author: Wilner, J.,

text:
    GERALD S. KLEIN, Trustee v. LLOYD O. WHITEHEAD et al.
    [No. 1068,
    September Term, 1977.]

      Decided July 12, 1978.

      The cause was argued before Davidson, Liss and Wilner, JJ.

      Gerald S. Klein, with whom were Abraham L. Adler and Thomas E. Webb on the brief, for appellant.

      George J. Goldsborough, Jr., with whom were Goldsborough, Franch & Collett on, the brief, for appellee Whitehead. Sally D. Adkins, with whom were Raymond S. Smethurst, Jr., and Adkins, Potts & Smethurst on the brief, for other appellees.
   Wilner, J.,

delivered the opinion of the Court.

Charles Parsons was a man of modest means, who “was looking for something a little better than what I had.” He found instead something a lot worse than what he had, a discovery which ultimately required him to declare bankruptcy. The method by which he proceeded from the status of modest means to that of no means prompted this lawsuit by appellant Gerald Klein, the trustee in bankruptcy, against those persons whom Mr. Klein believes were responsible for the decline in Mr. Parsons’ fortunes. Unfortunately, the factual basis of Mr. Klein’s claim is somewhat complex, requiring a detailed recitation of what occurred.

In November, 1972,t Mr. Parsons earned his living as a truck-driver and through his ownership of a small home heating oil delivery business. His total assets, including his house and business, amounted, at best, to $6,500. With these resources, on November 4, 1972, he signed a contract to purchase a restaurant business, known as Carter’s Scales and Restaurant, from one Paynter Dukes for $75,000. He gave a deposit of $500, the balance of $74,500 being due in cash at time of settlement (on or before 30 days) “contingent upon the purchaser being able to secure suitable financing.”

When it became apparent that Mr. Parsons would be unable to obtain conventional financing from a bank, the real estate agent, Monroe Haltaman, contacted Edgar Dryden, one of the appellees here. Mr. Dryden was an international vice-president of the Plumbers and Pipe Fitters Union who lived on the Eastern Shore and, according to his testimony, had bought and sold property and “loaned a couple of people money” in the past. In an attempt to induce Dryden to put up the necessary funds to complete the purchase, Haltaman arranged a meeting between Parsons and Dryden, who theretofore had never met.

Dryden, at the time, was not told about the November 4 contract. He and Parsons met on several occasions to discuss the venture and Dryden’s financing of it; and, according to Dryden, “I told him that if I got in this venture at all there had to be certain safeguards, there had to be some control over the salaries....” Dryden further indicated that he would “have a document prepared by my attorney to present on the day of ratification” presumably incorporating these safeguards and controls.

On the evening of November 24, 1972, Mr. Haltaman arrived at the Dryden home, during the course of a party, with a new contract of sale, already signed by Dukes (the seller) and by Mr. and Mrs. Parsons. This contract showed a purchase price of $65,000 (a $10,000 reduction), no contingencies with respect to financing (“cash at the time of settlement”), and Ruth and Edgar Dryden as buyers., along with Charles and Doris Parsons. Settlement was to be held the following Monday (November 27) in the law office of Don Richardson, who, at that point, represented Dukes. Dryden testified that he asked Haltaman why he (Dryden) should sign the contract, to which the agent responded, “Well, the Dukeses don’t think it would be a viable contract unless you sign it. They want someone else to sign on there. It won’t be any responsibility of yours to sign it except let the Dukeses know that it will go through with.” Upon that basis, according to Dryden, and in the belief that it was the Parsonses and not the Drydens who were actually buying the business, Mr. and Mrs. Dryden then and there signed the contract. At that point, Dryden was under the impression that Parsons would put up $20,000 and that he (Dryden) would finance the balance of $45,000.

According to Dryden, “after I signed the Contract I began to think that night, and I called my attorney [Lloyd Whitehead, another of the appellees] and told him I made a boo-boo and I’d like to get out of it.” As a result, Whitehead arranged a meeting, in Whitehead’s office, among Richardson, Dukes, Parsons, Dryden, and Whitehead for the purpose of attempting to extricate Dryden from the contract. This attempt was unsuccessful. Dryden stated that, “I was informed by Mr. Richardson and the Dukeses that they were not going to let me off the hook if I did not proceed with the contract” and that, if there was a default, he would be sued “for the total amount of the money.”

At that point, Dryden still believed that Parsons would come up with $20,000, and that his obligation was for $45,000. He contacted the Truckers & Savings Bank (the same bank that had originally rejected Parsons’ application) and arranged for a $25,000 mortgage loan to the Parsonses, secured by the property to be purchased and the guarantee by Dryden and his wife, and a $20,000 personal loan to him, the proceeds of which he would, in turn, lend to the Parsonses.

On December 1, 1972, the parties gathered again in Mr. Whitehead’s office, for settlement. At this point, Dryden first learned that Parsons was able to produce only $8,500 — not the expected $20,000. As a result of the shortfall, settlement was temporarily postponed, and Dryden and the Parsonses paid another call on the banker. He agreed to lend Dryden an additional $11,500 on an open promissory note, and Dryden agreed to re-lend this money to Parsons. Appropriate notes and other loan documents from Dryden to the bank and from the Parsonses to Dryden, evidencing this transaction, were executed. Everyone then returned to Whitehead’s office, where Whitehead read, and the parties ultimately signed, a document prepared by Whitehead entitled “Agreement of Sale.”

This Agreement, in its first six paragraphs, recites essentially the background to that point — the contract entered into by Parsons to buy the restaurant, his inability to finance the purchase, and the Drydens’ role as financiers. Paragraph 7 obligated Parsons to devote full time to the business, and to keep it open 24 hours a day, seven days a week. Paragraphs 8 and 9 provided for a weekly salary of $75 to Doris Parsons and $125 to Charles, until such time as “all indebtedness against the said business is paid”, at which point Charles’ salary would increase to $200. In the interim, the $75 differential (between $125 and $200) was to be paid “toward the reduction of indebtedness over and above the first and second mortgage”.

In succeeding paragraphs, the written approval of Dryden was required for any purchases in excess of $25 and for “any financial commitments [by Parsons] personally or major purchases ... as this may adversely affect the credit of PARSONS and may endanger the security of DRYDEN who has guaranteed certain indebtedness of PARSONS and who is owed money by PARSONS____” These restrictions would last only so long as Parsons was indebted to Dryden. Paragraph 13 obligated Parsons to procure a life insurance policy on his life for $65,000, payable to his creditors, including Dryden and the bank. Paragraph 14 obligated Dryden to conduct a semi-annual audit of the business, and entitled him to 40% of any profits earned by the business. Paragraph 15 provided that, if Parsons desired to “eliminate DRYDEN from the business” or if Parsons defaulted on his obligations, the business would be appraised by three appraisers (two appointed by Dryden), all indebtedness would be paid, and Dryden would be paid an amount equal to 40% of the difference. The next two paragraphs required Parsons to open and maintain four checking accounts and to attempt to negotiate with a major oil company to “get gasoline services into the business.”

Finally, paragraph 19 provided that “as long as DRYDEN is owed any money by PARSONS or has guaranteed any indebtedness of PARSONS”, Whitehead would be “Attorney for this business” subject to replacement by Dryden. All legal fees of the business were to be paid by the business.

Along with this agreement, the following other documents were also duly executed in implementation of the various transactions:

(1) Deed to the restaurant property from Dukes to Charles and Doris Parsons (the Drydens not being parties to the deed);
(2) Mortgage for $25,000 from Mr. and Mrs. Parsons to the Truckers & Savings Bank, secured by the restaurant property, payable over a 10-year period, with interest at the rate of 8% per annum, in monthly installments of $303.32;
(3) Second mortgage for $20,000 from the Parsonses to the Drydens, also on the restaurant property, payable in 120 monthly installments of $264.31, interest being at the rate of 10% per annum;
(4) Note for $13,476, payable in 48 monthly installments of $280.75, from the Parsonses to the Drydens secured by a chattel mortgage on the inventory and furnishings of the business;
(5) Settlement sheet showing the “Purchaser” to be “Mr. & Mrs. Charles Parsons”;
(6) Promissory note from the Parsonses to Whitehead’s firm for $980.62 to cover the settlement costs; and
(7) Promissory note from the Parsonses to Whitehead’s firm for $1,000 to cover Whitehead’s fee for legal services.

Whitehead stated that, at the time of settlement, he had made it clear to Parsons that Dryden travelled extensively as part of his job with the union, that he was “strictly doing the financing” and that “he was not participating in the restaurant. He didn’t want to run a restaurant.” Parsons testified that he understood that to be the case — that he and his wife would operate the restaurant, and that Dryden’s role was simply to provide enough money to enable him (Parsons) to purchase the business.

Less than three weeks later, the repayment schedules on the second mortgage and the note to Dryden were modified, apparently by agreement between Dryden and Parsons. Payments on the second mortgage were increased from $264.31 per month ($3,168 per year) to $4,000 per year, and payments on the note were increased from $280.75 per month ($3,362 per year) to $75 per week ($3,900 per year). This new arrangement was evidenced by a written memorandum dated December 20, 1972, from Dryden to Parsons.

It soon became apparent that the operation would not be as successful as was anticipated, and with that realization the relationship between the parties began to deteriorate. The Parsonses failed to make their payments regularly, they incurred additional debts without prior consultation, Mr. Parsons ceased working full time at the restaurant and took a part-time job driving a truck, and, at one point, they attempted to sell a truck owned by the business that was pledged as collateral to Dryden under the chattel mortgage securing the $13,476 note. On the other hand, Dryden began to interject himself more and more into the operation of the business. In June, 1973, he closed the four checking accounts, then requiring the joint signatures of Parsons and Dryden, and deposited the funds in four new accounts requiring the signatures of himself and the bookkeeper for the business, Sandra White. The effect of this, obviously, was to eliminate Parsons as an authorized signatory on any of the business bank accounts.

