of the contract was impossible by reason of death, insanity, illness, or other such happening, the cancellation clause requires strict compliance.” 211 S.W.2d at 80. Thus, Leick involved a situation where the employee did not materially breach the contract and the employer fired him without giving him the notice required by. the contract. In the case subjudice, we must accept as true the reasonable inference that the employee materially breached the contract by refusing to obey the employer’s reasonable instruction to obtain toilet paper. The facts here are different than in Leick. Here, the case was not ripe for a directed verdict and the jury must determine whether the employee has materially breached the contract.

Van Horn Drug v. Noland, Okla., 323 P.2d 366 (1958), relied, in part, on Leick. The employment contract in Van Horn provided for the termination of the contract by either party at any time "with or without just cause,” by giving 30 days notice. 323 P.2d at 369. The employer argued that it fired the employee because of its "dissatisfaction with [the employee’s] services by reason of his conduct, disloyalty, negligence, and inefficient management of the business.” Id. at 368. The employee denied these allegations and contended the real reason was so that the employer could "effect a lucrative lease on its premises to a third party.” Id. The court instructed the jury that it

"should return a verdict for plaintiff [employee] if it found plaintiff had complied substantially with the terms of the contract, and that the defendant [employer] failed to give the thirty days notice, and further instructed that if the jury did not so find, but found that defendant was in good faith dissatisfied with plaintiffs services, then their verdict should be for defendant.” Id. at 370.

The jury apparently believed the employee because it found in his favor. The appellant employer argued on appeal that the trial court erred in not granting its motion for a directed verdict. The court held that the motion for a directed verdict was properly denied because "under the facts and circumstances shown by the record, the contract of employment could not be terminated by the [employer] without giving the thirty days written notice . . . .” Id. at 370. i.e., if the jury believed the employee, then it would have found that he had not breached the contract and was thus entitled to hold the employer to the provisions of the contract. Here again the court was faced with a non-breaching employee and an employer who had failed to perform his contractual obligations regarding notice.

Thus, neither Leick nor Van Horn contemplated the situation which exists in the present case. Here, because we must accept as true the inference that the employee had breached the contract, we are faced with a situation where a breaching employee is subsequently seeking the benefit of one of the provisions of the contract. It is as if the employee has breached the provision that requires him to go to work and then sues under the provision which specifies his salary. Once an employee has breached the contract, he cannot subsequently force the employer to perform except in unusual circumstances, e.g., if the employee has a vested right in commissions which accrue at a date subsequent to his breach. "There must be compliance with a provision in a contract of employment ... for a stipulated notice of the termination of the employment, and a discharge or abandonment without the required notice is unlawful except where valid grounds authorizing the termination of the employment exist.... A party claiming the benefit of a notice under the contract of employment must show compliance on his part with the terms of the contract.” 56 C.J.S. Master & Servant § 32(c) (emphasis added) (footnotes omitted). "Accordingly, an employee rightfully discharged for incompetency, misconduct, or other reason forfeits the balance of his pay which might have been due him after the fulfillment of his contract.” 53 Am. Jur. 2d Master & Servant § 45 (footnote omitted).

Decisions of other states’ appellate courts support our decision here. In Basse v. Allen, 43 Tex. 481 (1875), an employment contract provided for one month’s notice before termination. The employer alleged that the employee had been, inter alia, absent from work and intoxicated on the job. The court held that for the employee to hold the employer to the notice provision, he must not have been in breach of the employment contract: "If the plaintiff [employee] claims the benefit of the month’s notice provided for in the agreement, he must show compliance with its terms.” Id. at 483. This is exactly the situation in the case at bar.

In Ehlers v. Langley & Michaels Co., 72 Cal. App. 214, 237 P. 55 (1925), there was an employment contract which provided for 30 days notice before termination. The employer fired the employee and disregarded the notice provision, charging him with a wilful violation of a company rule that subcontractors should not be paid until the customer accepted the work. The employee denied that such a rule existed, the jury found in favor of the employee, and the employer appealed. The appellate court found that the rule contended by the employer did not exist: "It would thus appear from respondent’s testimony which, in view of the verdict of the jury in his favor must be taken as true, that the rule .:. was not effective....” Id. at 219-220, 237 P. at 57. Because there was no breach of contract by the employee, the court held that the employer was required to perform its duties under the contract:

"While it is doubtless the law, as appellant contends, that willful disobedience by the servant warrants peremptory dismissal by the master, nevertheless before the law will allow an employer to ignore the specific terms of a contract of employment, which requires notice to be given the employee of its proposed termination, it must appear that there has been some rule, order, or instruction of the employer violated, and that such violation was committed willfully and deliberately on the part of the employee.” Id.

In the case at bar, by viewing the evidence in the light most favorable to the employer, such a violation was shown. If the jury believed the employer’s evidence, then peremptory dismissal would have been justified. Direction of a verdict in the employee’s favor was therefore error.

In Berry v. Goodyear Tire and Rubber Co., 270 S.C. 489, 242 S.E.2d 551 (1978), the employee had been employed by Goodyear for 19 years. Goodyear had a release pay policy which provided certain sums to employees who were laid off or released. The employee claimed a medical disability and agreed to furnish Goodyear with a statement from his doctor relating to his inability to return to work. The statement was never produced, nor did the employee sign a medical records release form which was requested by Goodyear. Yet the employee argued that he was entitled to release pay benefits.

