text:
    J. LAURENCE MILLISON v. SECRETARY OF HEALTH AND MENTAL HYGIENE
    [No. 1189,
    September Term, 1975.]

      Decided June 29, 1976.

      The cause was argued before Frederick J. Singley, Jr., Associate Judge of the Court of Appeals of Maryland, James F. Couch, Jr., Associate Judge of the Seventh Judicial Circuit, and Robert F. Sweeney, Chief Judge of the District Court of Maryland, specially assigned.

      David M. Williams for appellant —cross appellee.

      Randall M. Lutz, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee — cross appellant.
   Singley, J.,

delivered the opinion of the Court.

From an order of the Circuit Court for St. Mary’s County, both J. Laurence Millison and Maryland’s Secretary of Health and Mental Hygiene (the Secretary) have appealed: Millison, from that part of the order which enjoins the sale or conveyance of lots in the Tarkill Subdivision without the prior approval of the Secretary; the Secretary, from that part of the order which declares that the Tarkill Subdivision is not subject to “Regulations Governing Water Supply and Sewerage Systems in the Subdivision of Land,” promulgated by the Secretary, and further declares the subdivision plat of Tarkill Subdivision, recorded among the Land Records of St. Mary’s County to be valid. We shall reverse that part of the order which enjoined the sale or conveyance of the lots and modify that part of the order which granted declaratory relief.

The origins of this litigation go back to May, 1966 when Millison took title to a tract of some 181 acres in the Second Election District of St. Mary’s County. In 1964, a part of the land which Millison later purchased had been subdivided into 32 lots, and the subdivision plan had been approved by the then County Health Officer. Three of these lots appear to have been sold prior to the conveyance to Millison. On 22 June 1970, apparently at Millison’s instance, the plan was reapproved by the same official. The subdivison plat was not recorded, however, among the St. Mary’s County land records until 7 June 1974.

On 1 February 1972, the Maryland State Department of Health and Mental Hygiene had adopted Regulations 10.03.28, “Regulations Governing Water Supply and Sewerage Systems in the Subdivision of Land,” effective 3 March 1972, a comprehensive scheme which was designed to insure that acceptable provision would be made for water supply and sewage disposal in subdivisions, under the direction of the Secretary.

Regulation 10.03.28.07 contained a saving clause:

“Any Preliminary Plan or Record Plat of a subdivision which has been submitted to the Approving Authority prior to the date of adoption shall not be required to comply with these regulations, if final approval and recordation, where required by law, is completed no later than six months from the date of adoption.”

As we noted earlier, Millison recorded the Tarkill Subdivision plat on 7 June 1974. In October, 1974, the Secretary, alleging that Millison was proposing to sell lots in the subdivision, brought an action for declaratory and injunctive relief against Millison in the Circuit Court for St. Mary’s County. From an order of that court enjoining the sale or conveyance of lots in the Tarkill Subdivision without the prior approval of the Secretary, Millison appealed. From that portion of the order which declared that the Tarkill Subdivision was not subject to Regulations 10.03.28.02J and 10.03.28.07 and that the subdivision plat was valid, the Secretary appealed.

Millison advances three reasons why the injunction should be vacated: (i) the trial court erred in permitting Mr. Walter Raum and Dr. William Marek to testify as experts; (ii) the trial court erred in entering an order enjoining the sale or conveyance of the lots; (iii) Regulations 10.03.28 arbitrarily deprived Millison of the use of his property without due process of law.

(i)

The trial court permitted Mr. Walter E. Raum and Dr. William Marek to testify as experts. Raum, who had been employed by the St. Mary’s County Health Department for 15 years, had been its director of environmental hygiene since 1968. He held a bachelor of science degree in agronomy from the University of Maryland and a master’s degree in environmental science from the Johns Hopkins University.

Dr. Marek, who had been county health officer and deputy state health officer for three years, testified that he was a graduate of the University of Maryland, with a bachelor of science degree in microbiology; of the University of Maryland Medical School and of the Johns Hopkins University School of Hygiene and Public Health, where he received a master’s degree in public health.

We discern no error here. The qualifications of an expert witness are a matter for the trial court, and unless the ruling is clearly erroneous or a clear abuse of discretion, it will not be reversed on appeal, Spence v. Wiles, 255 Md. 98, 102-03, 257 A. 2d 164, 166-67 (1969); Nizer v. Phelps, 252 Md. 185, 249 A. 2d 112 (1969); Continental Ins. Co. v. Kouwenhoven, 242 Md. 115, 218 A. 2d 11 (1966); Yudkin v. State, 229 Md. 223, 182 A. 2d 798 (1962). No challenge to the experts’ qualifications was advanced at trial, and we see no error or abuse of discretion here.

Raum testified that he had made about 15 test borings at Tarkill in 1969, and had visited the site again about two years prior to August of 1975. He was then permitted to testify from memory over objection as to soil types, topography and percolation, and to express an opinion that the soil was not suitable for the installation of a subsurface septic system, because such a system would probably fail during periods of wet weather.

Dr. Marek, who had visited the property on one occasion with Mr. Raum, was permitted to testify over objection that he concurred with Mr. Raum’s opinion' that potential health hazards would result from the use of subsurface systems on the Tarkill lots.

We grant that this testimony, which was not rebutted, could have been more comprehensive and precise. We think, however, that it met the test set out in State Dept. of Health v. Walker, 238 Md. 512, 520, 209 A. 2d 555, 559-60 (1965):

“This case presents a basic question of evidence, i.e., upon what conditions and under what circumstances may a witness deemed to be an expert, express an opinion in the field of his expertise. This Court has dealt many times with expert and opinion testimony. An expert opinion derives its probative force from the facts on which it is predicated, and these must be legally sufficient to sustain the opinion of the expert. Doyle v. Rody, 180 Md. 471, 25 A. 2d 457 [1942], The premises of fact must disclose that the expert is sufficiently familiar with the subject matter under investigation to elevate his opinion above the realm of conjecture and speculation, for no matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient factual basis to support a rational conclusion is shown. State, Use of Stickley v. Critzer, 230 Md. 286, 186 A. 2d 586 [1962], and cases cited therein; Hammaker v. Schleigh, 157 Md. 652, 147 Atl. 790 [1929]. The opinion of an expert, therefore, must be based on facts, proved or assumed, sufficient to form a basis for an opinion, and cannot be invoked to supply the substantial facts necessary to support such conclusion. The facts upon which an expert bases his opinion must permit reasonably accurate conclusions as distinguished from mere conjecture or guess. Marshall v. Sellers, 188 Md. 508, 53 A. 2d 5 [1947].”

Indeed, it requires a minimum of field work to support an expert’s opinion that a subsurface sewage disposal system proposed would not be acceptable, from a public health standpoint, in low-lying lots located in a tidal area where the water table is near the surface and subsoil conditions are not conducive to proper percolation, the result being that ground water would become contaminated.

(ii)

Here, Millison contends that the injunction issued by the trial court was overly broad because the sale or conveyance of a lot, standing alone, does not create a health hazard which may be abated by an injunction issued under Maryland Code (1957, 1971 Repl. Vol.) Art. 43, § 2. It is only when the lot owner proposes to construct an underground septic system for the disposal of sewage that injunctive relief of the sort fashioned by the trial court would be appropriate, Hebron Savings Bank v. City of Salisbury, 259 Md. 294, 300, 269 A. 2d 597, 600 (1970); Board of Health v. Crew, 212 Md. 229, 238-39, 129 A. 2d 115, 119-120 (1957), for not until that time would there be a threatened health hazard. In any event, the result which we reach obviates the need for injunctive relief.

(iii)

Millison next argues that the Secretary’s regulations arbitrarily and illegally deprive him of the reasonable use of his property without due process of law.

Code (1957, 1971 Repl. Vol., 1976 Cum. Supp.) Art. 43, § IF d grants a broad statutory mandate to the Secretary:

“To formulate and promulgate, with and on the advice of the commissioners of health and mental hygiene, rules, regulations, and standards for the purpose of promoting and guiding the development of the environmental, physical and mental hygiene services of the State and its subdivisions. To enforce rules and regulations promulgated by the Department of Health and Mental Hygiene.”

See also Code (1957, 1971 Repl. Vol.) Art. 43, §§ 388 and 396 which delineate the powers of the State Board (now the Department) of Health and Mental Hygiene as regards water pollution and sewage disposal.

Regulations issued by the Secretary are but another aspect of the exercise of the police power, Salisbury Beauty Schools v. State Bd. of Cosmetologists, 268 Md. 32, 300 A. 2d 367 (1973).

