author: Gilbert, C. J.,

text:
    ROBERT J. Di GRAZIA v. COUNTY EXECUTIVE FOR MONTGOMERY COUNTY
    [No. 41,
    September Term, 1979.]

      Decided October 15, 1979.

    The cause was argued before Gilbert, C. J., and Lowe and Weant, JJ.

      Peter I. J. Davis, with whom were Charles N. Shaffer and Shaffer & Davis on the brief, for appellant.

      Richard E. Frederick, Deputy County Attorney for Montgomery County, with whom were Paul A. McGuckian, County Attorney, and Martin J. ffutt, Assistant County Attorney, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal generally involves the applicability of the provisions of Md. Ann. Code art. 27, § 727-734D, the “Law Enforcement Officers’ Bill of Rights (LEOBR) to the termination by a newly elected County Executive of the Director of Police for Montgomery County. Specifically, it tests the right of the Executive to remove and replace non-merit employees with those of his own choosing.

The appellant, Robert J. Di Grazia, was appointed, in 1976, Director of Police by former County Executive, James P. Gleason. The County Council confirmed the appointment on October 5,1976, and Di Grazia assumed office ten days later. Throughout the remainder of Mr. Gleason’s term of office, the appellant continued to so serve. Mr. Gleason opted not to seek re-election, and the appellee emerged from the elective process as the successor County Executive, taking office on December 4, 1978.

Three days thereafter, the newly installed County Executive requested Di Grazia’s resignation. When the latter refused to resign, the appellee relieved appellant of all duties and elevated Major Donald E. Brooks to the position of Acting Director of Police. In subsequent interviews, the County Executive explained his action. He said that certain statements máde by the appellant hindered the effective operation of the Police Department.

Di Grazia, however, refused to sit by idly, and, on December 13, 1978, he filed a petition under Md. Ann. Code art. 27, § 734, alleging a denial of various rights accorded him under Art. 27, § 727 et seq. A show cause order issued the next day, required a response by the County Executive on or before January 29, 1979.

Before appellee had filed any responsive pleading, Di Grazia sought to take the appellee’s deposition. The County Executive requested a protective order, which, following a hearing thereon, was granted by Judge Phillip Fairbanks. The judge’s order, predicated on his interpretation of Md. Rule 401, prevented the taking of the deposition prior to January 29, 1979.

The appellant moved for summary judgment, filing along with his motion six exhibits. The County Executive then filed a cross-motion for summary judgment adding two additional exhibits to those of appellant. Each side stipulated to the admissibility and authenticity of the other’s exhibits.

On February 27, Judge Fairbanks, in a written opinion, granted the appellee’s motion. The appellant raises two contentions in his appeal to this Court. He asserts:

I. The trial judge erred in granting the appellee’s motion for summary judgment.
II. The trial judge erred in issuing the protective order.

I.

The standards for ruling upon a motion for summary judgment have been the subject of numerous opinions of both this Court and the Court of Appeals. Md. Rule 610 a 1 provides that “a party... may at any time make a motion for summary judgment... on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law.” The trial judge is to render judgment only if “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Md. Rule 610 d 1.