The decline in the fortune of the business, and with it the tolerance of Dryden and Parsons toward the actions and inactions of the other, continued. At one point, Parsons consulted Mr. Richardson, the attorney who had represented Dukes, but Dryden refused to deal with Richardson. Although payments on the first mortgage to the bank were kept current, payments on the two obligations to Dryden, and payments to general creditors, were irregular. At several points, Dryden warned Parsons that if things did not straighten out, he would foreclose, but Parsons stated that he “didn’t pay any attention” to those warnings.

Finally, in March, 1974, Dryden turned the matter over to Whitehead, and directed him to institute legal actions on the notes due him. Pursuant to this direction, Whitehead filed four actions in the Circuit Court for Wicomico County on behalf of the Drydens. They were:

(1) Civil Case No. 8439, filed March 19, 1974, wherein the Drydens obtained a judgment by confession against the Parsonses for $10,626 (plus interest, costs, and “collection charges” of 20%), the amount alleged to be due and owing on the $13,476 note. A writ of fiere facias to seize certain chattels owned by the business was issued and levied.
(2) Civil Case No. 8440, also filed March 19, seeking and obtaining an attachment against a bank account of the Parsonses at the Farmer’s Bank of Willards.
(3) Chancery No. 16,486, filed March 20, foreclosing on the chattel mortgage securing the $13,476 note.
(4) Chancery No. 16, 487, also filed March 20, foreclosing on the second ($20,000) mortgage, and seeking the appointment of a receiver to operate the business until a foreclosure sale was made and ratified. The Affidavit of Indebtedness filed in this proceeding showed a balance due on this mortgage of $19,503.58.

Parsons was duly served with all of the necessary papers pertaining to these actions, and he promptly consulted Mr. Richardson. He reviewed these papers, and his own records (including records prepared by an accountant retained by Parsons) with Mr. Richardson, explaining what he had paid on these various obligations. Richardson contacted Whitehead and offered, on behalf of Parsons, to bring the payments current (although Parsons had not given him any funds with which to carry out that offer), but Whitehead replied that the entire debt had been accelerated. No tender of payment was ever made by or on behalf of Parsons. Richardson stated that he made no effort to stay or defend the foreclosure proceedings because Parsons told him he was going to refinance the venture and pay Dryden what was owed. The key part of this testimony was as follows:

“Q. Did it occur to you to take the position with the Circuit Court for Wicomico County that you questioned whether your clients were actually in default or not? A. Well, Mr. Parsons kept telling me that he wasn’t in default and, of course, the papers showed otherwise.
I never did file any papers to stay the foreclosure proceedings.
Q. You considered doing so? A. I did, however, at one point.
Q. And decided against that step? A. Yes, sir, because Mr. Parsons was trying to refinance the whole mortgages and the notes, and everything else ... that Mr. Dryden had.
Q. But, at least, you considered and weighed the merits of filing some action to enjoin these proceedings, did you not? A. Yes, sir.
Q. And after giving the matter some thought decided not to do so? A. Well, I thought it was going to be paid off, Mr. Goldsborough.
Q. You thought it would be futile? A. No, I thought it was going to be paid off. I thought all of the indebtedness were going to be paid off by the Parsonses.
Q. Did you ever take any steps, on behalf of your clients, to challenge the legitimacy of the foreclosure proceedings after the fact? A. No, sir.
Q. You didn’t raise any objection to the ratification ... of the Receiver’s report? A. No. because it wouldn’t have made any difference. The Parsonses didn’t have any money to pay the deficiency, so I just wasting my time.”

Richardson did file, in No. 8439 (the confessed judgment action), a claim on behalf of Mr. and Mrs. Parsons for their $1,000 statutory exemption from the levy of the writ of fi fa, and a claim with respect to certain of the property levied upon on behalf of one of their children.

There being no defense to the foreclosure actions, a sale-of the mortgaged property was held on April 13, 1974, with Parsons in attendance. Dryden purchased the real estate securing his second mortgage for an amount equal to $21,931 over the balance due on the first mortgage. The chattels were sold to various bidders. As a result, a deficiency of $2,038 was ultimately reported with respect to the second (real estate) mortgage, and a deficiency of $8,928 was reported with respect to the chattel mortgage. No exceptions were filed either to the reports of sale or to the auditors’ reports, and, as a result, all of them were, in due course, ratified by the court. The Parsonses had lost everything; and a year later, in April, 1975, they filed a voluntary petition in bankruptcy.

In January, 1976, Mr. Klein filed this action in the Circuit Court for Worcester County against Whitehead, his law firm, and the Drydens. The Declaration contained four counts; but the basis of them all was the assertion that the business was a partnership, that the defendants stood in a fiduciary relationship with Mr. and Mrs. Parsons (Whitehead and his firm as legal counsel, the Drydens as partners), and that they fraudulently and deliberately conspired to deprive the Parsonses of their property, thus breaching their respective fiduciary obligations. Reciting some of the history set forth above, Klein charged the defendants in Count I with civil conspiracy to cheat and defraud the Parsonses, and, through them the bankruptcy estate, alleging that they conspired to deprive the Parsonses of their property by fraud and deception and by failing to carry out their fiduciary obligations. Count II, based upon the same facts alleged in Count I, charged Whitehead and his firm with professional malpractice. Count III charged all defendants with fraud and deceit, independent of the conspiracy; and Count IV charged them with misappropriation. The only relief sought was damages in the amount of $1,430,000.

Whitehead’s firm and Mrs. Dryden were dismissed preliminarily. The case against Whitehead and Mr. Dryden proceeded to trial; however, at the end of the trial the court concluded that Klein was barred from prosecuting the action by the doctrine of collateral estoppel and directed a verdict in favor of both defendants. The correctness of that action is what is before us.

The proper application of the law often comes down simply to understanding the relationships among several independent principles — recognizing the similarities and the distinctions between them. This is not always an easy thing to do. Concepts that are quite different — that stand on separate bases and that mean different things — often overlap with each other. When this occurs, the terms used to denote these separate concepts sometimes begin to be used interchangeably, as though they meant the same thing, one being but a synonym for the other; and thus confusion comes about as the differences in the concepts themselves become blurred.

So it is. with the doctrines known as res judicata, collateral estoppel, and collateral attack. See, for example, 46 Am.Jur.2d Judgments, § 397. All three of these derive immediately from the larger jurisprudential demand that properly entered judgments be regarded as final, a concept which itself emanates from, and is required by, the societal need for certainty in the law. These three doctrines, though related, are different; they apply in different circumstances and they prevent different things. Unfortunately, the distinctions between and among them are not often clearly understood. In this case, the lower court reached the right result for the wrong reason.

Part of the confusion emanates from the somewhat murky nature of appellant’s causes of action. Though based upon different legal theories, in each case he asserts that the Parsonses (and, through them, he) were injured because of the various proceedings instituted by Whitehead on behalf of, at the behest of, and in complicity with, the Drydens, that these proceedings were instituted and prosecuted to judgment fraudulently, and that the various judgments, orders, and decrees rendered by the court, and the actions taken to execute and implement them, were procured by fraud. He does not attempt in this proceeding to have any of the prior judgments stricken or any of the actions taken pursuant to them set aside. Nor does he ask, directly, to be excused or exempted from the actual operation of those judgments or actions. The relief sought is civil damages arising from the consequences of those judgments and implementing actions, and he therefore, of necessity, gives at least de facto recognition to them. But, on the other hand, he quite clearly asserts, at least twice in his brief, the right “to bring this action and collaterally attack the prior judgments for fraud....”

It is evident — and indeed it was conceded by appellant at oral argument — that every ground alleged in this action to justify his “collateral attack” and to support his claim for damages could have been raised by the Parsonses as a defense in the proceedings from which the earlier judgments arose. His assertions that the obligations were not truly in default, that if in default there were funds available to cure the default, that any default arose through the fraud, deceit, conspiracy, or breach of fiduciary obligations on the part of Whitehead and the Drydens — all these could have been asserted to defend against the two foreclosures and to vacate the judgment entered by confession. It is equally clear, however, that, though these issues might have been raised in the earlier proceedings, in fact they were not; and thus, except to the extent that a resolution of some of them may be said to be implicit from the judgments, decrees, and orders entered by the court, they have not heretofore been adjudicated. The question now is whether they may be raised in this proceeding, and, if not, why not.

We start by considering the relationship between res judicata and collateral estoppel. Both are branches of a doctrine known as estoppel by judgment; res judicata is a direct estoppel, and collateral estoppel is what its name says it is. The distinction between the two was first discussed in depth by the Court of Appeals in LeBrun v. Marcey, 199 Md. 223 (1952) where, quoting from two earlier Supreme Court cases, it noted, at 226:

“The scope of the estoppel of a judgment depends upon whether the question arises in a subsequent action between the same parties upon the same claim or demand upon a different claim or demand. In the former case a judgment upon the merits is an absolute bar to the subsequent action. In the latter the inquiry is whether the point or question to be determined in the later action is the same as that litigated and determined in the original action---In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. . . . But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”

This distinction, based upon whether the second action is the same as or different from the first, was restated, more succinctly, in Sterling v. Local 438, Etc., 207 Md. 132 (1955), cert. denied 350 U. S. 875 (1955). At page 140, the Court held:

“Estoppel by judgment, which is res judicata, may be direct or collateral. If the second suit is between the same parties and is upon the same cause of action, a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated. If, in a second suit between the same parties, even though the cause of action is different, any determination of fact, which was actually litigated in the first case, is conclusive in the second case.”