As Judge Hammond, for the Court of Appeals, noted in Allied American Mut. Fire Ins. Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 616-17, 150 A. 2d 421, 427 (1959):

“Essentially the police power of a state is no more than the power to govern. Baltimore Gas Co. v. State Roads Comm., 214 Md. 266, 279 [,134 A. 2d 312, 318 (1957)]; Capital Transit Co. v. Bosley, 191 Md. 502, 514 [,62 A. 2d 267, 273 (1948)]. The power justifies regulations designed to promote the public convenience or the general prosperity, as well as those to promote public safety, health and morals, since it extends to the satisfying of great public needs and the promotion of the general welfare. Maryland Coal and Realty Co. v. Bureau of Mines, 193 Md. 627 [, 69 A. 2d 471 (1949)]; Bacon v. Walker, 204 U. S. 311, 51 L. Ed. 499 [1907]; C. B. & Q. Railway v. Drainage Comm’rs, 200 U. S. 561, 50 L. Ed. 596 [1906]; Nebbia v. New York, 291 U. S. 502, 78 L. Ed. 940 [1934]. The current thinking of the Supreme Court would seem to be illustrated by Williamson v. Lee Optical Co., 348 U. S. 483, 99 L. Ed. 563 [1955], where the Court, in effect, held that state legislation, imposing regulations under the police power to correct an evil at hand, is valid if it might have been thought by the legislature that the particular measure was a rational way to correct it.
“The due process clause does not, any more than the contract clause, inhibit a state from insisting that all contract and property rights are held subject to the fair exercise of the police power. Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 558, 58 L. Ed. 721 [1914]. The exercise of the power is fair when the purpose is a proper public one and the means employed bear a real and substantial relation to the end sought and are not arbitrary or oppressive. The Supreme Court said in Erie R. R. Co. v. Williams, 233 U. S. 685, 700, 58 L. Ed. 1155 [1914]: ‘It is hardly necessary to say that cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a State to exert its reserved power or its police power.’ There are many holdings that enforcement of uncompensated obedience to a regulation passed in the legitimate exercise of the police power is not a taking without payment of just compensation. N. O. Public Service v. New Orleans, 281 U. S. 682, 687, 74 L. Ed. 1115 [1930]; Chicago, Burlington & Q. R. Co. v. Chicago, 166 U. S. 226, 255, 41 L. Ed. 979 [1897]; Noble State Bank v. Haskell, 219 U. S. 104, 110, 55 L. Ed. 112 [1911]; Capital Transit Co. v. Bosley, supra, at page 514 of 191 Md.”

See also the discussion in Potomac Sand & Gravel Co. v. Governor, 266 Md. 358, 367-75, 293 A. 2d 241, 246-50 (1972).

Another aspect of the exercise of the police power is found in zoning ordinances and regulations, where the cases hold that a property owner has no vested right to a use of his property, permitted at the time of acquisition and later prohibited or restricted unless there is a change in position, made in reliance on the permitted use, Steuart Petroleum Co. v. Board, 276 Md. 435, 442-44, 446-47, 347 A. 2d 854, 859-60, 861 (1975) and cases there cited.

Millison would have us hold that he changed his position when he purchased the tract, relying on the fact that lots in the subdivision could be sold as lots. We regard this argument as illusory, and no more available to him than to a purchaser of land zoned for business use, which is rezoned for residential use before it is devoted to business purposes, Serio v. City of Baltimore, 208 Md. 545, 119 A. 2d 387 (1956); Quinn v. County Comm’rs, 20 Md. App. 413, 316 A. 2d 535 (1974); Roberts v. Grant, 20 Md. App. 247, 315 A. 2d 103 (1974).

In his cross appeal, the Secretary argues that the lower court erred in holding that Regulation 10.03.28.07, the saving clause, was not applicable to the Tarkill Subdivision. Millison contends that 10.03.28.07 was to have only prospective, not retrospective operation, an argument which we think serves to obscure the issue. The saving clause was prospective in operation. It was designed to validate approval previously given to subdivision plans which owners had failed to record, provided that recordation was accomplished within six months of the effective date of the regulations, or by 31 July 1972. When Millison failed to do this, the approval which he had obtained in 1970 expired, and the subdivision plat which he recorded in 1974 should not have been accepted for recording because the approval required by Code (1957, 1971 Repl. Vol., 1976 Cum. Supp.) Art. 43, § 387C (d) 3 had expired:

“No State or local authority empowered to grant building permits or to approve subdivision plans, maps, or plats, shall grant any such permit or record or approve any such plan, map, or plat which provides for individual or community water supply or sewerage systems, or for solid waste acceptance facilities, unless such systems or facilities are found to be in conformance with the county plan, amendments or revisions thereof.”

For the reasons stated, we shall reverse that part of the order of the trial court which granted the injunction and modify and affirm as modified that part of the order which granted declaratory relief as follows:

“Accordingly, it is this 15th day of October, 1975 by the Circuit Court for St. Mary’s County, Maryland,
“ORDERED and DECLARED that regulation numbered 10.03.28.07 of ‘Regulations Governing Water Supply and Sewerage Systems in the Subdivision of Land’ is applicable to the plat of Tarkill Subdivision which is the subject of these proceedings and it is further,
“ADJUDGED, ORDERED and DECREED that the plat of Tarkill Subdivision as recorded among the plat book records for St. Mary’s County, Maryland in plat book DBK 11 Folio 62 is null and void and shall be expunged from said records.”

Order reversed in part and modified in part, and as modified affirmed; costs on appeal and below to be paid by appellant here and defendant below.


source: Caselaw Access Project

author: Singley, J.,

license: Public Domain

text:
    JOSEPH A. JOHNSON v. MARY PHYLLIS PILKERTON, Personal Representative of the Estate of Mattingly Gibbons Johnson
    [No. 1194,
    September Term, 1975.]

      Decided June 29, 1976.

    The cause was argued before Frederick J. Singley, Jr., and J. Dudley Digges, Associate Judges of the Court of Appeals of Maryland and James S. Getty, Associate Judge of the Fourth Judicial Circuit, all specially assigned.

      John P. Rue, II, with whom were Dorsey & Rue on the brief, for appellant.

      NealP. Myerberg for appellee.
   Singley, J.,

delivered the opinion of the Court.

Mattingly Gibbons Johnson died domiciled in St. Mary’s County on 10 November 1973. The principal asset of his estate was a 128 acre tobacco farm, 60 acres of which, containing most of the improvements, he devised to one of his daughters, Mary Phyllis Pilkerton. The remainder of the farm, 68 acres, he devised to his other three daughters and to his son, the appellant, Joseph A. Johnson, as tenants in common. This remaining 68 acres consisted primarily of open fields and woodlands.

Because the estate included cash in an insignificant amount, and federal estate taxes, Maryland state and inheritance taxes, and debts and expenses of administration amounted to $39,986.71, a “Reconciliation” was proposed under which each child would pay a part of the required cash, to be determined by the percentage of the estate which each took under the will. To this end, the appraised value of the farm, $157,440.00 was allocated among the children in the proportion which each received, without attributing any value to the improvements. Since the appellant, Joseph A. Johnson, took a 1/4 interest in 68 acres, or 1/4 of 68/128 of $157,440.00, he benefited to the extent of $20,946.00, or 10.4% of a gross estate of $202,330.60, and was therefore charged with 10.4% of $39,986.71, the cash required to settle the estate, or $4,149.42 which Johnson refused to pay. He countered with a petition filed in the Orphans’ Court for St. Mary’s County, seeking an apportionment of taxes under Maryland Code (1957, 1969 Repl. Vol.) Art. 93, § 11-109, now Code (1974), Estates and Trusts Article § 11-109.

The thrust of Johnson’s argument is that since the land comprising the tobacco farm was appraised at $900.00 per acre, his 1/4 share of 68 acres should have been valued at $15,250.00 and not $20,946.00, and his contribution to the cash required should have been reduced accordingly.

While § 11-109, the Uniform Estate Tax Apportionment Act, provides a mechanism for the apportionment of federal estate tax and Maryland estate tax, it makes no provision for the payment of Maryland inheritance tax or for the raising of cash which may be needed to pay debts and expenses of administration. It also provides in § 11-109 (k) that it shall be applicable, “[e]xcept as otherwise provided in the will, or other controlling instrument....”

The short answer to Johnson’s contention is that the controlling instrument here was the Reconciliation, which allocated among the beneficiaries the responsibility of providing the cash needed to settle the estate. The orphans’ court, after a hearing, found as a fact that all interested parties had been present at a previous hearing and had agreed to the Reconciliation. We cannot say that this finding was clearly erroneous, Maryland Rule 1086.

Order affirmed, costs to be paid by appellant.

      . We have been unable to verify these figures precisely. The discrepancy, however, is minimal.


author: * Gilbert, J.,

text:
    DANIEL H. OVERMYER a/k/a D. H. OVERMYER and/or DAN H. OVERMYER v. LAWYERS TITLE INSURANCE CORPORATION
    [No. 1206,
    September Term, 1975.]

      Decided June 29, 1976.

      The cause was argued before  Gilbert, Menchine and Moore, JJ.

      David C. Daneker and Paul W. Madden, with whom were Constable, Alexander & Daneker on the brief, for appellant.

      John J. Ghingher, Jr., and Deborah E. Hunt for appellee.
   * Gilbert, J.,

delivered the opinion of the Court.

In this appeal, Daniel H. Overmyer a/k/a D. H. Overmyer and/or Dan H. Overmyer, seeks to reverse a judgment of the Circuit Court for Baltimore County (Proctor, J.) in which Lawyers Title Insurance Corporation was awarded monetary damages against Overmyer in the amount of $59,752. The judgment was entered after a hearing on an attachment on original process. Md. Rule G55.

Overmyer poses a tetrad of questions to us, asserting that an affirmative answer to any one of them requires a reversal of the judgment.

Before we undertake to discuss the issues raised in this case, it is necessary to set forth briefly the scenario giving rise to the appeal.

B & E Sales Company obtained, in the Circuit Court for Baltimore County, on May 7, 1971 (Jenifer, J.), a monetary decree against D. H. Overmyer Co., Inc., because Overmyer, Inc., breached, as landlord, a lease with B & E Sales. The decree provided that Overmyer, Inc., was to pay B & E Sales $7,749.99 and, in addition thereto, Overmyer, Inc., was directed to pay B & E Sales “.., $1,400.00 per month beginning as of May 1, 1971, . .. and the balance to be paid thereafter on the first day of each succeeding month beginning June 2,1971, and up to and including February 1, 1976.”