Summary judgment is not a substitute for a trial but only a procedure to determine whether a trial is necessary. Kirsner v. Fleischman, 261 Md. 164, 169, 274 A.2d 339, 342 (1971); Mazur v. Scavone, 37 Md. App. 695, 698-99, 378 A.2d 1355, 1357 (1977). When ruling on such a motion, the trial judge does not decide disputed facts but, rather, decides whether any real dispute exists as to material facts. Washington Homes Inc. v. Interstate Land Development Co., Inc., 281 Md. 712, 716, 382 A.2d 555, 557 (1978); Lipscomb v. Hess, 255 Md. 109, 118, 257 A.2d 178, 183 (1969); Vanhook v. Merchants Mutual Insurance Co., 22 Md. App. 22, 25, 321 A.2d 540, 542 (1974). All duly shown facts which would be admissible at trial, and all reasonable inferences deducible therefrom, must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Washington Homes v. Interstate Land Development Co., Inc., 281 Md. at 718, 382 A.2d at 557-58; Rooney v. Statewide Plumbing, 265 Md. 559, 563-64, 290 A.2d 496, 499 (1972); Mazur v. Scavone, 37 Md. App. at 704, 378 A.2d at 1359. The function of the trial judge in deciding motions for summary judgment is much the same as that he performs at the close of all the evidence in a jury trial when passing upon motions for directed verdict or requests for peremptory instructions. Porter v. General Boiler Casing Co., 284 Md. 402, 413, 396 A.2d 1090, 1096 (1979); Washington Homes v. Interstate Land Development Co., Inc., 281 Md. at 711, 382 A.2d at 557.

Judge Fairbanks, as we see it, assigned two reasons for his conclusion:

1) The termination of Di Grazia’s employment was a failure of re-appointment, not a “firing” and did not violate Md. Ann. Code art. 27, § 733; and
2) The appellant failed to demonstrate that he met the conditions required to impose the procedural safeguards of Art. 27, §§ 728,730, and 731 upon the County Executive.

We shall discuss the second aspect of the ruling prior to consideration of the first of Judge Fairbanks’ reasons.

The LEOBR was enacted primarily to assure that certain procedural guarantees would be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal. Abbott v. Administrative Hearing Board, 33 Md. App. 681, 682, 366 A.2d 756, 757 (1976), cert. denied, 280 Md. 727 (1977). Md. Ann. Code art. 27, § 728(b) sets out four conditions which must exist in order to invoke the procedural safeguards of sections 728, 730, and 731.

1) The party claiming the benefits must be a law enforcement officer.
2) He must be under investigation or subject to interrogation.
3) The investigation or interrogation must be conducted by a law enforcement agency.
4) The investigation must have been for a reason leading to disciplinary action, demotion, or dismissal.

The circuit court concluded that the appellant failed to demonstrate the presence of the last three conditions, and, thus, the protection of Article 27, §§ 728, 730, and 731 could not be invoked. While we agree that Di Grazia was not entitled to the benefits of sections 728,730, and 731, we reach that result by traveling a different road.

In Allgood v. Somerville, 43 Md. App. 187, 403 A.2d 837 (1979), we were faced with a strikingly similar situation. There, the plaintiff was a probationary employee of the St. Mary’s County Sheriff’s Department who was dismissed without cause. She petitioned the court to enjoin the termination, claiming the benefits of the LEOBR. On demurrer by the sheriff, the circuit judge dismissed the petition stating:

“ ‘But the plaintiff does not allege or contend that she was either investigated, interrogated, or charged. Nor were any complaints or accusations made against her. This admission appears fatal, for the language of the ... [LEOBR] clearly indicates that the law enforcement agency must act in one of the above ways before the procedural safeguards and protections can come into play. Simply put, the court is of the opinion that the language of the statutes here relied upon by the plaintiff do not reach terminations of non-tenured officers without cause.’ ” 43 Md. App. 187, 403 A.2d at 839.

In affirming the chancellor, we commented that:

“Presumably, the appellant argued there, as she did here, that the statute should be construed as a tenure provision and at the very least sufficiently so as to require a law enforcement officer’s employer to justify a dismissal in court when called upon to do so. The chancellor declined to do that — and so do we.” Id.

The circuit judge found that the appellant failed to demonstrate that the appellee had undertaken an investigation. Our reading of the record supports that conclusion. The evidence before the court of the statements of the County Executive show only that he said that he had heard reports of the statements made by Di Grazia. Appellant argues that a reading of the transcripts of the interviews of the County Executive would warrant an inference that an investigation did take place. We think appellant’s position is nothing more than a murky conclusion based on a hazy inference drawn from a fuzzy suspicion. Whatever it may be, it certainly does not amount to a dispute of a material fact sufficient to defeat a motion for summary judgment. Hill v. Lewis, 21 Md. App. 121, 134, 318 A.2d 850, 858, cert. denied, 272 Md. 742 (1974).