Unfortunately, in two subsequent cases, the Court used some very broad language to describe res judicata that led it in a third case to overlook the distinction between direct and collateral estoppel, and indeed to suggest that there was no distinction. In Frontier Van Lines v. Md. B. & Tr. Co., 274 Md. 621 (1975), however, the Court made absolutely clear that the distinction was real and would be observed, a holding which was reaffirmed in MPC, Inc. v. Kenny, 279 Md. 29 (1977). In this last case, MPC, Inc., the Court stated, at page 33:

“Suffice it to say that the question whether this is a case of res judicata on the one hand or collateral estoppel on the other is one of critical importance. If, for example, the two causes of action are the same, and res judicata is therefore applicable, the first judgment would bar appellants ... from raising any matters which could have been decided in that case.... If, however, we are not dealing with the same cause of action, collateral estoppel rather than res judicata would apply and only those determinations of fact or issues actually litigated in the first case are conclusive in this action.”

With this background, it is possible to construct a simple comparative checklist for determining which, if either, of the two doctrines is applicable. For either to apply, the second action must be between the same parties or those in privity with them. For direct estoppel to apply, it must be shown, in addition, that the two causes of action are the same. Collateral estoppel does not require that the causes of action be the same, but it applies only with respect to issues of fact actually determined in the earlier proceeding.

Our analysis begins with the question, or requirement, common to both doctrines: are the parties the same? Although technically, of course, they are not, legally, the requirement is satisfied. Appellant contends that, as trustee in bankruptcy, he represents and stands in the shoes of the general creditors of Mr. and Mrs. Parsons, rather than those of the bankrupts themselves. Thus, he says, he is a stranger to the earlier proceedings, and for that reason is neither directly nor collaterally estopped. The law, however, is otherwise.

The status of a trustee in bankruptcy, in this context, emanates from section 70 of the Bankruptcy Act (11 U.S.C. § 110). Subsection (a) thereof vests in him, by operation of law, certain types of property of the bankrupt, among which are “(5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred ...” and “(6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property.” The title to this property which he acquires is that “of the bankrupt as of the date of the filing of the petition initiating” the bankruptcy. Included among the “rights of action” that so pass to the trustee are rights of action based upon fraud, deceit, misrepresentation, and breach of contract. See Moore v. Slonim, 426 F. Supp. 524 (D. Conn., 1977), aff’d 562 F. 2d 38; Hermsmeyer v. A.L.D., Inc., 239 F. Supp. 740 (D. Col., 1964); Constant v. Kulukundis, 125 F. Supp. 305 (S.D.N.Y., 1954). Thus, under section 70(a), the trustee has the same right of action against appellees as the Parsonses had on the date they filed their petition in bankruptcy. To that extent, he stands clearly in privity with the Parsonses, who were, of course, parties to the earlier actions.

The trustee has more pervasive rights, however, under section 70(c). This provides him, in essence, with all of the rights, remedies, and powers with respect to the bankrupt’s property that a secured (lien or judgment) creditor of the bankrupt, real or fictional, had as of the date of the bankruptcy petition. This section, appellant contends, places him in privity with the creditors of the bankrupts, who were strangers to the earlier proceedings, rather than with the bankrupts themselves. The law, however, is again to the contrary. Moore states:

“In general the trustee takes the bankrupt’s estate charged with liabilities and encumbrances that are valid against the bankrupt. To this extent he is in privity with the bankrupt. And if, for example, a court, prior to bankruptcy, rendered a valid in rem decree foreclosing a mortgage as against the debtor or a valid in personam judgment in favor of a creditor, these pre-bankruptcy judgments, binding upon the debtor, are normally conclusive upon his privy, the trustee.”

See also Friedman v. Chesapeake Supply & Equipment Company, 178 F. Supp. 206 (D. Md., 1959); Fox v. McGrath, 152 F. 2d 616 (2nd Cir., 1945),[cert. denied 327 U. S. 806 (1946); Res Judicata and Collateral Estoppel in Bankruptcy, 58 Yale L.J. 1, 4 (1968); Collier on Bankruptcy (14th Ed.), Vol. 3A, § 63.11, pp. 1833-1834.

Thus, whatever special rights the trustee or the Bankruptcy Court may have to set aside fraudulent judgments in the bankruptcy proceeding itself, or to disallow claims in that proceeding based upon such judgments, or, where permitted, to proceed in State court to attack fraudulent judgments, the trustee cannot escape the bar created by direct or collateral estoppel, to the extent that it is otherwise applicable, on the ground that, as to him, the action is not between the same parties. For purposes of this action, he is deemed to be in privity with the Parsonses.

With respect to appellees, the Drydens, of course, were parties to the former proceedings, so an identity exists as to them. Neither Whitehead nor his firm were parties .in the earlier actions, and therefore there is no identity as to them. However, with the relaxation in this requirement of identity of parties, as described in MPC, Inc. v. Kenny (see footnote 11, supra), the lack of identity as to those persons would not serve to bar the application of estoppel by judgment if all other criteria are met. They may assert the bar of direct or collateral estoppel even though they were not parties to the prior proceedings.

Having established the common threshold requirement, we turn to see whether the causes of action are the same, this being a secondary requirement for direct estoppel. The test here is whether the same evidentiary facts would sustain both actions. MPC, Inc. v. Kenny, supra, 279 Md. at 29. The test was stated this way in Freeman on Judgments, 5th Ed., Vol. 2, § 687, quoting in part from Kiniry v. Davis, 200 Pac. 439 (Okl., 1921):

“ ‘The cause of action is the same when the evidence will support both actions; or, rather the judgment in the former action will be a bar, provided the evidence necessary to sustain the judgment for the plaintiff in the present action would have authorized a judgment for him in the former.’ If this identity of evidence is found, it will make no difference that the form of the two actions is not the same. ” (Emphasis supplied.)

Stating the test is a considerably easier task than applying it. Applying the test literally, and in mechanical fashion, it would appear that the causes of action are the same. As noted earlier, appellant conceded the obvious when he agreed that every ground alleged in this action to support his claim for damages could have been raised by the Parsonses as a defense in the earlier cases. More important, the evidence necessary to prove the allegations made here, if offered and accepted (i.e., believed) in the earlier cases, would have justified a judgment favorable to the Parsonses in those actions. If the “identity of evidence” test is to be followed strictly, therefore, the causes of action must be deemed the same, and this proceeding would be barred by direct estoppel.

As mechanical and precise as this analysis, and the conclusion it requires, may be, it nevertheless leaves us with a somewhat strained result. It requires us to hold that an action by a losing party against his successful suitors, for damages arising from the consequences of the defendants’ earlier success, is the same as the original action, notwithstanding that not only the form of the two actions, but as well the circumstances, underlying theories, and reliefs sought by the parties therein are wholly different. If, by virtue of applying the “identity of evidence” test, this situation falls within the realm of the “same cause of action,” it lies at the outer reaches of that realm. Nonetheless, the “identity of evidence” test is the relevant and controlling test, and, based upon it, it would appear that this proceeding is barred by direct estoppel. Fortunately, however, it is not necessary to rest our decision solely upon this ground, as the action is also precluded upon another theory.

Before considering that theory, however, we should discuss the ground relied upon by the lower court — that of collateral estoppel. For that doctrine to apply, we must conclude that the issues raised in this proceeding were actually litigated in the earlier actions (or that the facts necessary to resolve these issues were adjudicated in those actions). This we are unable to do.

We may accept the fact that, in ordering the foreclosure, ratifying the sale, and ratifying the auditors’ reports in the foreclosure proceedings, and in entering judgment and issuing the writ of fi fa and the attachment in the confessed judgment proceeding, the court, implicitly if not directly, concluded that the obligations were valid, due and owing, and in default in the respective amounts alleged. To the extent that these are issues in this current case, they may be said to have been previously litigated. However, as we have stated, this case involves a great deal more than whether the obligations were in default and whether the amounts alleged to be due were correctly stated. At issue here — indeed the central issue here ■— is whether appellees were guilty of fraud, conspiracy, violation of fiduciary obligations, and, with respect to Whitehead, professional malpractice. Bearing upon these issues is whether the enterprise that owned the restaurant was a sole proprietorship or a partnership in which the Drydens were partners. None of these questions were raised or decided in the earlier proceedings; and thus, as defined, and limited, by the Court of Appeals, the doctrine of collateral estoppel does not serve to bar this action. We therefore conclude that the basis upon which the lower court granted the motion for directed verdict was inappropriate.

The theory that is appropriate, and that does serve to preclude this action, is that known as “collateral attack”. A collateral attack is “an attempt to impeach the judgment by matters dehors the record, before a court other than the one in which it was rendered, in an action other than that in which it was rendered; and attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it____” 49 C.J.S. Judgments, § 408. In simple terms, C.J.S. notes (also § 408):

“In other words, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack on the judgment is collateral.”

The law, long ago, developed what Freeman terms a “rule of inhibition” against collateral attacks upon existing judgments. He describes the rule this way:

“Judgments of a legally organized judicial tribunal, proceeding within the scope of its allotted powers, and possessing the requisite jurisdiction over the subject matter of the suit and the parties thereto, whether correct or erroneous, cannot be called in question by the parties or privies in any collateral action or proceeding.”