Apparently, Overmyer, Inc., decided to sell the Baltimore County warehouse, the lease to which, we infer, brought about the litigation with B & E Sales. The property was sold tb A group of individuals, which included among its number Daniel H. Overmyer. Lawyers Title was engaged to insure the title of the purchasers. The title company discovered the unsatisfied judgment of B & E Sales against Overmyer, Inc. Seemingly, after some preliminary discussion, the title company agreed to issue a policy provided that Overmyer, Inc., and Daniel Overmyer, individually, would indemnify the title company against any loss it might incur if the B & E Sales’ judgment was not paid pursuant to its terms.

In February, 1974, Lawyers Title was advised by a letter from counsel for the property owners that the judgment was in default and that the judgment creditor was threatening to execute upon the judgment and seek a sheriffs sale of the property. The title company satisfied the judgment creditor by paying to it $52,752 and receiving from the creditor an assignment of its judgment against Overmyer, Inc.

Lawyers Title, on August 21, 1974, filed against the appellant Overmyer a narr in assumpsit, together with a motion for summary judgment, an affidavit in support of the motion, various exhibits, an attachment on original process, an affidavit in support of the attachment, and a bond. The sheriff of Baltimore County was instructed to attach and “leave where found” Overmyer’s undivided one-tenth (1/10) interest in the property known as 7636 Canton Center Drive. Notice of the proceedings was sent to Overmyer by certified mail, return receipt requested, but it was twice returned, once marked “refused addressee not home to receive” and the other time simply “unclaimed.” When the second attempted service was unsuccessful, counsel for the title company caused to be sent by ordinary mail, addressed to what appears to be a home address in New York State, and to a business address in New York City, copies of the pleadings together with all allied papers. On the same date, December 9,1974, Perry Raabe, Esq., one of the attorneys for the title company, in response to a telephone call to the Overmyer residence, received a telephone call from Overmyer. In the course of the ensuing conversation, Overmyer was advised of the pending litigation. Eighteen days later, Lawyers Title moved for the entry of a judgment nisi and it was entered on the same day, December 27,1974.

Overmyer, on January 10, 1975, filed a motion to strike the judgment nisi assigning as reasons that: (1) there had been no bona fide effort to serve him; (2) the entry of the judgment nisi eighteen (18) days after the telephone notice was “... inequitable and improper and constituted surprise, irregularity and mistake, ...” depriving Overmyer of his opportunity to raise a meritorious defense; (3) the “notice” to Overmyer of the time to plead recited that he had 60 days in which to answer and that a shortening of that period was a surprise, mistake or irregularity; (4) that he had a meritorious defense which he was denied by reason of the judgment nisi', and (5) that the total amount of the judgment should have been for an amount less than $10,000. An order directing Lawyers Title to show cause why the judgment nisi should not be stricken was issued. Before that reply was forthcoming, Overmyer filed a paper writing titled “Answer” in which he asserted as a “first defense” the general issue plea in assumpsit. He also embodied in the “Answer” a first, second, and third affirmative defense going to the merits of the title company’s claim. Overmyer further answered the motion for summary judgment.

Lawyers Title responded to the show cause order on February 14, 1975, and the case was set for hearing. Notice of the hearing date was mailed to counsel “.. . around September 15th or 20th .. ..” Three days before the hearing, that is, on October 17, 1975, Overmyer requested a “continuance or postponement” on the ground that he had another case scheduled for trial in Toledo, Ohio, on the same day, October 20, 1975. Judge H. Kemp MacDaniel refused to postpone the case, and the matter reached Judge Proctor on October 20, 1975. Overmyer again requested a postponement. Judge Proctor denied it. After hearing brief testimony, a judgment nisi was entered in favor of the title company on the debt [short note]. Following the overruling of a motion for a new trial, judgment absolute was recorded on November 3,1975.

Overmyer argues that Judge Proctor erred in four respects in entering the judgment. We shall consider each contention as posed.

I.

“The Judgment of Condemnation Absolute was improperly entered because it was founded on a Judgment of Condemnation Nisi entered without proper prior notice to the Defendant.”

Subtitle G of the Md. Rules prescribes the procedure to be followed in seeking an attachment on original process. Such a procedure is available whenever the plaintiff has a matured or unmatured ex contractu or ex delicto claim against a person who, inter alia, is a non-resident owning property or credits within this State. Md. Rules G40, G40a, G41a. Upon the filing of a declaration, affidavit in support thereof, documentary evidence of the claim, a bond to the State in an amount equal to the claim, and instructions to the sheriff as to the description and location of the property to be attached, Md. Rule G42, the court may issue an order directing the attachment. Md. Rule G44. The writ is served by the sheriff by posting a copy of the writ upon the property of the defendant. Md. Rule G46. All the above were caused by Lawyers Title to be accomplished. At issue, here, is whether there was compliance with Md. Rule G48. That rule provides:

“In addition to the writ of attachment, the clerk shall issue a writ of summons to the defendant. Where the defendant cannot 'be served with the j writ of summons, and has not. voluntarily appeared, the plaintiff shall make reasonable efforts to ascertain the actual whereabouts of the defendant and to bring to the knowledge of the defendant that an attachment on original process is pending against him. A judgment of condemnation nisi shall not be entered until the plaintiff shall satisfy the court by affidavit that he has notified the defendant or has made a bona fide effort to locate and notify him.”

An affidavit made by Perry Raabe, Esq., recited in detail the efforts made to effect service upon Overmyer. Mr. Raabe narrated in his affidavit the gist of his telephone conversation with Overmyer. We think the affidavit discloses that the attempts to serve Overmyer were bona fide and that the trial court properly so held.

Overmyer next asseverates that the “notice” to him of the suit contained a caveat that he had sixty (60) days in which to answer, and that the entry of the judgment nisi prior to the expiration of sixty (60) days was error. The notice to plead read:

“You are hereby notified that an Attachment on Original Process proceeding, or law suit, has been filed against you by Lawyers Title Insurance Corporation, Plaintiff in the above-entitled proceedings, in the Circuit Court for Baltimore County, State of Maryland, to recover on the causes of action therein stated and attached hereto, pursuant to Rules G40-61, Maryland Rules of Procedure and related laws. You must plead or answer the Declaration, or law suit alleging the causes of action, within sixty (60) days from the date of delivery noted upon your Return Receipt to this Notice, or else Judgment by Default may be entered against you. This Notice and Service is made pursuant to Rules G48, G51(a), 307(d)(8) and 107(a)(2) and (b), Maryland Rules of Procedure, and pursuant to Article 75, Sections 78, 94-100, Annotated Code of Maryland (1957 Ed., 1969 Rpl. Vol.), and Courts and Judicial Proceedings, Article (1974 Vol.), Section 6-103, 6-301 and 6-304, annotated [sic] Code of Maryland.”

We perceive no merit in Overmyer’s contention. 4 Poe’s Pleading and Practice § 554 (6th ed. H. Sachs 1975) [hereinafter referred to as Poe (Sachs)] and 2 J. Poe, Pleading and Practice in Courts of Common Law § 554 (5th ed. H. Tiffany 1925) both state that an attachment proceeding consists of two distinct parts, one, the attachment, and the other, a suit against the non-resident styled the “short note case.” When a defendant appears, he does so in the “short note case,” not in the attachment. It is apparent from the record that Overmyer did, under the guise of an “answer,” file a general issue plea, in addition to his “affirmative defenses,” and, thus, appeared and put the matter at issue before the trial court. Moreover, the fact that the judgment nisi had been entered prior to Overmyer’s appearance did not jeopardize appellant because in a hearing resulting from appellant’s motion to strike the judgment nisi, the hearing judge, while denying the motion, nevertheless ordered that “.. . no Judgment of Condemnation Absolute be entered until after a hearing on the merits.” Such an order had the practical effect of retaining appellee’s lien while simultaneously assuring appellant that no further action would be taken thereon until after a trial on the merits.

Moreover, we think appellant misreads the notice requirements of the Md. Rules. The notice of suit is directed to the short note case, not the attachment. 4 Poe (Sachs) § § 554-58. See also 2 J. Poe, Pleading and Practice in Courts of Common Law § § 554-58 (5th ed. H. Tiffany 1925).

In the instant case, Overmyer did not enter his appearance within the prescribed time, and the title company, having fully complied with Rule G48, was entitled to the entry of a judgment nisi. Such a judgment is án inchoate lien which operates to condemn specific property and render it liable to future execution and judicial sale, after successful trial, the obtaining of a judgment of condemnation absolute and the issuance of a writ of fieri facias thereon. 4 Poe (Sachs) § 690. A judgment nisi is a specific lien, and should final judgment be obtained, the lien relates back to the time when the property was attached and eliminates subsequent claims and liens from priority. Id. Of course, if the plaintiff does not prevail at trial, the attachment fails. 4 Poe (Sachs) § 556; Philbin v. Thurn ex rel. Cook, 103 Md. 342, 351, 63 A. 571, 574 (1906); Randle v. Mellen, 67 Md. 181, 188, 8 A. 573, 575 (1887).