We refuse to construe Md. Ann. Code art. 27, §§ 728, 730, and 731, under the circumstances of this case, as applying to dismissal of a non-tenured employee. We repeat what we said in Allgood v. Somerville, supra, that the LEOBR is not a substitute for tenure. Furthermore, to require that the County Executive submit what is essentially a political determination to judicial review would be an encroachment by the judicial branch upon the executive branch and an invasion of the prerogative of the Executive’s office. In the absence of an express provision to the contrary, we shall not presume that the legislature intended that the courts construe the LEOBR in such a manner as to negate decisions of an Executive as to whom shall fill purely political appointments.

We think that this disposes of the contention that Di Grazia’s “firing” violated Md. Ann. Code art. 27, § 733. Where an individual obtains a position via political appointment, he does so at the risk that his continued employment may be jeopardized by a change of administrations. Put another way, he who lives by the sword shall die by the sword.

We do not reach the other questions posed by appellant as to whether the County Executive is a law enforcement agency, and whether the appellant was punitively dismissed.

II.

The appellant fires one final shot. He argues that the trial judge erred in issuing a protective order, thereby foreclosing any opportunity of appellant’s taking the deposition of the appellee prior to January 29, 1979.

Md. Rule 401 a provides:

“At any time after jurisdiction has been obtained over any defendant or over property which is the subject of the action, but no earlier than the day on which defendant’s initial pleading is required pursuant to section a of Rule 307 (Time for Defendant’s Initial Pleading), any party to an action may, without leave of court, cause the testimony of any person, whether a party or not, to be taken by deposition for the purpose of discovery or for use as evidence in the action or for both purposes. The questions upon such deposition may be propounded orally or in writing.”

The record reflects that in the matter now before us the show cause order issued on December 14, 1978, required a response on or before January 29, 1979. The appellant noted the deposition of the appellee on January 6, 1979, and set it for January 12,1979. We think such a time frame to be a clear violation of that part of the rule which precludes any deposition until the “day on which the defendant’s initial pleading is required...,” in this case, January 29, 1979.

Di Grazia seeks by sleight of hand to throw a form of legalistic dust in our eyes, apparently in the hope that we will not see through his translucent argument that the time for the Executive’s pleading was on or after the day of service, but in any event, not later than January 29,1979. Despite the sleight of hand, in spite of the legalistic dust, our vision is unimpaired. The appellant’s argument is too specious to require discussion.

Judgment affirmed.

Costs to be paid by appellant.

      . The Director of Police in Montgomery County is a non-merit position as a department head. Montgomery Co. Code, Section 2-43; Section 33-3(c). It -is equivalent to the Chief of Police in other jurisdictions.

      . The statements which were attributed to De Grazia criticized the performance of the rank-and-file officers and described fifty percent of them as being unqualified.

      . Md. Ann. Code art. 27, ¡S 728(b) provides in pertinent part:
      “(b) Procedure to be followed at interrogation or investigation; record; representation by counsel; statute or regulation abridging right to sue; insertion of adverse material into officer’s file; chief under investigation; polygraph examination. — Whenever a law-enforcement officer is under investigation or subjected to interrogation by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or interrogation shall be conducted under the following conditions----”
      The subsection then goes on to detail a plethora of procedural safeguards governing various aspects of the investigation or interrogation. Sections 730 and 731 provide additional procedures following the investigation or interrogation. Section 733 prohibits the dismissal of a law enforcement officer for exercise of his rights under the LEOBR or under the Constitution.