This bar against the collateral attack upon subsisting judgments is, of course, critical to the effectiveness of the judicial system itself, and it has long been applied by the Maryland courts. See, for example, Ranoul v. Griffie, 3 Md. 54 (1852), and cases cited therein at page 60; also Fisher, Admrx. v. DeMarr, 226 Md. 509 (1961).

The prohibition against collateral attack upon a judgment, as noted earlier in this Opinion, is related to, but yet quite different from, the effect of estoppel by judgment (direct or collateral). Estoppel by judgment comes into play when a person seeks not to attack the existence or validity of a judgment or decree, but rather to question the effect of that judgment or decree upon him. Conceding that the judgment exists and is valid, he asserts that it does not apply to or settle the issues sought to be litigated in the subsequent proceeding. This, as we have explained, the law does not permit because, if the person was a party to the earlier proceeding (or stands in privity with such a party), he is bound by the existing judgment and by the adjudications upon which it is based. The prohibition against collateral attack, on the other hand, prevents a person from challenging the validity of the existing judgment — from attacking the judgment itself rather than merely its scope or effect. Freeman expresses the distinction thusly:

“But while res judicata is concerned only with the effect of final judgments and with their effect assuming them to be valid and enforceable, collateral attack includes judgments and orders of all kinds without regard to their finality and is concerned with the circumstances under which and the extent to which they may be impeached and shown to be invalid.”

See also 46 Am.Jur.2d Judgments, § 399.

Appellant is not attempting here to vitiate the earlier proceedings — to recover the land or the chattels, to annul the deficiency decree or the confessed judgment, to expunge anything from the dockets or records of the Circuit Court for Wicomico County. He seems content to allow those judgments and decrees, and the actions taken in execution of them, to stand. He does not challenge the jurisdiction of the court or the facial regularity of the prior proceedings. His contention is that the earlier proceedings were wrongfully — tortiously, fraudulently — brought; and, for that reason, he seeks civil damages against those whom he accuses as the tortfeasors — the successful suitors in the prior proceedings and their attorneys.

The law is clear, and quite well settled, however, that such an action nevertheless amounts to and is regarded as a collateral attack upon the prior judgments themselves, and is generally prohibited. Perhaps the clearest, and one of the earliest, statements of this application of the rule is contained in Nicholson v. Nicholson, 15 N. E. 223 (Ind., 1888), where, quoting from the then-current edition of Freeman on Judgments (§ 289), the Court held, at page 226:

“ ‘The settled policy of the law forbidding that a matter once adjudicated shall be again drawn in issue while the former adjudication remains in force, does not permit the prosecution of an action for obtaining judgment by false and fraudulent practices, or by false and forced evidence. Neither can a party against whom judgment has been recovered sustain an action against his adversary and the witnesses for damages occasioned by their conspiring together and procuring a judgment by fraud, as long as the judgment remains in force unreversed, because the charges made in the second action are conclusively negatived by the former adjudication.’ ”

The rule announced in Nicholson has been generally followed wherever the question has arisen. See, for example, Shultz v. Shultz, 36 N. E. 126 (Ind., 1894); Epstein v. Mittelman, 160 A. 2d 368 (Del., 1960); Fishman v. Alberts, 72 N.E.2d 513 (Mass., 1947); Risman v. Krupar, 186 N. E. 830 (Ohio, 1933); Hanna v. Allen, 279 P. 1098 (Wash., 1929); Horner v. Schinstock, 101 P. 996 (Kan., 1909); Hall v. Hall, 100 A. 441 (Conn., 1917); Purdy v. Winters' Estate, 156 P. 285 (Or., 1916); Gerini v. Pacific Employers Ins. Co., 80 P. 2d 499 (Cal., 1938); Droppleman v. Horsley, 372 F. 2d 249 (10th Cir., 1967). See also 49 C.J.S. Judgments, § 411; Freeman on Judgments, 5th Ed., Yol. 1, § 314. Although it does not appear that the Maryland Court of Appeals has spoken directly on this subject, it would seem from its decision in Schaub v. O’Ferrall, 116 Md. 131 (1911), that the Court would follow the well-established rule. See Maicobo Investment Corporation v. Von Der Heide, 243 F. Supp. 885, 892 (D. Md., 1965).

Precedent aside, the very rationale for the rule prohibiting collateral attack demands its application to this type of proceeding. We have here a situation in which actions were brought by persons facially entitled to bring them, in a court possessing both jurisdiction and venue, against persons properly served with process. After consulting with counsel the defendants made no effort to defend the actions, but instead allowed matters to proceed in their normal and predictable course. Yet, a year or more later, a person in privity with these same defendants asserts the right to sue the parties who successfully prosecuted the earlier actions upon grounds that, if raised and proved in those earlier actions, would have averted most, if riot all, of the damage allegedly suffered by virtue of those actions. If this be permitted, the law would sanction by indirection what it plainly does not permit to be done directly. Estoppel by judgment and the prohibition against collateral attack would quickly become empty and meaningless terms, and those bedrock concepts in the law that they are designed to protect — indeed whose protection is their sole raison d’etre — would soon crumble.

Accordingly, by both force of logic and weight of authority, we conclude that this action amounts to a collateral attack upon the judgments and decrees entered by the Circuit Court for Wicomico County, and that it is therefore subject to the rule prohibiting such attacks.

Unfortunately, this conclusion alone does not dispose of the case, as appellant seeks to come within an exception to the rule.

Freeman draws a narrow distinction in terms of the operation of the rule depending upon whether the person seeking to attack the existing judgment was a party or a stranger to the proceeding from which it arose. Quoting in part from Safe-Deposit & Trust Co. v. Wright, 105 F. 155 (3rd Cir., 1900), he states, in § 318:

“But whenever a judgment or decree is procured through the fraud of either of the parties, or by the collusion of both, for the purpose of defrauding some third person, he may escape from the injury thus attempted by showing, even in a collateral proceeding, the fraud or collusion by which the judgment or decree was obtained. The fraud, however, must be such as directly affects him. 'The debtor or defendant in a judgment will be allowed, in a proper proceeding, to show fraud, as against himself, practiced by plaintiff on obtaining the judgment; but such fraud against the debtor or defendant, merely, will not avail third parties, such as the holders of junior judgments, for the purpose of affecting the lien of the prior judgment. The fraud that can be taken advantage of by third parties must be such as affects them; that is the entry or obtaining the judgment sought to be impeached must be a fraud upon the interests or rights of such third parties, whether it be a fraud on the defendant or debtor or not.’ ” (Emphasis supplied.)

The answer to appellant’s attempt to come within this narrow exception lies in the very language used to express the exception. As we pointed out earlier, in his most insulated status, a trustee in bankruptcy succeeds to the rights of a secured creditor as of the date of the bankruptcy. We are unable to find in the record any evidence from which the jury could have concluded that the actions of the Drydens, Whitehead, or his law firm in instituting and prosecuting the four actions in Wicomico County amounted to a fraud upon the trustee, or upon those secured creditors (real or fictional) to whose rights he succeeded. As Freeman makes clear, proof that the Parsonses were defrauded would not suffice. See also Fisher, Admrx. v. DeMarr, supra, 226 Md. 509, 519.

Because the rule prohibiting collateral attack is applicable, in addition to the apparent application of direct estoppel, the court’s action in entering judgment for appellees was not in error.

Judgments affirmed; appellant to pay the costs.

      . Parsons testified that he made no effort, personally, to obtain bank financing', but that the real estate agent attempted to arrange that for him. Elton W. Wessells, a Vice-President of the Truckers & Savings Bank, testified that a loan application by Mr. Parsons was made on November 9, 1972, and that it was rejected four days later.

      . Apparently, the time for settlement, set in the contract for November 27, had been extended, and the place switched from Mr. Richardson’s office to that of Mr. Whitehead.

      . Mr. Parsons testified that he believed his obligation was to put up his house, his business, and a 43-acre tract that he owned. He recalled being asked about raising $20,000 but could not remember who asked him or what his response was. He said that he doubted that he could have obtained such a sum.

      . This was in reference to the $11,500 borrowed by Dryden and lent to Parsons. The $13,476 was arrived at by adding, in advance, $1,976 in interest to the $11,500 principal amount of the loan.

      . It would appear that the increase to $75 per week with respect to the note was consistent with what had been anticipated in paragraph 9 of the “Agreement of Sale” prepared by Whitehead.

      . In February, 1974, Dryden fired the bookkeeper, and, at that time, made Mrs. Parsons a co-signatory on two of the accounts. The account from which the payments on the second mortgage were drawn remained under Dryden’s exclusive control.

      . Tait v. Western Maryland Ry. Co., 289 U. S. 620 (1933); Cromwell v. County of Sac., 94 U. S. 351 (1877).

      . Alvey v. Alvey, 225 Md. 386, 390 (1961); Pat Perusse Realty Company v. Lingo, 249 Md. 33, 35 (1968).

      . Missler v. Anne Arundel County, 271 Md. 70, 77 (1974).

      . This statement is completely faithful to the distinction in concepts first set out in Le Brun v. Marcey, supra. It appears to be inconsistent, however, with the nomenclature used, and defined, in Sterling v. Local 438, Etc., supra. There, as noted, the Court treated “res judicata” as equivalent to the broader term “estoppel by judgment”, embracing both direct and collateral estoppel. In MPC, Inc., supra, the Court equated “res judicata” with what the earlier Court considered to be only one branch of res judicata — namely direct estoppel. See, in particular, 279 Md. at 32. We can be true to both cases by using the term “direct estoppel” in lieu of “res judica.ta”

      . See, however, MPC, Inc., supra, at 34-36, for a discussion of the relaxation of that requirement.