Overmyer also assails the constitutionality of the Maryland procedure for attachment on original process as it was applied in the case now before us. He bottoms his argument on the Due Process Provisions of the 14th Amendment, pointing out that the Supreme Court of the United States has “carefully articulated” the proper test to be applied “. .. with regard to instances where pre-judgment attachment of a debtor’s property is involved.” The Court, in Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972), struck down replevin procedures in use in Florida and Pennsylvania after noting that in neither State was the debtor offered a pre-deprivation of property hearing. 407 U. S. at 90. Similar holdings relative to pretrial disposition were handed down by the Court in Bell v. Burson, 402 U. S. 535, 91 S. Ct. 1586, 29 L.Ed.2d 90 (1971); Sniadach v. Family Finance Corp., 395 U. S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969).

The fallacy in Overmyer’s position is that unlike Fuentes, Sniadach or Bell, there has been, in this case, no deprivation of property prior to a judicial hearing. At best, an attachment, an inchoate lien, was laid upon the one-tenth interest Overmyer had in the realty that was the subject of the title insurance property, and he was not subjected even to temporary loss, pendente lite, of the possession of the property. Mitchell v. W.T. Grant Co., 416 U. S. 600, 94 S. Ct. 1895, 40 L.Ed.2d 406 (1974). Compare, however, Roscoe v. Butler, 367 F. Supp. 574, (D. Md. 1973), wherein Chief Judge Northrop held unconstitutional the then Maryland District Court procedure for attachment after two non ests. The distinction between Roscoe and the instant case is that here the objectionable feature found in Roscoe, a clerk cloaked with the authority to issue the attachment, is not present. In the case subjudice, the right to issue is reserved to the court, and then only after a “... review of the documents required . . .” to be filed. Md. Rule G44.

As we see it, the procedure followed in the matter now before us comports with due process of law and adequately accommodates the antagonistic interests of the parties. We hold that the Maryland Rules relative to attachment on original process as applied in the case at bar are constitutional.

II.

“The Circuit Court abused its discretion in denying Defendant’s [Overmyer’s] Motion for Continuance or Postponement.”

On the day of the hearing on the merits, October 20,1975, appellant’s attorney moved for a continuance or postponement because Overmyer, appellant’s only witness, could not attend. The reason for Overmyér’s absence was that he was to appear in an Ohio court in an action that appellant believed exposed him to greater liability than the Maryland suit. Judge Proctor examined an affidavit made by the appellant’s New York attorney which indicated that the Ohio suit had been instituted on September 14, 1975, removed to the federal district court, and then sent back to the Ohio courts on October 10, 1975. It appeared that appellant never requested a continuance or postponement of the Ohio proceedings although appellant knew of the October 20, 1975, Maryland hearing date from the time notice was sent by the court to the parties on September 15, 1975. The hearing judge denied the motion and stated that in light of this sequence of events, the appellant should have advised the Ohio court of the prior hearing date in Maryland.

We agree with Judge Proctor’s analysis and ruling. It is unmistakable from a reading of the chronology of events that the Maryland hearing date was firmly set long before a trial date could have been set in Ohio. That Overmyer thought the Ohio case would be settled and, thus, the conflict in the trial dates would disappear is no valid reason, in our view, for not seeking a postponement of the Ohio litigation. Appellant’s miscalculation of settlement is not sufficient reason to postpone the Maryland case. Judge Proctor properly exercised his discretion in denying the motion for continuance or postponement. Md. Rule 527. See Bugg v. Cecil County Comm’rs, 261 Md. 507, 276 A. 2d 31 (1971); King v. Mayor and Council of Rockville, 249 Md. 243, 238 A. 2d 898 (1968); Johnson v. State, 237 Md. 283, 206 A. 2d 138 (1965).

III.

“The Circuit Court erroneously found Defendant [appellant] Daniel H. Overmyer liable for a sum greater than that specified in the Agreement of Indemnity.”

The Indemnification Agreement executed by Overmyer, in consideration of the title company’s issuing, “without exception,” a policy, provided that Overmyer would indemnify and hold harmless the Lawyers Title from any payment that they were called upon to make. The “hold harmless” proviso embraced “. .. all liability, loss, costs, damage, detriments and expense which it may incur or suffer, including without limitation, court costs and attorneys’ fees, resulting from or by reason of, or arising out of or in any way connected with the issuance of . . . [a] binder or . .. policy . . ., or the filing, enforcement or attempted enforcement of any .. . liens .. ..” The judgment that B & E Sales held against Overmyer was described as follows:

“Judgment dated May 7, 1971 in favor of E & E Sales Company [sic] in the amount of $7,749.99 together with cost of appeal thereof amounting to approximately $2000.00, and payments in the amount of $1400.00 per month to date pursuant to said judgment.”

The indemnity agreement was dated August 30, 1972. Overmyer asserts that the policy plainly indicates that he is only liable for payments of judgment to the date the policy was issued, or a total of $30,749.99 plus costs, assuming no interim payments had been applied against the judgment. Needless to say, the title company has a somewhat different view of what the language contained in the indemnity agreement means. They argue, inter alia, that they hardly would have written a policy undertaking to pay all sums due by Overmyer to B & E Sales in excess of the $30,749.99 when it is apparent that their exposure would be some $20,000 more.

Judge Proctor reasoned as follows:

“. . . [Paragraph 2 on page 3 of the Indemnification Agreement provided that the Indemnitors which include Daniel H. Overmyer, individually, the defendant, before me would indemnify Lawyers Title from and against any and all liability, loss, cost, damage, detriments and expense, so forth, and then picking up arising out of or in any way connected with the issuance such binder or binders and policy or policies that setforth of [sic].
This Indemnification Agreement is dated August 30th, 1972. Immediately prior thereto Lawyers Title through its agent Real Estate Title Company Incorporated issued a [sic] ‘Interim title insurance binder,’ dated April 23, 1972 which specifically provided that they would be furnished, that is Lawyers Title would be furnished an Indemnification Agreement. This correctly described the holder of the monetary decree as B & E Sales Company and states that the decree provided for the payment of fourteen hundred dollars per month by D. H. Overmyer Company, Inc. to B & E Sales Company starting May 1, 1971 and ending on February 1,1976.
The decree also provides for open court costs in amount of twelve hundred sixty-six dollars and thirty-six cents.
That paragraph to be noted makes no reference to the amount of the monetary decree of May 7, 1971 signed by Judge Jenifer which was, according to paragraph 4, in the amount of seven thousand seven hundred forty-nine dollars and ninety-nine cents.
That omission is accounted for by the fact ... that the basic amount of the decree had been paid at the time of the execution of the Indemnification agreement and at the time of the settlement in this case.
So, we have here a- man who is obviously an experienced businessman signing an Indemnification agreement, which according to the only testimony before me, was prepared either on his behalf or [on] behalf of the company bearing the name of D. H. Overmyer which loosely describes the monetary decree, but carries with it a point of preference, mainly the interim Title Insurance binder which specifically sets forth the obligations which ... [were] indemnified by Mr. Overmyer.
Any ambiguity in the Indemnification Agreement is resolved by this [incorporation of the binder by reference. So, it is my judgment that under the decree stated of fact judgment should be entered in favor of the plaintiff against the defendant in [the] amount of fifty-two thousand seven hundred fifty-two dollars plus reasonable attorney fees.”

We think the phrase “to date pursuant to said judgment” was intended by the parties to mean not that Overmyer agreed to hold harmless the title company only to the date of the indemnity agreement, but rather to hold them harmless for the payments required to the date set forth in the judgment, i.e., February 1, 1976. When the title policy binder is read in conjunction with the title policy, no other reasonable interpretation can be made. We are unpersuaded that there was a mutuality of mistake by the parties because it is apparent from a reading of the record that appellant, Overmyer, knew precisely what payments Overmyer, Inc., was required to make on the judgment against the corporation.

Furthermore, the indemnity agreement calls upon Overmyer to repay Lawyers Title for any and “all liability” they sustained as a result of issuing the title policy. As we have previously observed, the title company was required to pay to B & E Sales $52,749.99 in order to protect the policy insured. Overmyer is liable to the title company for that compelled expenditure.

IV.

“The Circuit Court erred in rendering an in personam judgment against the Defendant Daniel H. Overmyer because he was never personally served, and by his appearance, did not subject himself to a personal judgment.”

Overmyer bottoms his argument in the above-quoted contention upon three decisions by the Court of Appeals, scilicet, Eshelman Motors ex rel. Ottenheimer v. Scheftel, 231 Md. 300, 189 A. 2d 818 (1963); Miller Bros. Co. v. State, 201 Md. 535, 546-47, 95 A. 2d 286, 291-92 (1953); and Potomac Steamboat Co. v. Clyde, 51 Md. 174 (1879). Eshelman holds that a court has revisory powers over its own judgments for thirty days following entry of the judgment. In cases more than thirty days old, a judgment may only be set aside for fraud, mistake, or irregularity, and even then only if a meritorious defense to the plaintiffs claim is shown. Himes v. Day, 254 Md. 197, 254 A. 2d 181 (1969). Potomac states that:

“There is no doubt of the legal right of the defendant to appear for that purpose [i.e., to move to strike a judgment condemnation and quash execution] in the attachment case, without thereby being within the jurisdiction of the court in respect to the suit against him personally.” 51 Md. at 179.

See also Miller Bros., supra at 546-47.

Overmyer overlooks the very next paragraph of the opinion which states:

“When we examine the petition and motion . .. made by the appellee, ... we discover nothing therein to show that his appearance by attorney was in any other suit except in the attachment case, for the purposes before mentioned, and this being so, such appearance cannot be construed to be a voluntary appearance in the action of assumpsit. That suit had beeft discontinued, he had never been served with process therein, and consequently the court could have no jurisdiction or power to render a judgment in personam against him in that case. Wynn v. Wyatts, 11 Leigh, 584.” 51 Md. at 179.