The Supreme Court of South Carolina held that the employee, who had engaged in a competing business with Goodyear while on paid sick leave, breached his duty of loyalty to his employer and such was sufficient to justify his termination and to disqualify "him from any right he may have had to 'release pay’ compensation.” Id. at 492, 242 S.E.2d at 553. We view the right to release pay as analogous to that of the right to either receive notice of termination or to be paid for the notice period upon termination. To be entitled to release pay or notice, an employee must not be in breach of contract.

In Barisa v. Charitable Research Foundation, Inc., Del. Super., 287 A.2d 679, aff’d Del. Supr., 299 A.2d 430 (1972), the employment contract provided for one year’s salary as severance pay in the event the employee was terminated without cause. In the event of termination for cause, the employee was to forfeit any right to further compensation. The employee admitted that he knowingly violated a company rule relating to disposal of surplus property by purchasing it at sale through another. The jury found in favor of the employee, but the appellate court held that a directed verdict should have been granted for the employer and stated:

"To require an employer to continue to employ an administrator after the discovery of clandestine arrangements and his admission of surreptitious conduct would be contrary to established principles of law. . . and morality. When an employer, because of an employee’s wrongful conduct, can no longer place the necessary faith and trust in an employee, he is entitled to dismiss such employee without penalty. This is especially true where the employee has a responsible position where faith and trust are required.” Id. at 682. (Citation omitted).

Although the contract in the case at bar is not as explicit as the contract in Barisa, the same policy considerations apply. To require a non-breaching employer to retain, for the notice period, an employee who has breached his duty of loyalty and trust, would be unfair. The D.C. Court of Appeals used a similar rationale in Brock v. Mutual Reports, 397 A.2d 149 (1979). The court found that the employee had been terminated for cause and stated:

"In every employment contract, the employee promises either expressly or by implication that he or she will perform the work in a diligent and reasonably skillful manner. . . . An employer, therefore, may discharge an employee who fails to perform his or her duties accordingly. . . . This rule is based on the practical consideration that an employer cannot be expected to retain an employee who is inefficient and cannot competently perform the job for which he or she was hired.” Id. at 152-53 (citations omitted).

The employment contract in H. Vincent Allen & Associates, Inc. v. Weiss, 63 Ill. App.3d 285, 379 N.E.2d 765, cert. denied (1978), is almost identical to the one before us. It provided for 90 days notice before termination, but was otherwise silent as to duration. The court stated that

"the legal relationship between these parties was an employment at will with the contract being subject to termination by either party upon giving of 90-day notice.... However, this fact does not and cannot eliminate the basic principle of the law regarding employment contracts which gives the employer the right of discharge for good cause even though such right is not stated in the agreement and even though the agreement may delineate certain specific causes for discharge.” Id. at 294-95,379 N.E.2d at 772 (citation omitted).

The Allen court quoted from Hosking v. Hollander Manufacturing Co., 114 Ohio App. 70, 175 N.E.2d 201 (1961). In that case, the employment contract contained a 60 day notice provision and the employee was terminated for cause. The Ohio Court of Appeals reversed a jury verdict in favor of the employee on the ground that an employee rightfully discharged for cause forfeits any termination pay which may otherwise have been due him under the notice provision of the contract.

An employment contract may be either for a stated term or at will. When the contract is at will, it may be terminated by either party at any time. Giardina v. Farms Co., 25 Md. App. 201, 208, 333 A.2d 366, 370 (1975). However, when the contract is for a stated term, it may only be terminated before the end of the term by just cause. Dorrance v. Hoopes, 122 Md. 344, 350, 90 A. 92, 94 (1914). In the case at bar, the contract requires 60 days notice before termination, i.e., the employee has a continual right to employment until 60 days after the employer gives him notice. Therefore, the right of an employee to be retained under the contract here is virtually indistinguishable from that under a contract for a definite term. The only difference is that the contract at issue here does not have a definite termination date. The contract is continually in force until 60 days after the giving of notice. The employee may not be discharged before the notice period has run, unless just cause for termination exists. If such cause exists, the employee may be terminated before the notice period has run.

In cases like the present one, a party to a contract may rightfully cancel or terminate the contract even though the other party has not breached it, as long as he complies with the notice provision. However, we can neither find nor imagine an interpretation of such a notice provision that would require a non-breaching employer to give an employee, who blatantly breaches his employment contract, the notice specified in the contract to which a non-breaching employee would be entitled. We think it is elementary that an employee, to be entitled to his wages, must fulfill the quid pro quo, i.e., do his job called for under the employment contract. In Maryland Credit Finance Corporation v. Hagerty, 216 Md. 83, 92, 139 A.2d 230, 234 (1958), the Court of Appeals stated:

"Where the breach of duty by the employee was wilful and material, as we find it to have been in the case before us, the Courts have held consistently that the employee has forfeited at least compensation which has not already been earned. The rule was recognized, although found inapplicable on the facts, in Shipley v. Meadowbrook Club, 211 Md. 142, 148. It was there said that: 'We accept the general principle that an agent who is guilty of fraud upon his principal, particularly where there is a conflicting interest, concealment, or a wilful and deliberate breach of his contract, may be denied compensation for his services.’ ”

Considering the evidence in the light most favorable to the employer, the evidence clearly raised a question of whether there was a material breach of the contract that would justify dismissal of the employee. The trial judge should have denied appellee’s motion for a directed verdict and submitted the case to the jury for its determination as to whether appellee breached the contract.

Judgment reversed; case remanded for a new trial.

Costs to abide the result.

      . The parties have agreed upon the Statement of Facts and jointly proffered same pursuant to Md. Rule 1028g.