      . The appellant filed as exhibits:
      a) a transcript of a press conference held by the County Executive at which he discussed his termination of Di Grazia;
      b) a transcript of a television interview of the County Executive including a discussion of the same subject;
      c) a transcript of a County Council hearing dated June 29, 1976, concerning a revision of the County Charter to make the Director of Police a non-merit department head position;
      d) a copy of the testimony of former County Executive Gleason on the same subject;
      e) an unidentified memorandum on the same subject;
      f) a legal memorandum, dated April 7, 1976, from the County Attorney on the same subject.

      . To the exhibits submitted by the appellant, the appellee added:

        a) a Montgomery County “Employee Certificate Form” which described appellant’s position as “Non-Merit, Career” along with other personal information;
      b) a certified copy of the County Council Resolution confirming Di Grazia’s appointment.


source: Caselaw Access Project

author:
Gilbert, C. J.,
      Lowe, J,

license: Public Domain

text:
    RANDALL WILLIAMS v. SUPERINTENDENT, CLIFTON T. PERKINS HOSPITAL CENTER
    [No. 62,
    September Term, 1979.]

      Per Curiam Order September 10, 1979.

      Opinion Filed October 15, 1979.

    The cause was argued before Gilbert, C. J., and Lowe and Weant, JJ.

      Bradford C. Peabody, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Judith K. Sykes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Randall M. Lutz, Assistant Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court. Lowe, J., concurs and files a concurring opinion at page 599 infra.

The law in Maryland is a living thing. Its heart is the Constitution of the United States; its blood is the Common Law of England as well as English Statutes in effect on July 4, 1776; its other vital organs consist of the Constitution of the State, the Declaration of Rights; its arteries are composed of statutes and case law, while its capillaries are local ordinances, rules, and regulations.

Just as cells of a living human body are replaced by new cells, so, too, is old law, old interpretation, or old Constitutional provision replaced by new. This appeal demonstrates that the law is constantly changing.

On September 11, 1979, immediately after oral argument in a series of four cases, of which this is but one, we issued our per curiam order in the instant case, Randall Williams v. Superintendent, Clifton T. Perkins Hospital Center, reading as follows:

“This cause having come on for argument before this Court, it is this 10th day of September, 1979, by the Court of Special Appeals of Maryland, ORDERED, that the Order of the Circuit Court of Baltimore City be, and the same is hereby reversed and remanded to that court for further proceedings for the reason that the standard of proof applicable to involuntary commitment in a mental hospital after a finding of not guilty by reason of insanity, shall be by clear and convincing evidence. The opinion of this cause shall be filed at a later date. Costs to be paid by Mayor and City Council of Baltimore. Mandate to issue forthwith.”

We now explain why we reversed the order of the Circuit Court for Baltimore City.

This appeal is concerned with the difference between the use of that standard of proof we title “a preponderance of the evidence” and that we term “clear and convincing evidence” as applied to Md. Ann. Code art. 59 (Mental Health). Candor requires that we recognize that to a jury of laymen the distinction between the two standards may well be purely academic. There are, as Mr. Chief Justice Burger observed in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), “no directly relevant empirical studies” which enable us to fathom exactly how a juror evaluates the evidence in a particular case, nor how that evidence is measured against the applicable standard of proof as related to the juror by the trial judge. Nevertheless, the. adoption of a “standard of proof is more than an empty semantic exercise.” Tippett v. Maryland, 436 F.2d 1153, 1166 (4th Cir. 1971) (Sobeloff, J., concurring and dissenting), cert. dismissed sub nom., Muriel v. Baltimore City Criminal Court [sic], 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972); Addington v. Texas, supra. The standard or measure of proof as adopted by the courts “reflects the value society places on individual liberty.” Tippett v. Maryland, supra, 436 F.2d at 1166.