Although the appellant, in the case at bar, did move on January 10, 1975, to strike the judgment nisi, he did not endeavor preliminarily to quash the attachment. Instead, on February 5, 1975, appellant filed, as we have previously noted, an “Answer.” The “Answer” contained the general issue plea in assumpsit and a narration of affirmative defenses which clearly went to the merits of the title company’s claim as well as praying that “. .. the contract between Plaintiff [Lawyers Title] and Defendant [Overmyer] be rescinded and/or that the Declaration be dismissed with costs against the Plaintiff, and that Plaintiffs attachment on original process be quashed....”

When Overmyer filed his “Answer,” which was in reality a plea, he subjected himself, personally, to the jurisdiction of the court. He might have avoided personal jurisdiction by moving to strike the judgment nisi and then moving to quash the attachment. 4 Poe (Sachs) § 554. We reject Overmyer’s contention that, because he also asked in the “Answer” that the attachment be quashed, he has done all required of him. At the expense of repetition, we reiterate that he pleaded to the merits of the case and, thus, subjected himself personally to the court’s jurisdiction.

We pointed out in Wolfe v. Madison Nat’l Bank, supra note 1, that it is usually improper for an attorney’s fee to be included in the principal sum of the judgment. We said, “[i]nterest should not be allowed upon that... portion of... [a] verdict concerned with the attorneys’ fees as such fees are part of the costs and costs do not bear interest.” 30 Md. App. at 531-32. Following our holding in Wolfe v. Madison Nat’l Bank, supra, we modify the judgment to read: “Judgment in favor of the plaintiff, Lawyers Title Insurance Company against the Defendant Daniel H. Overmyer, a/k/a D. H. Overmyer, and/or Dan H. Overmyer, for the sum of $52,752, current money with interest from October 20, 1975, and an attorney’s fee of $7,000, and costs.”

Judgment modified and as modified affirmed. \

Costs to be paid by appellant.

      . We note that the judgment should have been entered in the following form: “Judgment absolute in favor of the plaintiff, Lawyers Title Insurance Corporation, against the defendant, Daniel H. Overmyer, etc., for the sum of $52,752, current money with interest from October 20, 1975, and an attorney’s fee of $7,000, and costs.” See Wolfe v. Madison Nat’l Bank, 30 Md. App. 525, 531-32, 352 A. 2d 914, 918 (1976).

      . The judgment was affirmed by the Court of Appeals in an unreported, per curiam opinion, D. H. Overmyer Co. v. B & E Sales Company, Inc., No. 181 (Md., filed January 17, 1972).


author: Lowe, J.,

text:
    RONALD L. NOBLE v. DIRECTOR, PATUXENT INSTITUTION
    [No. 1017,
    September Term, 1975.]

      Decided June 30, 1976.

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

      Philip L. Marcus, Assigned Public Defender, for appellant.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Sunsher, State’s Attorney for Baltimore City, and Stephen Wilder, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

A jury of the Criminal Court of Baltimore determined that appellant was a defective delinquent thereby consigning him indeterminately to Patuxent Institution. In this appeal, appellant raises eight issues relating to errors which allegedly occurred during the trial. We find him correct in only one.

A psychologist from Patuxent Institute was qualified as an expert and expressed his opinion that appellant was a defective delinquent within the meaning of Md. Code, Art. 31B, § 5. He explained that his opinion was based upon three things:

“ . .. the raw data plus the information in the chart plus the interview by the diagnostic staff.”

The “raw data” to which he referred were a series of psychological tests upon which he placed great reliance in formulating his opinion:

“Q As a matter of fact, if for some reason you would not be able to make the tests, you would not actually be able to make a determination, could you?
A I may in my own mind but I certainly wouldn’t come into Court without them.
Q You would not testify without having.given the tests?
A I could not.”

The four tests were described in general by the psychologist:

“There are four tests known as the standard battery. There is a Wechsler Adult Intelligence Scale, which is self-explanatory. It produces an intelligence test, an I.Q., both verbal and performance sections. It is also interpretive of feeling status. The second is a Rorschach, which is a series of ten ink blots. It is a projective test. The third is the Bender-Gestalt, a series of nine cards of geometric patterns that the patient is asked to copy as he sees them. This test will tell us something about any neurological problems that he has, any brain damage. It also elicits many other emotional factors such as frustration tolerance, something about how he relates to people — men and women, and this kind of information. The fourth is a series of drawings called the house, tree, person.
Q Could you speak up, Mr. Esserwein?
A The fourth is a series of drawings called house, tree, person, in which he is required to draw each of these figures. It too is a projective test which simply means that the patient tends to place in these figures elements of his personality which he is not aware that he is doing.”

We pause to note that imperative to a finding of defective delinquency is that the defendant have

"... either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society ... .” Art. 31B, §5.

Apropos of that requirement, the psychologist testified that the tests of appellant revealed that:

“He has a verbal I.Q. of 68. The mental defective range is from 60 to 69. His verbal I.Q. is 68, performance I.Q. is 77, full scale is 70. This is one point off of the mental defective range. It is called borderline defective range. In terms of his emotional makeup, perhaps it is best to reach the summary.
Q Please.
A ‘The patient’s value system and emotions remain essentially that of a child. Feeling inadequate as a man and dominated by strong dependency needs, he feels himself at a disadvantage in coping with the environment. Frustration tolerance is low when he doesn’t get his way and at these times he can erupt into explosive behavior.’ ”

The psychologist was asked:

“Q What attitude, if any, did your testing, did your examination of Mr. Noble reveal as his, with respect to his attitude towards women?”,

and he replied:

“The test results revealed that he, that is his basic problem but it’s more or less of a double bind upon him and that he places upon Linda Redd and would tend to place upon any woman that he was living with. On the one hand, one horn of the dilemma is that he wants the woman to mother him but it must be undercover. He doesn’t want this out in the open. She is not supposed to mention it. And the other horn of the dilemma is she must look upon him as a very strong he man who can make decisions and she can lean on him so that outwardly she must show that she is leaning upon him while covertly it is the other way around. Now, when either one of these demands are threatehed or frustrated, this is what used to be a temper tantrum then comes into play. It takes over his whole personality and he goes into a rage and loses control of himself. This was the major element on the test.
Q Let’s get to the last part of the definition, which is that it clearly demonstrates an actual danger to society so as to require such confinement and treatment. Did you find this in Mr. Noble?
A Yes.
Q What is the basis for this finding?
A Both the results of the test and increasing severity of the assault pointing to a growth process of this pathology. It is increasing in intensity.”

He described the conclusions he drew from the test results:

“Q When you were describing the house, tree, person test.. .
A Yes.
Q ... you said something to the effect of a person’s character traits coming out that are in him that he is not aware of?
A Personality traits, yes, that he places in these, projects onto the figures things about himself that he is not aware of, that he is not aware that he is putting there.”;

however, his explanation of how he arrived at his conclusions was less than satisfactory.

“Q What is your evidence that, in general or in specific — first take the general — that a person does really do that, that is, he takes from inside himself without knowing it and puts it on paper?
A Just all of the past research on these four tests, known as the standard battery, the fact that they are generally accepted by all the behavioral sciences throughout the country.
Q Generally accepted?
A Yes.
Q Have you done any research?
A No.”

The cross-examination by appellant’s counsel sporadically elicited some explanation of each of the tests. For example,

“Q Now, you did administer a Rorschach Test, is that correct?
A That’s correct.
Q Is that sometimes known as an ink blot test?
A Yes.
Q And that means that you show some — they are not really ink blots, are they?
A No, they are manufactured cards.
Q But they look like ink blots?
A Yes.
Q And you show these to the patient or subject?
A That’s correct.
Q And he is supposed to explain what he sees in them?
A That’s correct.
Q Now, those responses on this test does not in any way connect with the patient’s past history, do they? Isn’t that a test that is due on the spot, so to speak?
A Yes.
Q It has nothing to do with the past history. And could you describe very briefly how you do a Bender-Gestalt?
A It is a series of nine geometric patterns which I place before the patient one at a time and simply instruct him to copy them just the way he sees them.
Q And, again, they are related to what he is, how he thinks at the time as opposed to history, isn’t that correct?
A What is being tested is the person, his thinking, his feelings. It has nothing to do with any, you know, concrete historical events.
Q And that is true of the projective drawings, isn’t it?
A. Yes.
Q Drawing test. Now, wouldn’t you say that you are very dependent in making your analysis, or within this particular case, on the results of those tests?
A That’s correct.”

However, when appellant sought to have the source material for the psychologist’s opinion (which source material had been subpoenaed) placed in evidence before the jury, he was denied that right.

“Q You have just been handed a group of documents. Can you identify what those documents are?
A This is the file on Ronald Noble that contain the test material and the Social Service Report and the Diagnostic Staff Report that is kept in the Psychology Department as a regular part of the business.
MR. MARCUS: Your Honor, I offer this collection of papers collectively as Defendant’s Exhibit, I think it is Number One.
MR. WILDER: Objection, Your Honor.
THE COURT: For what purpose?
MR. MARCUS: Your Honor, these are, as has been indicated to you, the actual materials and I think it is only fair for the jury to be able to examine the materials.
MR. WILDER: I object to this too.
THE COURT: Is it a duplication of reports in there?
MR. MARCUS: Your Honor, I believe there is some duplication but it is not total duplication.
THE COURT: What does it consist of, the raw data of the tests actually made by Mr. Esserwein?
MR. MARCUS: I would hope so, Your Honor.
THE COURT: Is that what it contains, Mr. Esserwein?
THE WITNESS: Yes, Your Honor. I feel strongly that there is an ethical question involved.
THE COURT: Is it the raw data?
THE WITNESS: Yes, Your Honor.
THE COURT: Of your tests?
THE WITNESS: Yes, Your Honor.
THE COURT: Of what you made your opinion on?
THE WITNESS: Yes, sir.
THE COURT: Objection sustained as to the introduction of that in evidence.”