      . IB Moore’s Federal Practice, § 0.419, p. 3124.

      . Freeman on Judgments, 5th Ed., Yol. 1, § 305, p. 603.

      . Freeman, op. eit., note 13, Vol. 2, § 630, p. 1328.

      . Freeman apparently uses the term “res judicata” as including both direct and collateral estoppel — i.e., as equivalent to the phrase “estoppel by judgment”.

      . Nicholson involved an action for damages by a woman against her former husband. Her complaint was that he had fraudulently obtained a divorce without providing alimony. The Court noted, at page 225: “It is contended, however, that even though the appellee may be barred from setting aside the judgment because of her inexcusable delay, she may nevertheless recover damages for the injury which she sustained on account of the fraud practiced upon her by the appellant, in obtaining an inequitable and injurious judgment against her. Hence, it is said the complaint is maintainable as a suit for damages. This position is wholly inadmissible.”

      . “The suit comes within the general principle that one cannot, while a judgment or decree continues in force and effect, recover damages alleged to be due to the fraud that led to the rendition of the judgment or the entry of the decree.” 72 N.E.2d at 514.

      . Perhaps the pragmatic aspects requiring the application of the “collateral attack” doctrine also would justify and make more rational the otherwise tenuous application of direct estoppel, discussed supra.


source: Caselaw Access Project

license: Public Domain

text:
    DANIEL JOSEPH LUCADO v. STATE OF MARYLAND
    [No. 1075,
    September Term, 1977.]

      Decided July 13, 1978.

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

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Charles E. Wehland, State’s Attorney for Howard County, and Ronald Spahn, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant and a co-defendant were charged with a first-degree sexual offense, robbery, kidnapping, and a number of related offenses. A jury in the Circuit Court for Howard County convicted appellant of a sexual offense in the first degree, robbery, and battery, for which he was ■ sentenced to four years’ imprisonment.

All of this emanated from an incident occurring in the early morning hours of August 22, 1976, involving one K.D., then 18 years of age. Mr. D testified that, at about 1:00 a.m., he was on “the Block” (for the uninitiated, this is an “adult entertainment” strip of several blocks along East Baltimore Street in Baltimore City), waiting for two friends whom he had arranged to meet. He had expectations of starting a new job promising a substantial increase in income, and wanted to celebrate. While strolling down the street, appellant approached him and engaged him in conversation — “started talking about the Block and whores and buying them, and things like that.” Suddenly, appellant grabbed his arm, forced him into a car, pushed his head down, and threatened him with what Mr. D claimed was a knife. The co-defendant, Charles Linton, was sitting in the driver’s seat, and immediately drove off.

According to Mr. D, they drove into the country and stopped at a church: “[W]hen we stopped, they kept telling me we were going to a whorehouse, and they pointed to a big church, and they said it was a whorehouse, that’s where I was going to die that night.” D fled from the car, but was captured and forced to return, whereupon they drove to another spot. At this point, appellant forced D to remove his pants and to perform fellatio, at the conclusion of which appellant and Linton changed places, and D was forced to perform the same act on Linton. During this ordeal, D was periodically struck by the assailants, and his wallet, containing over $150, and a watch were taken. Appellant, in addition, attempted to have anal intercourse with D. When all of this had ended, D was forced from the car and nearly killed when appellant swung at him with a tire iron. Linton persuaded appellant to desist in this effort, at which point, D was placed back in the car, driven around for a while and finally let go. As the assailants drove off, D noticed part of the license number, which he gave to the police.

During cross-examination of D, both defense counsel intimated, through their questioning, that D was a homosexual, that he initiated the sexual activity, and that he enjoyed what happened to him. D unequivocally denied such suggestions. That this would be the principal line of defense became clear when appellant testified on his own behalf. He admitted being on “the Block” with Linton on the evening in question, but claimed that D initiated the conversation, voluntarily got into the car, and initiated the sexual contact — first with Linton and then with appellant. All allegations of force, coercion, and brutality were denied, as were the explicit acts testified to by D. Appellant claimed that D had grabbed him — “started messing around with me, and I pushed him away.” The clear, unmistakable import of appellant’s testimony was that D was homosexual and had initiated everything that occurred in the car. Linton, who also testified, gave essentially the same story; he also charged D with initiating all of the episodes of fellatio and attempted anal intercourse.

At the close of the case for the defense, the State advised the court (and defense counsel) that it had one rebuttal witness — Mr. D’s uncle, who would testify as to “the non-homosexuality of Mr. [D].” The legal theory for admitting such testimony, according to the State, was that, “where consent is made a part of the defense ... the State has the right, in rebuttal, to prove that he is not, there was not consent, that this was not the kind of person that consented. The question of homosexuality — they’ve accused him of being a homosexual.” Appellant’s counsel objected on the ground that “the uncle is not competent to prove that homosexuality or lack thereof...”. The objection was overruled, and the State then produced Police Sergeant Luberecki, D’s uncle. Sergeant Luberecki testified, without further objection, that he had known D all of his (D’s) life, that he had no reputation for being a homosexual, that Luberecki knew of no instances of homosexual activity on D’s part, and that D had never béfore been accused of being a homosexual. Both defense counsel briefly cross-examined Luberecki. No motion to strike any of the testimony was made.

In this appeal, appellant raises one question: Did the trial judge err in permitting testimony as to the victim’s alleged lack of reputation as a homosexual? He contends, of course, that there was error, and grounds his assertion on Md. Annot. Code art. 27, § 461 A, the pertinent part of which provides that “[elvidence relating to a victim’s reputation for chastity and opinion evidence relating to a victim’s chastity are not admissible in any prosecution for commission of rape or sexual offense in the first or second degree.” The thrust of appellant’s argument, of course, is that Sgt. Luberecki’s testimony to the effect that D was not homosexual and had no reputation for being so amounted to evidence relating to D’s “chastity”, and was thus precluded under the statute.

Unfortunately, before considering the question of statutory interpretation — whether “evidence relating to a victim’s chastity” includes evidence relating to a victim's non-homosexuality — we must address the question of statutory application. This is made necessary because the particular language in the statute upon which appellant must, of necessity, rely was not the law at the time of his trial. It became effective later.

The legislative history of § 461A brings both questions — application and interpretation — more clearly into focus. This section was originally enacted by Laws of Md., 1976, ch. 574 (House Bill 715), one of two bills emanating from a Special Legislative Committee on Rape and Related Offenses that were passed by the General Assembly in 1976. The other bill (Senate Bill 358) was enacted as Chapter 573.

As originally introduced, House Bill 715 made evidence as to a victim’s reputation for chastity inadmissible in “any prosecution for commission of a sexual offense.” The use of the phrase “sexual offense” had clear reference to the provisions of the companion bill — Senate Bill 358 — which, in its first reader form, repealed the common law crime of rape and the statutory reference to it in art. 27, § 461, and substituted instead four degrees of “sexual offense”. Had the Senate Bill been enacted in its introductory form, there would have been no crime of rape — only the four degrees of “sexual offense”.

During the legislative process, substantial amendments were made to both bills by the House of Delegates. The main bill — Senate Bill 358 — was amended to put back into the bill (and therefore the law) the crime of rape. What are now §§ 462 and 463 were added to the bill, defining and making criminal first and second degree rape, and “vaginal intercourse” was excluded from the definition of “sexual act”, which was the basis for the newly created “sexual offenses”. The clear and unmistakable intent of these amendments was to reinstate rape, in its two degrees, as a crime separate and apart from the new sexual offenses. Corresponding amendments were made to House Bill 715. Whereas, as noted, the bill originally excluded evidence pertaining to chastity in prosecutions for a “sexual offense”, as amended, the words “sexual offense” were stricken, and the word “rape” substituted.

When the bill passed over to the Senate, an attempt was made to restore it nearly to its original form. Amendments were added that would have made the bill, and thus the exclusionary rule, applicable to both rape and sexual offenses; however, a day later, the bill was reconsidered and all of those Senate amendments were withdrawn. The bill then passed, and was signed into law, with the limiting amendments placed on it by the House of Delegates.

As enacted, a deliberate change had been made in the bill. Fully aware of the amendments made to the companion Senate Bill 358 making (or keeping) criminal both rape and the other sexual offenses, the General Assembly explicitly limited the scope of the House Bill’s exclusionary rule to prosecutions for rape. Both bills took effect July 1, 1976.

In its 1977 session, the General Assembly enacted Laws of Md., 1977, ch. 294, which expressly made § 461A applicable to prosecutions for sexual offenses in the first or second degree. However, that bill did not take effect until July 1, 1977. Appellant was tried in May, 1977, when only the provisions of the 1976 enactment were in effect. Appellant having been charged with a sexual offense, and not with rape, it is apparent that, even if § 461A were to be construed in the manner desired by appellant, it would not have precluded the admission of Sgt. Luberecki’s testimony at the time it was offered; and, had appellant objected to the testimony on that basis, the objection would have been properly overruled.

Since the 1977 amendment is in effect now, however, the question is whether we must apply it retrospectively. The Court of Appeals has told us that we must do exactly that. In Janda v. General Motors, 237 Md. 161 (1964), the Court said, at page 169:

“A statute which affects or controls a matter still in litigation when it became law will be applied by the court reviewing the case at the time the statute takes effect although it was not yet law when the decision appealed from was rendered, even if matters of claims of substance (not constitutionally protected), as distinguished from matters procedural or those affecting the remedy are involved, unless the Legislature intended the contrary.”