Preponderance of the evidence has been defined as evidence which when fairly considered makes the stronger impression, has the greater weight, and is more convincing as to its truth than “the evidence in opposition thereto.” Black’s Law Dictionary 1404 (3d ed. 1933). See also Insurance Commissioner v. National Bureau, 248 Md. 292, 305-06, 236 A.2d 282, 289 (1967) (“ ‘[T]he weight of the evidence ... inclines more heavily to establish the existence or non-existence of facts in respect to which it is offered, than evidence to the contrary____' ”); Todd v. Weikle, 36 Md. App. 663, 670, 376 A.2d 104, 108 (1977) (“[T]he fact sought to be proved is more likely so than not so.”); McCormick, Handbook of the Law of Evidence, § 339 at 793 (2d ed. 1972) (“[E]vidence preponderates when it is more convincing to the trier of fact than the opposing evidence.”); 32A C.J.S. Evidence § 1021 at 648 (1964) (“[Ejvidence which is of greater weight, or more convincing, than that offered in opposition____”).

Clear and convincing evidence generally means “proof beyond a reasonable, i.e., a well-founded, doubt, though, of course, the evidence may be conflicting, and absolute certainty is ndt required.” Black’s La w Dictionary 337 (3d ed. 1933). Thus, it appears that the “clear and convincing standard” as applied in some types of civil cases is nothing more or less than the criminal law standard of “proof beyond a reasonable doubt” clothed in civil law garb. There are, however, those jurisdictions that reject the belief that the two standards “beyond a reasonable doubt” and “clear and convincing” are one and the same. Indeed, some define “clear and convincing” as more than a preponderance but less than “beyond a reasonable doubt.” Those so holding seem to have created a vague and uncertain standard, falling somewhere between a preponderance of evidence and beyond a reasonable doubt. It is no wonder that jurors, lawyers, and courts, when confronted with the application of clear and convincing proof vis a vis, one of the other two standards of proof, oft find themselves engaged in shoveling smoke.

Heretofore, the courts of this State have applied the preponderance of evidence test as the proper standard of proof necessary to commit judicially a person to a mental facility involuntarily. Davis v. Director, Patuxent Institution, 29 Md. App. 705, 351 A.2d 905, cert. denied, 277 Md. 736, 739, 740, cert. denied, 429 U.S. 919 (1976); Bush v. Director, Patuxent Institute, 22 Md. App. 353, 324 A.2d 162, cert. denied, 272 Md. 745 (1974); Dower v. Boslow, 539 F.2d 969 (4th Cir. 1976), rev’g 396 F. Supp. 1070 (D.C. Md. 1975); Dorsey v. Solomon, 435 F. Supp. 725 (D.C. Md. 1977), aff’d in part, rem. in part, 604 F.2d 271 (25 Cr. L. 2451 (4th Cir. 1979)).

Bush made clear that although in a proceeding before a hearing officer of the Maryland Department of Health and Mental Hygiene “clear and convincing evidence” was required by COMAR 10.21.01.03 G (6), the courts are not bound by that degree of proof. 22 Md. App. at 363-64. We pointed out in Bush that the Legislature prescribed that in a trial concerning the insanity of a person seeking release from a mental facility that the “trial shall proceed as in a civil action at law,” Md. Ann. Code art. 59, § 15(c), and that “[ajppeals may be taken from decisions or petitions as in any other equity cases----” Md. Ann. Code art. 59, § 15(e). We reasoned that had the Legislature intended a higher standard of proof than that ordinarily applied in civil or equity cases, preponderance of the evidence, it would have so stated.

Following the unmistakable lead of the Court of Appeals and this Court, the trial judge in the case now before us applied the “preponderance standard” and held the appellant to be in need of in-patient medical care and treatment, and that appellant was unwilling to be admitted voluntarily to such a facility.

The primary issue in this appeal is the proper standard of proof to be applied to the initial court hearing on exceptions to a hearing officer’s recommendations to the court, after evaluation by the hospital, following the successful use of a defense of insanity to a criminal charge.