Presumably to preserve the issue for appeal and to provide a basis for cross-examination of the expert, appellant’s counsel asked:

“All right, Your Honor. May they be marked simply for identification?”,

but even that was denied.

“THE COURT: No, they may not.”

Although restricted by the ruling, appellant bore on, attempting to elicit the foundation for the psychologist’s damning conclusions:

“Q Is it your testimony that you cannot look at any individual test protocol and get any meaningful information from that?
A I didn’t say that. I didn’t say you could not look at a test protocol and get meaningful information.
Q What is a test protocol?
A I didn’t finish the question.
Q Go ahead.
A You were talking about looking at a given response. None of them have any meaning in and of themselves. They develop a profile. Every response is taken into account. This must be analyzed in several different ways. Without the use of reference books, I don’t know how to pick it out for you.
Q Do you have those reference books in Court?
A No, I do not.
Q Well, could you give us an example, for example, looking at several of those tests or the whole batch of tests and tell us this particular response when asked to, this response and that response?
A No, I cannot.
Q You cannot. Why not?
A I wouldn’t know where to start explaining my thinking or my analysis. You don’t have the background of technical knowledge used. I don’t have the reference works to work with. It’s a three-to-four-hour job. I just wouldn’t know where to start. I’d have to start training you in Rorschach signs. This would take a couple of years.
“THE COURT: Is it possible, Mr. Esserwein, for a lay person, a lawyer or a judge, not trained in the field of psychology to interpret that raw data in any way whatsoever?
“THE WITNESS: It took me eight years to learn it with the help of reference works.”

The lay understanding of the raw data was dismissed as impossible:

“THE COURT: Well, again, is it possible that a person . ..
THE WITNESS: I don’t believe so.
THE COURT: ... not trained in the field of psychology would be able to look at the raw data and draw a conclusion as to whether or not Mr. Noble is a defective delinquent based on your other data in those reports?
THE WITNESS: It would be impossible.”

We think the court erred when, having ruled that the data upon which the opinion was founded could not be admitted, it further declined to permit the disputed data to be marked for identification, thus effectively precluding us from reviewing the material upon appeal. Without the disputed material before us, it is impossible to decide whether the discretion exercised by the trial judge in excluding it was abused.

In Councill v. Sun Ins. Office, 146 Md. 137, 147, appellant complained that a letter was erroneously excluded from evidence. The Court, pointing out the absence of the letter from the record on appeal, declined to assume error, saying:

“ . . . but as the letter does not appear in the record it is impossible for us to say whether the appellant was injured by that ruling, or to assume that it was erroneous.”

The holding in that case presupposes a burden upon appellant to produce the excluded evidence for our review. Here, the appellant did all that was required of him by moving to mark the disputed documents for identification. It is the refusal of the court below to comply with that motion that prevents us from reviewing its determination not to admit the raw data into evidence. Though it is impossible for us to say that appellant was injured by that decision, it is equally impossible to hold that he was not. The trial court should have marked the material for identification when requested to do so by counsel. Duncan v. McTiernan, 151 Conn. 469. Accord Bonnette v. Molloy, 209 N. Y. 167.

In Wimpling v. State, 171 Md. 362, 376, the Court of Appeals recognized that expert opinion testimony should only be resorted to when “it clearly appears that it is essential to a full and fair presentation of the case and will aid the trier of fact in dealing with it,” because such testimony is of the “ ‘very lowest order and the most unsatisfactory character.’ ” Impliedly then, expert testimony should be scrutinized carefully and subjected to a rigid test of the foundation upon which the opinion was formed. The Wimpling Court quoted Jones on Evidence, saying:

“ ‘It has been said of expert testimony: ‘It is not desirable in any case where the jury can get along without it, and is only admitted from necessity, and then only when it is likely to be of some value.’ ‘The evidence of experts is of the very lowest order, and the most unsatisfactory character.’ All testimony founded upon opinion merely is weak and uncertain, and should in every case be weighed with great caution. ‘The unsatisfactory nature of such evidence is well known.” Wimpling v. State, 171 Md. at 376.

Since the very nature of a proceeding to determine defective delinquency compels total reliance upon opinion testimony by experts in the fields of psychology and psychiatry, every avenue should be left open to test the opinions expressed by such witnesses which, if persuasive, will resign the defendant to indefinite imprisonment. The most effective way of undermining the impact of an expert opinion is by exposing the weakness of its foundation through an attack on the facts upon which the opinion is based. By doing so, the accused may be able to convince the jury that the “opinion” was erected upon a foundation of sand and should not be given credence.

The Court of Appeals has placed great importance upon permitting the eliciting of all of the facts upon which an expert opinion is based. After stating that one of the most firmly established principles enunciated by that Court is that an expert witness must predicate his opinion on premises of fact, Judge Prescott, in State, Use of Stickley v. Critzer, 230 Md. 286, 290, said that “no matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient basis to support a rational conclusion is shown.”

In Dickinson-Tidewater v. Supervisor, 273 Md. 245, 253, the Court, through Judge Levine, said:

“Unquestionably, the facts upon which the opinion of an expert witness is predicated must be stated, Fink v. Steele, 166 Md. 354, 363, 171 A. 49 (1934); this is so because the opinion of an expert must rest upon facts legally sufficient to form a basis for his conclusion, Stickell v. City of Baltimore, 252 Md. 464, 474, 250 A. 2d 541 (1969). If the facts relied upon for the expert opinion are not revealed, it becomes impossible to ascertain whether the conclusion drawn from them possesses sufficient probative force; or is not mere conjecture or speculation, State, Use of Stickley v. Critzer, 230 Md. 286, 290, 186 A. 2d 586 (1962); Fink v. Steele, supra.”

And in Fink v. Steele, 166 Md. 354, 363, which appears to have been the foundation for both Critzer and Dickinson-Tidewater, the Court quoted itself in Berry Will Case, 93 Md. 560 at 580 and several others, saying;

“ ‘There must be a basis shown for the formation of a rational conclusion which is not a mere conjecture, but is knowledge. Hence, if that basis is trivial or insufficient, or does not furnish, in the judgment of the court, an adequate ground to support such a conclusion as amounts to knowledge, the witness should not be permitted to express any conclusion at all. Facts must be stated so that it may be seen whether the conclusion deduced from them by the witness has any relation to, or can be fairly said to be dependent on, them.’ ”

See also State Health Dep’t v. Walker, 238 Md. 512, 520; Millison v. Secretary of Health and Mental Hygiene, 32 Md. App. 165 (1976).

When an expert opinion is admitted without the factual foundation upon which it was formed, a jury is left with no basis upon which to test the reasonableness of what may have been (for all that is known) mere simplex dictum. Without some scale upon which to weigh the assertion, lay jurors, called upon to pass judgment in a technical field, may accept as mirabile dictum, the expert’s judgment in substitution for their own.

The State argues that the introduction of the raw data would not aid the jury in its deliberation because such material would tend to confuse and mislead them and thus its admission is within the discretion of the trial court, citing Purks v. State, 226 Md. 43. However, since the evidence is not before us we cannot so conclude. We have no way of knowing whether the exclusion was a proper or an improper exercise of judicial discretion. Indeed from the record it would appear that even the trial judge did not review the evidence but relied solely upon the opinion of the psychologist that neither judge nor jury could comprehend the mysteries of psychological testing. This is not an exercise of judicial discretion but rather a judicial exercise of a psychologist’s discretion.

When such evidence is excluded and its review denied us by the court below, we cannot acquiesce in the State’s suggestion that even if error, the exclusion was harmless. Recognizing that defective delinquency need not be proved beyond a reasonable doubt, nonetheless, under the guidelines of Dorsey v. State, 276 Md. 638, we cannot ¡ conclude that, even under a preponderance test, the error was harmless. As noted in Dorsey, at 657-658,

“The abnegation of a particular rule upon which the defense intended to rely may often inflict more damage than initially apparent; a meritorious line of defense may be abandoned as a result; an important witness may not be called; strategies are often forsaken. The future course of the trial inevitably must be changed to accommodate the rulings made. It is the impact of the erroneous ruling upon the defendant’s trial and the effect it has upon the decisional process which is of primary concern, not whether the error is labelled as constitutional or nonconstitutional.”

Judgment reversed.

Case remanded for new trial:


text:
    McKINNEY DRILLING COMPANY v. MACH I LIMITED PARTNERSHIP
    [No. 1219,
    September Term, 1975.]

      Decided June 30, 1976.

    The cause was argued before  Gilbert, Menchine and Moore, JJ.

      Robert D. Powell for appellant.

      Charles R. Donnenfeld, with whom were James K. Stewart, Thomas P. Gilliss and Arent, Fox, Kintner, Plotkin & Kahn, on the brief, for appellee.
   * Gilbert, J.,

delivered the opinion of the Court.

The American Arbitration Association explains that “[arbitration is the voluntary submission of a dispute to a disinterested person or persons for final determination.” This appeal has resulted from an arbitration award which was vacated by Judge Joseph M. Mathias in the Circuit Court for Montgomery County. In order to determine whether the circuit court action was proper, we must set out a brief recitation of the circumstances underlying this appeal.