The rationale behind this rule of retrospective application is that, provided no “vested right” or contrary legislative intent is disturbed, it would be anomalous for a court to apply obsolete standards and issue a mandate that is inconsistent with current law. See Ziffrin v. United States, 318 U. S. 73 (1943); Janda, supra. The Court of Appeals has, on several occasions, applied this rule with respect to post-trial statutory changes that govern or affect the law of evidence — statutes making admissible that which was previously inadmissible or viee-versa. See, for example, State v. Norwood, 12 Md. 195 (1858); Cunningham v. Dwyer, 23 Md. 219 (1865); Reynolds v. Furlong, 10 Md. 318 (1856); Atwell v. Grant, 11 Md. 101 (1857). See also, Annot., Appeal Change of Law Since Decision, 111 ALR 1317, 1334 (1937). This application of the rule presupposes, of course, the generally accepted principle that vested rights do not accrue in the rules of evidence.

There being no indication in ch. 294 itself, or in its legislative history, that the General Assembly intended it to be applied prospectively only, we are constrained by the force and rationale of Janda to give recognition to the law as it presently exists, and thus to consider appellant’s claim in the light of the 1977 enactment.

We therefore will consider the question of whether § 461A, as it presently exists, renders Sgt. Luberecki’s testimony inadmissible. Subsection (a) is the relevant part of the statute; it provides:

“Evidence relating to á victim’s reputation for chastity and opinion evidence relating to a victim’s chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree. Evidence of specific instances of the victim’s prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is:
(1) Evidence of the victim’s past sexual conduct with the defendant; or
(2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or
(3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or
(4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim’s prior sexual conduct in issue.”

This part of the statute does two things. The first sentence flatly and unconditionally excludes opinion evidence relating to a victim’s “chastity” and evidence relating to the victim’s reputation for “chastity.” There are no exceptions to this prohibition, which appears to apply whether the evidence is offered by the prosecution or the defense. The balance of the subsection deals with something quite different — specific instances of the victim’s “prior sexual conduct” — evidence of which is admissible under certain conditions. We are concerned here with the first sentence. Sgt. Luberecki’s testimony did not relate to or purport to describe specific instances of D’s prior sexual conduct, but pertained solely to his reputation. The question, however, is whether it related to D’s reputation for “chastity”. To answer that question, we are put to the task of defining the word “chastity”, or at least determining what the General Assembly of Maryland meant when it used that term in § 461A.

The rule which we apply in making that determination was stated thusly in Maryland Medical Service, Inc. v. Carver, 238 Md. 466 (1965):

“In construing the words used in the statute, this Court will consider them in their natural and ordinary signification; if, however, the words used in the statute are of doubtful meaning, this Court in determining the legislative intent, will consider not only their usual and literal meaning, but their meaning and effect considered in the light of the objectives and purposes of the enactment and the consequences resulting from one meaning rather than another meaning, with the real legislative intent prevailing over the intent indicated by the literal meaning of the words used.”

In pursuing our quest for the true meaning of “chastity”, we start with Webster, as good an arbiter as any of the “natural and ordinary signification” of words. Webster’s New Twentieth Century Dictionary (Unabridged) gives five definitions of the word; namely:

“1. abstinence from all unlawful sexual activity: said especially of women.
2. freedom from obscenity, as in language or conversation; decency; modesty.
3. simple refinement of design; lack of ornateness or excess.
4. purity; unadulterated state; as, the chastity of the gospel. [Rare.]
5. celibacy or virginity; sexual continence.”

Given these five somewhat varying definitions, it does not appear that there is a single “natural and ordinary signification” of the word, at least not one from which the issue before us may be easily resolved. In terms of whether “chastity” encompasses or refers to the absence of homosexual tendencies, activities, or experiences, the word is of doubtful meaning; and we therefore must attempt to ferret out the legislative intent.

The words “chaste” and “chastity”, and the concepts which they purport to describe, have had a more limited meaning and application in the legal or societal setting than the full range of definitions given by Webster would require. They have, instead, been considered and applied almost exclusively in the context of the first and the fifth of these definitions. In the law, these terms have been traditionally used with particular reference to women; indeed, they have been associated with nearly every vestige of the different, and generally unequal, treatment of men and women by the law.

In dealing with these terms, the courts, with near uniformity, have viewed them in the context of sexual purity. With respect to unmarried women, chastity has been held to require virginity — the complete absence of any history of sexual intercourse with men. Some courts have even suggested, by extension of that requirement, that divorcees (and presumably widows as well) could not be chaste.

The curious paradox of this demanding and clearly chauvinistic view of women and their sexual purity was that, at the same time that the law sought to exalt and protect that status from inappropriate male transgression, it swept away all pretense of privacy in this intimate matter by requiring women, in an open court of law, either to answer directly for or to endure the ordeal of collateral challenges to their morality and prior sexual conduct. The height of this degradation was reached in prosecutions for rape.

Prior to the enactment of § 461A, the law of Maryland in this regard was as stated in Humphreys v. State, 227 Md. 115, 121 (1961):

“It is well established that there is no requirement that the victim of the crime of rape be chaste, so far as the common law is concerned____However, the general character of the prosecutrix as to chastity or unchastity is admissible in the majority of common law jurisdictions, including Maryland, because of its probative value in determining whether the act was committed with or without her consent, a necessary element in the common law crime of rape.”

Although evidence as to specific acts of sexual intercourse was'held to be inadmissible, and the Court of Appeals, and this Court, when given the opportunity, did attempt to limit somewhat the kinds of questions that might be asked, nonetheless, a rape victim, in addition to all of the other indignities heaped upon her in the investigatory process, was subjected, in court, to having the trial center as often on her reputation for chastity as on the question of whether the defendant committed the acts alleged. In line with the concept expressed in Humphreys v. State, supra, it has been held (75 C.J.S. Rape, § 63):

“In order to show the probability of consent, the general reputation of prosecutrix for immorality and unchastity and her general immoral habits and character may be shown, as by showing that she was a common prostitute, generally promiscuous, or drunken and dissipated.... Evidence that prosecutrix bore the general reputation of being unchaste and had habitually engaged in acts of sexual intercourse with others is admissible on behalf of accused to support his contention that her physical condition was not due to rape but to a drunken fight in which she participated.”

This, then, was the background of House Bill 715 (Laws of Md., 1976, ch. 574). Notwithstanding the inadmissibility of evidence as to specific acts of sexual conduct (or misconduct) with men other than the accused, it was, to a point, open season on the victim’s general reputation in the community for chastity and virtue. The legislative history of House Bill 715, other than that recorded above, is scant. There was, however, an identical bill introduced in the Senate (Senate Bill 399). That bill was heard before the Senate Judicial Proceedings Committee in conjunction with Senate Bill 358, which, as noted, sought (at that stage of the legislative process) to repeal the crime of rape and substitute four degrees of sexual offense, of which men and women could be both perpetrator and victim. The Report of the Judicial Proceedings Committee makes clear, however, that, despite the reference in Senate Bill 399 to prosecutions for sexual offenses, the concern of the sponsor, those supporting the bill, and the committee itself was with the victims of rape.

Such emphasis was neither inadvertent nor misplaced, considering the purpose of the bill and the nature of the problem it was designed to correct. Notwithstanding that in its then-current form, the bill would have applied to all sexual offenses (and thus would have had a broader application than the 1977 amendment), its thrust and intention was to correct a more limited “evil”. As noted, it was not men whose chastity was exposed to public inquiry, but women; and it was neither their general mores nor their sexual preferences that were examined, but rather their reputation for being willing and amenable to engage in sexual intercourse with men.

Although proof that a “prosecutrix” had previously been convicted of a perverted sex practice may have been admissible as bearing on her general credibility, evidence offered by a male defendant in a rape case to the effect that the victim had a reputation for being a lesbian — that she preferred women to men as sexual partners — would have been entirely irrelevant to the question of consent and therefore inadmissible. Consequently, this type of evidence was rarely, if ever, offered, and was not at all the problem to which this legislation was directed. Indeed, we are aware of no instance in which an appellate court of this State has concluded that a rape victim may be subjected to such an inquiry; nor are we aware of any evidence that those who sponsored and supported reform measures, such as the legislation before us, were concerned with that type of inquiry. The use of the word (and concept of) “chastity” in the debates and literature pertaining to these reform measures has nearly always been in the context of the prior heterosexual activity of a female victim of a male assault. That was the “evil” to be remedied.

The reform effort in Maryland was not unique. In enacting ch. 574 (1976) and ch. 294 (1977), the General Assembly was following a nationwide trend, a trend of which it was well aware. Significantly, similar proposals in both the Congress and in other State legislatures, some of which, at the time, had already been enacted into law, discarded the word “chastity”, and fashioned the exclusionary rule around evidence pertaining to the “past sexual behavior” or the “prior sexual conduct” of the victim. Indeed, this appears to be the nearly universal approach taken in statutes analogous to § 461A.

The Maryland General Assembly, even when extending the scope of § 461A to sex offenses other than rape, chose not to paint with such a broad brush, but continued instead to restrict the application of the exclusionary rule to evidence relating to the victim’s “chastity”, in the context, we must presume, of its then-current use and meaning. The deliberateness of this approach is particularly evident from its use of the terms “prior sexual conduct” and “past sexual conduct” in the very same section, but only in the context of the limited exclusion of evidence as to “specific instances”. As § 461A (a) is worded, it may be the case (although we need not and do not decide the point here) that evidence, if it existed, of specific instances of homosexual activity on the part of Mr. D would have been admissible under the conditions laid down in that subsection; but that result would not obtain through a construction of the word “chastity”.