THE FACTS

The Criminal Court of Baltimore, in July 1978, found Williams to be not guilty of certain criminal conduct, by reason of insanity. Williams was committed by Judge Joseph H. H. Kaplan to the custody of the Maryland Department of Mental Health and Hygiene (Department) for the purpose of having that agency make a determination as to whether Williams had a mental disorder. Approximately two months later Williams filed a petition in the Circuit Court of Baltimore City in which he alleged that he did not meet the statutory criteria for involuntary civil commitment. A hearing on the petition was held on October 16, 1978. At that time the hearing judge determined that the State had not met its burden of proof. The judge made no finding with respect to sanity but continued the case to October 18,1978, when, over objection, another doctor was allowed to testify for the State. His testimony satisfied the hearing judge "by a preponderance of the evidence that [Williams] has a mental disorder” and needed hospitalization for his own protection as well as the protection of others.

The appellant asseverates that the hearing court erred by using the wrong standard of proof. Appellant avers that the use of the preponderance of evidence test is no longer permissible and is, in fact, a denial of due process in the light of Addington v. Texas, supra, and Addington, appellant argues, has implicitly overruled the Maryland cases establishing the preponderance test. The standard the hearing courts should have required, appellant urges, is that of the "clear and convincing evidence,” citing Addington v. Texas, supra.

The State, on the other hand, sees a difference between the Addington facts and those now before us, and it suggests that because the appellant has been found “not guilty by reason of insanity” he was implicitly found to be “suffering from a mental disorder, and ... the finding that ... [appellant] committed a crime... [established that appellant is] a danger to ... [himself] or to the safety of the person or property of others.”

The State reasons that “[w]hile a NGRI [not guilty by reason of insanity] verdict may not provide, ipso facto, clear and convincing evidence that an insanity acquittee is mentally disordered, it creates, at least, a presumption of mental disorder. Daniels v. Superintendent, [Clifton T. Perkins Hospital.], 34 Md. App. 173, 180, [366 A.2d 1064, 1069] (1976). The existence of this presumption is, by itself, enough to place the burden of proving insanity [sic upon the insanity acquittee.”

This Court, in Daniels v. Superintendent, Clifton T. Perkins Hospital, supra, said:

“In the absence of prior adjudication, sanity is presumed by law. See McCloskey v. Director, 245 Md. 497, 504, [226 A.2d 534, 539, cert. denied, 388 U.S. 920 (1967)]; Higgins v. Carleton and Scaggs, 28 Md. 115, 141-142, [92 A.D. 666, 676-77 (1868)]. That presumption is overcome when an accused pleading not guilty by reason of insanity produces sufficient evidence to raise a doubt as to his sanity in the mind of a reasonable man. Strawderman v. State, 4 Md. App. 689, 698, [244 A.2d 888, 893 (1968), cert. denied, 252 Md. 733 (1969)]. Having overcome the presumption of sanity in defense of his homicide case as a matter of public judicial record, appellant may no longer rely upon a presumption of sanity. Cf. Salinger v. Superintendent, 206 Md. 623, 631, [112 A.2d 907, 910 (1955)]. His present status, derived from his adjudication of insanity, is that he is not sane. To alter this state of affairs, appellant must act affirmatively by asserting his sanity under § 15, and follow with sufficient proof to overcome the inertia of the trier of facts. We hold that Judge Grady properly instructed the jury that appellant had the burden of 'proving the issues...” 34 Md. App. at 180,366 A.2d at 1069. (Emphasis supplied.) (Footnote omitted.)