McKinney Drilling Company (McKinney), appellant, contracted with Mach I Limited Partnership (Mach), appellee, to supply materials and construct concrete caissons for an office building being constructed by Mach in Maryland. Mach refused to pay McKinney the approximately $51,000 contract balance for the work performed, asserting that the concrete did not meet the strength specifications required by Mach. The contract between the parties provided for resolving such disputes. Under the terms of the contract, disputes initially were to be submitted to the architects of the project. After they had made their determination, if either party was dissatisfied, it could demand that the dispute be submitted to the American Arbitration Association whose decision shall be final and enforceable under the law of the project situs.

In this case, the architects considered the dispute and, on November 1, 1973, notified McKinney that testing results indicated that the concrete did not meet the contract strength specifications. McKinney demanded arbitration of the dispute, and Mach counterclaimed in the arbitration proceeding for a minimum of $75,000 damages which it averred resulted from delays and additional construction costs arising out of the concrete’s weaknesses. The parties selected an arbitrator from a list supplied by the Association, and hearings were held.

In addition to the parties to the dispute, Maloney Concrete Company, the concrete supplier to McKinney, was permitted to participate indirectly. On May 28, 1974, the arbitrator found in favor of McKinney by awarding it $51,107.80 plus six percent interest from November 28, 1973. There were no findings of fact made. The counterclaim of Mach was not decided. The only statement made by the arbitrator, besides the amount of the award, was that “[t]his award is in full settlement of all claims submitted to this arbitration.”

On June 18, 1974, McKinney filed a petition in the Circuit Court for Montgomery County, pursuant to Md. Ann. Code, Courts and Judicial Proceedings Art. § 3-227, seeking confirmation of the arbitration award inasmuch as Mach had not yet paid the amount awarded. Mach answered and both parties moved for summary judgment. The motions were denied, according to McKinney, because the pleadings and arguments of counsel left doubt in the judge’s mind as to how Mach’s counterclaim had been treated by the arbitrator. McKinney then sought to reopen the arbitration for the purpose of clarifying the award. On June 27, 1975, the court granted the motion and ordered the parties to exchange questions and agree upon those to be asked of the arbitrator.

Prior to the inquisition of the arbitrator by the parties, the arbitrator notified the American Arbitration Association that his construction company, subsequent to the arbitration award in this case, submitted a bid to develop a building on property owned by Maloney Concrete Company. The parties were also notified, and Mach immediately objected to the arbitrator’s continuing to act in this dispute. When Mach’s objection was overruled by the Association, Mach then moved that the court strike its order reopening the arbitration. The motion was denied, but the court issued a supplemental order permitting the parties to ask questions of the arbitrator concerning his prior relationship with Maloney Concrete Company.

Pursuant to that order, a hearing was held on August 13, 1975, in which McKinney and Mach inquired of the arbitrator as to his relationship with Maloney. The arbitrator explained that he bought concrete from Maloney to use in his company’s construction projects. The record indicates that the relationship was ongoing at the time the arbitrator considered the McKinney-Mach dispute, although the amount of concrete bought in recent years had been extremely small. When questioned about his treatment of Mach’s counterclaim, the arbitrator stated “... I neither granted it [the counterclaim] or denied it. I did not consider it because it was outside the scope of the arbitration.” The arbitrator further said that he had issued no findings of fact or conclusions of law because neither is required by the Association’s rules.

Subsequent to the arbitrator inquiry hearing, Mach, on September 11,1975, filed an amended answer to the petition for confirmation in which Mach asserted that the arbitration award should be vacated because (1) not all the claims were adjudicated; (2) Maloney participated in the arbitration hearings even though Mach had no agreement with Maloney; and (3) the arbitrator did not disclose his own relationship with Maloney. Both McKinney and Mach again moved for summary judgment. McKinney’s motion was denied, but summary judgment was granted for Mach, and Judge Mathias ordered that the arbitration award be vacated.

No transcript of the hearing or findings of fact, if any, or conclusions of law reached by the judge are included in the record. While McKinney’s brief and argument advance a number of issues for our review, we think the only question is whether the hearing judge erred in granting Mach’s motion for summary judgment.

The duties of an appellate court, when reviewing a motion for summary judgment, are extensively discussed in Lynx, Inc. v. Ordinance Products, Inc., 273 Md. 1, 327 A. 2d 502 (1974):

“In reviewing the propriety of the grant of a summary judgment we are concerned primarily with deciding whether a factual issue which was material to the resolution of the controversy existed and whether the trial judge was legally correct.... Where the record shows that there was no such genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and it is shown that the movant is entitled to judgment, the entry of summary judgment is proper.” 273 Md. at 8. (Citations omitted).

This is the test we shall apply in this case.

McKinney does not dispute the material facts that the arbitrator never expressly ruled on Mach’s counterclaim even though it was properly before him, did not disclose his ongoing relationship with Maloney Concrete, and allowed Maloney, indirectly, to participate in the arbitration hearing through its counsel and vice-president although it had no agreement with Mach. It is clear to us that the hearing judge granted summary judgment based on Mach’s amended answer which was grounded on the above recited undisputed facts.

We were told on oral argument that there was a verbal opinion delivered by the hearing judge at the time he granted summary judgment for Mach, but no transcript thereof is included within the record so that we are unable to pass on the substance of the judge’s opinion. We, therefore, of necessity, review the record before us as the basis for the summary judgment.

McKinney admits on appeal that it was an error for the arbitrator not to consider the counterclaim, but asserts that the court should have corrected the award accordingly or remanded the issue to the arbitrator for determination. Mach counterargues that the arbitrator exceeded his authority in making a final award “in full settlement of all claims submitted” when the arbitrator did not even consider the counterclaim.

We note (1) that paragraph number 7.10.1 of the contract between McKinney and Mach provides that “[a]ll claims .. . shall be decided by arbitration . . (2) the claim and counterclaim arise from the same factual dispute; and (3) the arbitrator’s award purports to settle all claims submitted to him. It is manifest from the questions asked of the arbitrator that the counterclaim was presented, but that he failed to consider it under the mistaken belief that it was outside the scope of the arbitration. Patently, such belief is inconsistent with the statement in the arbitration award that the “... award is in full settlement of all claims submitted to the arbitration.” (Emphasis supplied).

Under Md. Ann. Code, Courts and Judicial Proceedings Art. § 3-224 (b) (3), an arbitrator’s exceeding his power is sufficient reason to vacate an arbitration award. Perhaps Judge Mathias concluded that the arbitrator exceeded his power by not considering all the claims that were before him. See Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., supra note 5. Consequently, as a matter of law, the judge was justified in granting summary judgment for Mach and vacating the arbitration award.

The same result would have been reached by the judge if he had decided that the arbitrator was not neutral at the time the claim was considered. According to the “Construction Industry Arbitration Rules,” an arbitrator must disclose any information which may impair his neutrality. Courts Art. § 3-224 (b) (2) permits an arbitration award to be vacated if “[t]here was evident partiality by an arbitrator appointed as a neutral, corruption in any arbitrator, or misconduct prejudicing the rights of any party.” The hearing judge had before him the evidence showing that the arbitrator’s ongoing relationship with Maloney Concrete might have tainted the arbitrator’s neutrality. Moreover, the evidence disclosed that Maloney’s vice-president was permitted by the arbitrator to attend the arbitration sessions and to testify notwithstanding Mach’s motion to exclude all witnesses. Furthermore, Maloney’s counsel actively participated in the sessions as co-counsel for McKinney and, inferentially, simultaneously, did so to protect Maloney from the liability to which it had subjected itself by virtue of its indemnity agreement with McKinney. Such evidence was sufficient, as a matter of law, to permit the judge to draw a rational inference that the arbitrator was not neutral.

If the foregoing reasons were not enough to vacate the award, we observe that the arbitrator permitted Maloney’s vice-president to attend all sessions and testify even though all witnesses were to be sequestered. Maloney, although not a party to the arbitration, had an interest in the outcome. Based on that decision by the arbitrator, Judge Mathias could have believed that the arbitrator exceeded his power in permitting Maloney’s presence and participation, and, thereby, denied Mach procedural fairness. See Chillum-Adelphi Volunteer Fire Dept. v. Button & Goode, Inc., 242 Md. 509, 517, 219 A. 2d 801, 806 (1966).

As we have previously stated, we do not know the precise grounds upon which the hearing judge bottomed his ruling because there is no transcript of the judge’s opinion included in the record. Any one of the three possible alternative routes we have discussed herein would have justified the vacating of the arbitration award.

Judgment affirmed.

Costs to be paid by appellant.

      . American Arbitration Association, “Construction Industry Arbitration Rules,” at 3 (1973).

      . Although McKinney denies that Maloney actively participated, the appellant concedes that (1) despite the arbitrator’s order that all witnesses be sequestered, Maloney’s vice-president was permitted to attend the arbitration sessions “... as a ‘person with a direct interest ..and he testified as a concrete expert; (2) McKinney’s counsel was assisted by Maloney’s attorney who played an active role in the arbitration hearings; and (3) Maloney had agreed to reimburse McKinney for any award against McKinney because of weak concrete.

      . An answer and a motion for summary judgment may be superfluous under Courts Art. 8 3-227 (b). That subdivision of the section mandates that the court “... shall confirm the award, unless the other party has filed an application to vacate, modify, or correct the award ....” This issue was not raised and decided in the hearing court, and, therefore, it is not before us. Md. Rule 1085. We note, however, that Mach’s “Answer” and “Amended Answer” both include numerous defenses which were apparently interpreted by the hearing judge and the parties as a petition to vacate the award. Courts Art. § 3-224.