In Dept. of Tide. Fisheries v. Sollers, 201 Md. 603 (1953), we are told that, where the language of a statute is fairly susceptible of more than one construction, “the Court may seek the legislative intention by considering the facts of contemporary history, the prior state of the law, and the particular evil, abuse or defect which the statute was designed to correct and the remedy which was intended.” To the extent that there is an ambiguity in the meaning of the word “chastity”, it is clear that the General Assembly intended it to refer (and be limited) to heterosexual contact only. Had it desired otherwise, it could and would have so provided, as other legislatures have done.

Accordingly, we do not believe that Sgt. Luberecki’s testimony related to his nephew’s “chastity”, and for that reason it would not have been inadmissible under § 461A as it presently reads.

Judgments affirmed; appellant to pay the costs.

      . The sentence was four years for the sexual offense, four years for robbery, and one year for battery, all concurrent.

      . See 1976 Senate Journal, pp. 3074, 3075, 3202, 3203.

      . In fact, ch. 294 was not signed by the Governor until the day after appellant’s trial had concluded.

      . See Sutherland, Statutory Construction, § 41.06; Thompson v. Missouri, 171 U. S. 380, 385 (1898); United Securities Corporation v. Bruton, 213 A. 2d 892 (D.C., 1965).

      .' We cannot evade this responsibility by interposing Maryland Rule 1085 upon the premise that the point was not raised or decided below. Obviously, counsel cannot be held to the task of objecting upon a ground that, at the time, did not exist. Rule 1085, in this context, is, of necessity, subservient to and superseded by the procedure compelled by Janda.

      . See also Truitt v. Board of Public Works, 243 Md. 375, 394 (1966); Fairchild Industries v. Maritime Air Service, Ltd., 274 Md. 181 (1975).

      . Numerous examples of this abound. Most of the cases in which courts have been called upon to interpret the words “chaste” or “chastity” have arisen from statutes reflecting a rather obvious societal judgment that a woman’s sexual purity was more to be expected, and therefore more to be protected, than that of a man. They have been primarily of three types: statutes making criminal the seduction of an unmarried woman “of previous chaste character” upon promise of marriage, those prohibiting the abduction of such women for the purpose of unlawful sexual intercourse, and those making it tortious to impute unchastity to a woman. Given the restricted scope of these statutes, it is not surprising that, in a judicial setting, the words “chaste” and “chastity” were nearly always associated only with the female of the species. That this is not merely an anachronism from the distant past is evidenced by the fact that Maryland still retains its “slander of chastity” law (Courts article, § 3-501) declaring words spoken falsely and maliciously "“touching the character or reputation for chastity of any woman” to be slander. When that statute was recodified in 1973, the Code Revisor suggested, in light of the State “Equal Rights Amendment” (Md. Deck of Rights, art. 46), that the statute be extended to protect men as well, “who are not protected in cases where their chastity is subjected to slanderous words”; however, despite persistent attempts either to repeal or extend the statute, the General Assembly has decided that the law should continue to .protect only the chastity of women. Speaking of these types of “slander of chastity” statutes, Prosser states that most courts “have held that an oral imputation of unchastity to a woman is actionable without proof of damage without regard to whether it charges a crime. Such a rule never has been applied to a man since the damage to his reputation is assumed not to be as great.” Law of Torts, 4th Ed., § 112, p. 760. See also Sauerhoff v. Hearst Corporation, 388 F. Supp. 117 (D. Md., 1974), vacated on other grounds, 538 F. 2d 588 (4th Cir., 1976); State v. Sibley, 31 S. W. 1033 (Mo., 1895).

      . See, for example, State v. Enloe, 95 So. 650 (La., 1923), where, in dealing with an “abduction” statute, the court approved this jury instruction: “The words ‘previous chaste character’ mean actual personal virtue; and, in order to convict, it must be established... that the prosecutrix was a woman of virtue and had never hadprevious sexual intercourse with a man, "(Emphasis supplied.) See also Norman v. State, 230 S. W. 991 (Tex., 1921): “A chaste woman, within the meaning of the law as applied to an unmarried woman, signifies one who has had no carnal knowledge of men”; conversely, “An ‘unchaste’, unmarried woman is one who has had carnal knowledge of men ..Of similar effect, see Marshall v. Territory, 101 Pac. 139, 143 (Okl., 1909)’ "A chaste female" is one that has never had sexual intercourse — who yet retains her virginity.”; Woodruff v. State, 101 N. W. 1114 (Neb., 1904); State v. Dacke, 109 Pac. 1050 (Wash., 1910). Also, People v. Kehoe, 55 Pac. 911 (Cal., 1898): “Chastity, as here employed, means in the case of an unmarried female, simpiy that she is virgo intacta. . . .” Note also Hoff v. Hoff, 162 Md. 248 (1932), considering unchastitv in the context of the “illicit carnal intercourse with another man.”

      . See, for example, Jennings v. Commonwealth, 63 S. E. 1080 (Va., 1909), in which the Virginia court, dealing with a “seduction” statute, said of divorced women: “They have known man, and, possessed of the knowledge which such intercourse imparts, if chaste, are immune from the seducer’s wiles.” Compare, for a more “enlightened” view, People v. Weinstock, 140 N.Y.S. 453 (1912): “There can be no doubt that a lawfully married woman, a widow, or a woman who obtains a divorce, may be chaste and actually virtuous. Lawful matrimony or lawful wedlock cannot be said to deprive a good and pure woman of chastity and virtue.”

      . See Shartzer v. State, 63 Md. 149 (1885); Giles v. State, 229 Md. 370 (1962) , app. dismissed, 372 U. S. 767 (1963); Johnson, Jr. v. State, 232 Md. 199 (1963); England and Edwards v. State, 21 Md. App. 412 (1974).

      . Both bills emanated from the Special Committee on Rape and Related Offenses, and, in their first reader form, were identical. Senate Bill 399 was introduced by Senator Hoyer, House Bill 715 by Delegate Sheehan, both of whom were members of that Special Committee. Both bills were amended in exactly the same way and were passed in identical fashion. Faced with duplicate bills, the Governor signed House Bill 715 and vetoed Senate Bill 399 at the request of Senator Hoyer.

      . The testimony offered in support of the bill, as summarized in the Committee Report, is replete with references to rape and the victims of rape, and, in contrast, omits any references to the victims of any other forcible sexual offenses. The Report concludes:
      “In its deliberations, the Committee took cognizance of the broad based support of the concept of limiting evidence relating to prior sexual conduct of a rape victim and that such a limitation would probably result in an increase in the percentage of rapes reported; that a statutory response to the inherent sensitivities of a traumatized victim could accommodate the constitutionally mandated rights and protections properly afforded a defendant in our criminal justice system; and that the weighing of inflammatory nature versus the probative value of evidence of specific instances of prior sexual conduct precludes possible admission of highly prejudicial evidence of limited probative value. Presently, it is the practice of some courts to admit evidence of any probative value irrespective of its inflammatory nature.” (Emphasis supplied.)

      . See Privacy of Rape Victims, Hearing Before House of Representatives Committee on the Judiciary, Subcommittee on Criminal Justice, July 29,1976; Report of the National Commission on the Observance of International Women’s Year (1976), pp. 261-266; Sexual Assault: Confronting Rape in America, Gager and Schurr, pp. 151-157; Reform Rape Legislation: A New Standard of Sexual Responsibility, 49 Colorado L.R. 185 (1978); Kentucky Rape Statute, 4 N.Ky.L.R. 345 (1977).

      . This is reflected, in part, in the minutes of the Special Committee on Rape and Related Offenses for the meeting of July 7, 1975, and by a document prepared by the Governor’s Commission to Study Implementation of the Equal Rights Amendment, dated July, 1975, and entitled “Rape Law Comparison for Selected States.”

      . See, for example, HR 14666, HR 12684, HR 12685, HR 12968, HR 13481, HR 15739, HR 15740, all being proposals to amend the Federal Rules of Evidence introduced in the 94th Congress; HR 408, S 1422, S 1111, similar bills introduced in the 95th Congress; Cal. Penal Code, §§ 1127d, 1127e; Cal. Evid. Code, § 1103; Mich. Stat. Annot., § 28.788(10); N.Y. Crim. Proc. Law, § 60.42; Purdon’s Pa. Stat. Annot., Title 18, § 3104.

      . As noted earlier (footnote 7), the General Assembly had been entreated on several occasions, including in the 1976 session that produced i 461A, either to repeal or to extend to both sexes the tort of “slander of chastity”. See SB 207, HB 886 (1976 session). The use and meaning of that term was therefore not unknown to the lawmakers.

      . See Report of the Senate Judicial Proceedings Committee on SB 399 (1976). Under the hearing “Arguments in Favor of Committee Action”, the Report states:
      “Under present Maryland law, specific instances of the victim’s past sexual conduct are inadmissible unless the conduct was with the defendant. However, evidence of a victim’s reputation for chastity is admissible if consent is a defense. Thusly, the substantive changes incorporated in the bill are the outright ban on evidence of reputation for chastity and the in chambers determination as to whether evidence of specific instances of prior sexual conduct is of such probative value as to outweigh its inflammatory or prejudicial nature. The evidence of specific acts must then also fall within one of the four enumerated categories which are presently part of the case law of this State.” (Emphasis supplied.)


author: Thompson, J.,

text:
    STATE OF MARYLAND v. JAMES BOONE
    [No. 1078,
    September Term, 1977.]

      Decided July 13, 1978.