Addington, which had not been decided at the time of Daniels, casts an ominous cloud over the italicized portion of Daniels. Patently, the referral, by a trial court of a person who has been found not guilty by reason of insanity to a mental facility, is involuntary, unless it can be successfully argued that a voluntary plea of not guilty by reason of insanity removes the element of involuntariness from the trial court’s referral to a mental facility. To accomplish that we would have to hold that whenever a plea of not guilty by reason of insanity is successfully invoked, subsequent commitment to a mental hospital is ipso facto voluntary. One difficulty with that approach is that if, in fact, and the verdict of the criminal trial would so indicate, the accused was insane, there is an area of doubt that his plea was knowingly and intelligently made or that he, and not his counsel, made it. If the latter actually entered the plea, even over the protestation of his client, and the plea were successful, the accused would then be bound thereby in a subsequent sanity hearing.

A jury’s verdict of “not guilty by reason of insanity” is in essence a negative verdict against the State. It denotes that the State has failed to meet the burden of demonstrating, beyond a reasonable doubt, the sanity of the accused. Hawkins v. State, 34 Md. App. 82, 366 A.2d 421 (1976); See Dorsey v. Solomon, 604 F.2d 271 (25 Cr. L. 2451 (1979)).

The Chief Justice wrote, in Addington v. Texas, supra, that a “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See, e.g., Jackson v. Indiana, 406 U.S. 715 [92 S.Ct. 1845, 32 L.Ed.2d 435] (1972); Humphrey v. Cady, 405 U.S. 504 [92 S.Ct. 1048, 31 L.Ed.2d 394] (1972); In re: Gault, 387 U.S. 1, [87 S.Ct. 1428, 18 L.Ed.2d 527] (1967); Specht v. Patterson, 386 U.S. 605, [87 S.Ct. 1209, 18 L.Ed.2d 326] (1967).... [I]t is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual.” 441 U.S. at 425, 99 S.Ct. at 1809, 60 L.Ed.2d at 330-31.

The Court, through the Chief Justice, went on to opine:

“At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.
The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” Id. at 426-27, 99 S.Ct. at 1809-10, 60 L.Ed.2d at 331-32. (Emphasis supplied.)

The Court rejected the suggestion that it apply the criminal law standard of beyond a reasonable doubt to civil commitment “because, given the uncertainties of psychiatric diagnosis it may impose a burden the [Sjtate cannot meet and thereby erect an unreasonable barrier to needed medical treatment____To meet due process demands, the standard has to inform the factfinder that the proof must be greater than the preponderance of evidence standard applicable to other categories of civil cases.” Id. at 432-33, 99 S.Ct. at 1812-13,60 L.Ed.2d at 335. Addington established the lowest standard that may be employed by the States in civil commitment as, "equal to or greater than the 'clear and convincing’ standard.”

One effect of Addington is to create for both the State and the defense counsel a reversal of roles. At the time of the hearing on the issue of the accused’s sanity, vel non, it is incumbent upon the State to prove, beyond a reasonable doubt, the sanity of the defendant. Riggleman v. State, 33 Md. App. 344, 351-52, 364 A.2d 1159, 1163-64 (1976); Strawderman v. State, supra, 4 Md. App. at 697-98, 224 A.2d at 892-93. Defense counsel, on the other hand, endeavors to erode the State’s proof through the use of the affirmative defense of insanity. Once the trier of fact has found that the defendant was, indeed, insane at the time of the commission of the offense, and concomitantly that the State has not met its burden, the scene shifts and the players change parts. After the examination and evaluation mandated by Laws 1979, ch. 701, § 1 (Md. Ann. Code art. 59, § 27(B)), a hearing on exceptions, be they by the State or by the person who was found not guilty by reason of insanity, must be held by the Court. Laws 1979, ch. 701, § 1 (Md. Ann. Code art. 59, § 27B(c)). At that hearing the State has thrust upon it the duty of proving by clear and convincing evidence that the very person it had earlier unsuccessfully attempted to prove sane, was, in fact, suffering from “a mental disorder and by reason of that disorder would be a danger to himself or the person or property of others if not confined in an institution for in-patient care or treatment.” Defense counsel then undertakes to show that the person previously found not guilty because of a mental disorder has, in fact, no disorder at all at the time of the hearing on the exceptions and, if he has such a disorder, he is not a danger to himself or others. Laws 1979, ch. 701, § 1 (Md. Ann. Code art. 59, § 27B(E)).