      . McKinney raised the following issues in its brief:
      “Point I — The Maryland Uniform Arbitration Act Applies to the Arbitration Before the Court.
      Point II — (a) The Court Below Erred in Failing to Correct the Award as it Decided all the Issues Between the Parties.
      (b) The Failure on the Part of the Arbitrator to Decide the Counterclaim was not Evidence of Bias or Partiality Giving Rise to a Presumption of Prejudice, Fraud in Procuring the Award, or Other Undue Means.
      Point III — The Court Below Erred in Failing to Recommit the Award to the Arbitrator For Decision of the Counterclaim.
      Point IV — The Arbitration Award is not Void on Account of the Failure of the Arbitrator to Disclose his Trivial and Inconsequential Dealings with Maloney.
      Point V — The Various Claims of Impropriety on the Part of the Arbitrator in connection with his Presiding over the Parties at Hearing are Without Merit.”

      . The clause further states that arbitration may be waived. No contention of waiver is presented here.
      Paragraph number 7.10.1 is from a standard contract. An almost identical clause was at issue in Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., 21 Md. App. 307, 320 A. 2d 558 (1974), rev’d on other grounds, 274 Md. 307, 334 A. 2d 526 (1975), and was deemed to be a broad arbitration provision requiring that “... all issues other than those expressly and specifically excluded must be submitted to arbitration.” 21 Md. App. at 327.

      . American Arbitration Association, “Construction Industry Arbitration Rules” § 18 (1978), provides:
      “A person appointed as a neutral arbitrator shall disclose any circumstances likely to create a presumption of bias or which might disqualify him as a neutral arbitrator, including any past or present relationship with the parties or their counsel.”


text:
    JACKSON MARINE SALES, INC. v. STATE DEPARTMENT OF ASSESSMENTS AND TAXATION
    [No. 1228,
    September Term, 1975.]

      Decided June 30, 1976.

    The cause was argued before M orton,  Gilbert and Lowe, JJ.

      Joel L. Katz, with whom was Barry J. Dalnekoff on the brief, for appellant.

      Ward B. Coe, III, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The seemingly simple issue to be decided here has the appearance of an elementary school riddle:

“When is a boat not a boat?”

The answer,

“When it is inventory”,

is, like most answers to riddles, obscured by its obviousness.

Appellant, Jackson Marine Sales, Inc., is a Pennsylvania Corporation selling boats in Cecil County, Maryland. As most of us are wont to do, it sought whatever tax exemptions it might lawfully claim. Md. Code, Art. 81, § 9A, upon which it chose to base its claim for exemption from personal property taxation, begins by stating:

“The following tangible personal property shall be exempt from assessment and from State, county and city ordinary taxation, except as otherwise stated herein, each and all of which exemptions shall be strictly construed:” (Emphasis added).

There follows a list enumerating various types of property to be exempted, including commercial inventory; however, the exemption of commercial inventory is “[fjrom county and city taxation only” and is qualified by subsections relating to exceptions to that exemption from local taxation in certain counties. Commercial inventory or “the stock in business of every person, firm or corporation engaged in any manufacturing or commercial business” is not exempted from State taxation but only from local taxation. The Legislature having left to local option the imposition of county or city inventory taxes, while keeping such inventories subject to full State taxation, indicated by that dual treatment in § 9A that it distinguished between certain personal property which constituted stock in trade and the same property owned individually for general use.

Also included among the long list of exemptions is one applying to the primary item appellant stocks for sale. Subsection (g) of § 9A exempts:

“All ships, vessels, boats, or watercraft of whatever kind, which are not more than one hundred feet in overall length or which are regularly engaged in commerce in whole or in part, outside the territorial limits of the State ....”

It should be noted that the Legislature has not exercised local option as to this exemption and it applies both to State and local taxation.

Because the boats comprising appellant’s stock in trade were under 100 feet, appellant applied for an exemption from personal property taxation, relying upon this subsection. It also sought a refund of taxes it claimed were erroneously paid for the preceding five years. The State Department of Assessments and Taxation denied the application for exemption and refund. This was followed by similar denials by the Maryland Tax Court and the Circuit Court for Cecil County.

In interpreting the exemption for boats, which as then written, employed basically the same language as the present subsection, the Attorney General, in an opinion reported at 46 Op. Att’y Gen. 233 (1961), determined that the boat exemption was like other exemptions for personal property provided at that time (e.g., motor vehicles and wearing apparel) and was not applicable when the subject items constituted stock in trade. The opinion further reasoned that the Legislature had tacitly endorsed the administrative interpretation by the Department of Assessments and Taxation, that the boat exemption was not applicable to boats which are stock in trade or held as inventory, by failing to amend the subsection to provide to the contrary even though it had had ample opportunity to do so, having added sixteen exemptions after the 1961 opinion was written. We find that reasoning to have magnified merit today, some fifteen more years having elapsed without any legislative change.

Appellant places singular emphasis upon the statutory use of the prefatory adjective “All” in subsection (g), and argues that the subsection carries no limitation to boats privately owned so as to exclude boats comprising inventory, reciting the first rule of legislative interpretation, i.e., that legislative intent is first to be sought in the words of the statute, Atlantic, Gulf v. Dep’t of Assess. & T., 252 Md. 173, 177. While it is arguable that the omission of any qualification as to a boat’s ownership or use (as in subsection (k) exempting property located at a taxpayer’s residence) connotes that the exemption should apply to boats held as stock in trade as well as those owned privately, it is more probable that, having dealt separately and in a different manner with the exemption from taxation of commercial inventories in subsection (e), the Legislature intended the exemption of boats in subsection (g) to apply only to boats other than those which comprised “stock in business” of a commercial enterprise. This is a more reasonable interpretation and coincides with the interpretation adopted by the Department of Assessments and Taxation since its passage, and with the 1961 opinion of the Attorney General abovementioned.

That the Legislature viewed a boat (or other object) in one light when personally owned and used, and in another light when held by a retailer as part of stock in trade or inventory, is further supported by the statutory enumeration of taxable property in § 8 of Art. 81. Section 8 (2) describes tangible personal property as distinguished from the stock in business of manufacturing or commercial business, made taxable by § 8 (6). Moreover, different standards of assessment are prescribed for personal property generally, § 14 (b) (2) (full cash value), than for stock in business or inventory, § 15 (fair average value). See St. Dep’t of A. & T. v. Greyhound Comp., 271 Md. 575, 584.

The exemption statute itself directs that “exemptions shall be strictly construed,” § 9A (a). Furthermore, if there is any real doubt as to whether an exemption applies in a particular circumstance, the Court of Appeals directs us to resolve that doubt in favor of the State. Perdue v. St. Dep’t of Assess. & T., 264 Md. 228, 232-233; Macke Co. v. St. Dep’t of Assess. & T., 264 Md. 121, 133.

Doubt obviously existed on the subject before 1961 when the interpretation of the exemption here under consideration was prayed of, and granted by, the Attorney General. It is significant that the agency interpretation existed seven years before the Attorney General’s opinion and during that time no change was forthcoming from the Legislature. Even in the fifteen years since the Attorney General’s opinion was issued, the Department of Assessments and Taxation has continued to enforce its interpretation without any indication by the General Assembly that the interpretation was in error. This acquiescence by the Legislature is indicative that its intent is being carried out.

“It is well settled that the construction of a law by the agency charged with its enforcement, acquiesced in by the legislature, is entitled to great weight and should not be disregarded except for the strongest and most urgent reasons.” Public Serv. Comm’n v. Howard Res., 271 Md. 141, 152; but see St. Dep’t of A. & T. v. Greyhound Comp., supra.

Doubt no longer exists in our view. The Legislature clearly had no intention of exempting under § 9A (g) boats held as inventory.

Appellant’s final contention, that the circuit court erred by refusing it the right to present additional evidence upon appeal from the tax court, is totally without merit. At argument appellant submitted this issue on brief, admitting that it was “not really important.” Without regard to its importance, it clearly is not supportable under the applicable statutory law. The Administrative Procedure Act, Md. Code, Art. 41, § 244, et seq., upon which appellant’s argument relies, expressly excludes the State Tax Commission (whose adjudicatory functions were assumed by the Md. Tax Court, Md. Code, Art. 41, § 318) from its provisions. Art. 41, § 244(a).

This case was transferred from the Court of Appeals to the Circuit Court for Cecil County pursuant to the holding in Shell Oil Co. v. Supervisor, 276 Md. 36, 40, that review of tax court cases shall be by circuit court pursuant to Md. Code ((1957), 1969 Repl. Vol.) Art. 81, § 229 (1), which provides, in part:

“The circuit court of the county or the Baltimore City Court of Baltimore City, shall determine the case upon the record of the Maryland Tax Court and may affirm, reverse, remand or modify the order appealed from; provided, that, unless such order is erroneous as a matter of law or unsupported by substantial evidence appearing in the record, it shall be affirmed.” (Emphasis added).

Appellant had no right to produce additional evidence upon appeal to the circuit court.

Judgment affirmed.

Costs to be paid by appellant.

      . An additional contention by appellant is that it falls under the alternative language of § 9A (g) exempting boats “regularly engaged in commerce in whole or in part, outside the territorial limits of the State____” Appellant argues that because its boats are delivered from outside the State for sale here, that exemption should apply. The short K answer is that upon delivery and presentation for sale here the boats are no longer “regularly” engaged in commerce outside the State.