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

      W. Timothy Finan, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County,
      and Richard P. Arnold, Assistant State's Attorney for Prince George's County, on the brief, for appellant.
    No brief or appearance for appellee.
   Thompson, J.,

delivered the opinion of the Court.

In this appeal we are asked to determine whether a writ of habeas corpus ad prosequendum constitutes a detainer within the meaning of the Interstate Agreement on Detainers, Md. Code, Art. 27, § 616A et seq. (1976 Repl. Vol., 1977 Supp.). We hold that it does not.

Appellee, James Boone, was indicted on September 15, 1976, in the Circuit Court for Prince George’s County for armed robbery. He was subsequently incarcerated in the District of Columbia on February 25, 1977, on charges stemming from a felony committed in that jurisdiction. On March 29, 1977, the Circuit Court issued a writ of habeas corpus ad prosequendum directing the superintendent of the District of Columbia Jail to release Boone into the custody of the United States Marshal and deliver him to the court on April 14, 1977 for arraignment. Boone was delivered to the court on April 14 and was ultimately arraigned on April 15, 1977. After his arraignment he was returned to the District of Columbia.

Appellee moved to dismiss the indictment with prejudice on May 11,1977, contending that by issuing the writ of habeas corpus ad prosequendum the State had filed a detainer thereby invoking the Interstate Agreement on Detainers. Based on this premise appellee maintained that by returning him to the District of Columbia the State violated Article IY of the Agreement which provides in part:

“If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” Md. Code, Art. 27 § 616E (e) (1976 Repl. Vol.)

During the hearing on the motion both parties made a number of factual claims but neither party introduced any evidence. Instead the hearing consisted solely of the argument of counsel, supplemented by the court file. Appellee repeated his claim that § 616E (e) required dismissal of the indictment but the State maintained the Interstate Agreement on Detainers was inapplicable because: (1) there was no evidence to show appellee was serving a “term of imprisonment” in the District of Columbia at the time the writ was issued, and (2) appellee was never released from federal custody. Judge Ernest A. Loveless, Jr. agreed with the State’s latter argument and denied the motion to dismiss the indictment. In response to Judge Loveless’s ruling appellee reserved the point for consideration by the court en banc, and a hearing was conducted before a three judge panel. See Md. Rule 510 b. An opinion and order were filed subsequently granting the motion to dismiss and the State appealed. The Court, recognizing that in order for the Interstate Agreement on Detainers to come into play a detainer must be filed with the jurisdiction having custody of the prisoner, ruled that the writ of habeas corpus ad prosequendum constituted a detainer and, therefore, the provisions of the Agreement applied. It relied on United States v. Mauro, 544 F. 2d 588 (2nd Cir. 1976).

The Agreement itself does not define the word “detainer” but it is generally recognized that the term refers to a notice directed to prison authorities informing them that charges are pending in another jurisdiction against an inmate. Prior to the enactment of the Agreement detainers were indiscriminately filed and often adversely affected the prisoner by providing a ground for denying parole, visiting privileges, and participation in various special programs. In addition there were often long delays before trial began in the second jurisdiction which were prejudicial to the prisoner’s defense.

Unlike detainers a writ of habeas corpus ad prosequendum is an order for the immediate release of a prisoner and is discharged when the prisoner is released into the court’s custody. Consequently, the writ has never been associated with the problems surrounding detainers. United States v. Kenaan, 557 F. 2d 912, 916 (1st Cir. 1977), cert. denied, 46 U.S. L.Week 3749 (No. 77-206 June 5, 1978); Huff v. United States, 437 F. Supp. 564, 568 (W.D. Mo. 1977).

Despite these differences there has been a great deal of controversy, primarily in the federal courts, over whether an ad prosequendum writ constitutes a detainer. Compare United States v. Kenaan, supra; United States v. Scallion, 548 F. 2d 1168 (5th Cir. 1977), cert. denied, 46 U.S. L.Week 3753 (No. 76-6559 June 5, 1978); Ridgeway v. United States, 558 F. 2d 357 (6th Cir. 1977), cert. denied, 46 U.S. L.Week 3753 (No. 77-5252 June 5, 1978); and United States v. Harris, 566 F. 2d 610, 613-614 (8th Cir. 1977) with United States v. Mauro, supra, and United States v. Sorrell, 562 F. 2d 227 (3rd Cir. 1977) , cert. denied, 46 U.S. L.Week 3751 (No. 77-593 June 5, 1978) . The Supreme Court, subsequent to the ruling below, resolved this controversy when it reversed the second circuit’s decision in Mauro and held that an ad prosequendum writ is not a detainer. United States v. Mauro, 436 U. S. 340, 98 S. Ct. 1834, 1845-1847, 56 L.Ed.2d 329 (1978). In its decision the Court noted that there was a fundamental difference between an ad prosequendum writ and a detainer by stating:

“The role and functioning of the ad prosequendum writ are rooted in history, and they bear little resemblance to the typical, detainer which activates the provisions of the Agreement.
“Unlike a writ of habeas corpus ad prosequendum issued by a federal district court, a detainer may be lodged against a prisoner on the initiative of a prosecutor or law enforcement officer. Rather than requiring the immediate presence of the prisoner, a detainer merely puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison. Further action must be taken by the receiving State in order to obtain the prisoner. Before it was made clear that a prosecuting authority is not relieved of its obligation to provide a defendant a speedy trial just because he is in custody elsewhere, see Smith v. Hooey, 393 U. S. 374, 89 S. Ct. 575, 21 L.Ed.2d 607 (1969), detainers were allowed to remain lodged against prisoners for lengthy periods of time, quite often for the duration of a prisoner’s sentence.
“Because writs of habeas corpus ad prosequendum issued by a federal court pursuant to the express authority of a federal statute are immediately executed, enactment of the Agreement was not necessary to achieve their expeditious disposition. Furthermore, as noted above, the issuance of adprosequendum writs by federal courts has a long history, dating back to the First Judiciary Act. We can therefore assume that Congress was well aware of the use of such writs by the Federal Government to obtain state prisoners and that when it used the word 'detainer,’ it meant something quite different than a writ of habeas corpus ad prosequendum. ” (footnote omitted). Id. 98 S. Ct. at 1846, 1847.

Although the Supreme Court is not the final arbitrator of state statutes, it is the final arbitrator of interstate compacts. Petty v. Tennessee-Missouri Bridge Commission, 359 U. S. 275, 278, 79 S. Ct. 785, 788, 3 L.Ed.2d 804 (1959); State, ex rel. Dyer v. Sims, 341 U. S. 22, 28, 71 S. Ct. 557, 560, 95 L. Ed. 713 (1951). In addition, that portion of the Federal enactment of the Agreement that was construed by the Court is all but identical to the Maryland provision. Consequéntly, we hold the writ issued in the instant case was not a detainer. Absent a showing a detainer had been filed in the District of Columbia, the Agreement was inapplicable. Thus, the court erred when it dismissed the indictment.

There is an additional reason the lower court erred. Assuming a detainer had been filed, appellee was not entitled to the benefit of the protections contained in § 616E (e) unless he had entered upon a term of imprisonment in a penal or correctional institution of a party state. See Davidson v. State, 18 Md. App. 61, 67, 305 A. 2d 474, 479, cert. denied, 269 Md. 757 (1973). Accord, United States v. Roberts, 548 F. 2d 665, 670-671 (6th Cir.), cert. denied, 431 U. S. 931, 97 S. Ct. 2636, 53 L.Ed.2d 246 (1977); United States v. Harris, supra at 612-613. During the hearings on the motion there were no stipulations, official documents, or testimony indicating that appellee was incarcerated in the District of Golumbia under a term of imprisonment at the time the writ was issued. The only basis for the Circuit Court’s action in this regard came from material contained in the argument of counsel. Argument of counsel is not evidence and cannot be used to support the court’s decision. Thus, the lack of any evidence to support the court’s decision would have been a sufficient reason for reversal.

Order reversed.

Case remanded for trial.

Costs to be paid by appellee.

      . The Interstate Agreement on Detainers is an interstate compact which was approved by Congress. See 4 U.S.C. 112(a) (1970). The compact has now been adopted by all states except Alabama, Alaska, and Mississippi. The United States became a party to the agreement on behalf of itself and the District of Columbia in 1970. See 18 U.S.C. App., pp. 1395-1398 (1976).

      . During the proceedings below appellee was represented by an assigned public defender hut the public defender appointed to represent him in this appeal was permitted to withdraw her appearance under Md. Rule 125 because appellee refused to cooperate.

      . Although the Circuit Court lacked the power to order the federal authorities to release appellee, see Ponzi v. Fessenden, 258 U. S. 254, 261-262, 42 S. Ct. 309, 66 L. Ed. 607 (1922); Special Prosecutor of New York v. United States Attorney for the Southern District of New York, 375 F. Supp. 797, 802-804 (S.D.N.Y. 1974), the Supervisor of the District of Columbia Jail honored the writ as a matter of comity.

      . It should be noted that under § 616D the prisoner must make a request for final disposition of his ease before the Interstate Agreement on Detainers is invoked. A request by the prisoner is not required under § 616E.

      . The Court did-rule, however, that once a detainer had been filed the ad prosequendum writ constituted a request for temporary custody within the meaning of Article IV. 98 S. Ct. at 1847-1849.

      . Although the writ issued by the Circuit Court for Prince George’s County did not have the efficacy of a writ issued by a federal court, (see note 3) it is apparent from what we have quoted that the Court’s reasoning was not based upon the efficacy of the writ. In either case the writ sought an immediate presence of the prisoner as opposed to his presence after his term had been completed.