We make clear that our holding today is limited to the initial court hearing following the successful interposition of a plea of not guilty by reason of insanity. It is at that hearing, and that hearing alone, that the State must show by clear and convincing evidence that the NGRI acquitee "has a mental disorder and by reason of that mental disorder would be a danger to himself, or the person or property of others if not confined in an institution----” Laws 1979, ch. 701, § 1 (Md. Ann. Code art. 59, § 27B(E)). In any subsequent hearing permitted by Md. Ann. Code art. 59, § 15, the burden of proof rests on the person to establish by a preponderance of the evidence that he is not suffering from a mental disorder, and, if so, whether the disorder is of such a nature that confinement in an institution or hospital is necessary for the protection of the person himself or the person or property of others. Md. Ann. Code art. 59, § 15. Appeals from decisions on petitions filed under section 15 are still allowed “as in other equity cases and may be taken by the petitioner or the respondent.” Md. Ann. Code art. 59, § 15(e).

Because Laws 1979, ch. 701, § 1 establishes the standard of proof at the initial hearing on exceptions following the successful defense of “not guilty by reason of insanity” to be “upon a preonderance of the evidence, ”that section of the statute is constitutionally infirm. Irrespective of the wording of the statute to the contrary, it must, under Addington, be read to provide that the measure of proof is “upon clear and convincing evidence.” The balance of Md. Ann. Code art. 59 is unaffected. Md. Ann. Code art. 1 § 23.

Lowe, J,

concurring:

I am in complete accord with the majority opinion as written but for a single word. I find no “cloud” over the italicized sentence from the Daniels v. Superintendent, 34 Md. App. 173, 180 (1976), quotation,

‘‘[hjaving overcome the presumption of sanity in defense of his homicide case as a matter of public judicial record, appellant may no longer rely upon a presumption of sanity. ”

Daniels was an appeal from an unsuccessful ruling after a hearing on petition for release under Md. Code, Art. 59, § 15, two years after his commitment under old § 27. Id. at 174. As pointed out by the majority in n. 6, the initial commitment proceeding with which we are preoccupied in the case sub judice, was not enacted until 1979, three years after Daniels was decided. In the context of this case I concur that the sentence does not provide even supportive dicta to the State for its theory that the presumption of sanity is lost upon a not-guilty-by-reason-of-insanity acquittal rather than upon the succeeding commitment initially made under the new § 27 proceeding. Addington v. Texas, 441 U.S. 418, 60 L.Ed.2d 323 (1979), does not, however, endanger either the holding of Daniels or the import of the sentence in the context in which it was written. Daniels addresses a § 15 petitioner’s burden and remains correct as written. Randall Williams addresses the State’s newly acquired burden in a contemporary § 27 proceeding and is equally correct.

As pointed out by the majority in its opinion in this case:

“In any subsequent hearing permitted by Md. Ann. Code art. 59, § 15, the burden of proof rests on the person to establish by a preponderance of the evidence that he is not suffering from a mental disorder . . . .” p. 598.

It follows that such person {e.g., the appellant Daniels) may — at that “subsequent hearing” stage — no longer rely on the presumption of sanity. Neither Williams nor Daniels should be looked to as authority for the other.

      . Maryland Constitution, Declaration of Rights, Art. V.

      . The other three cases are Tyrone Jolley v. Superintendent, Clifton T. Perkins Hosp. Center, No. 74, September Term, 1979, Levon Moore v. State of Maryland, No. 144, September Term, 1979, and Arthur Hubbard v. Superintendent, Clifton T. Perkins Hosp. Center, No. 178, September Term, 1979. The three cases were decided in per curiam opinions filed the same day as the opinion in the instant case.

      . The per curiam orders in the other cases are identical except for the names of the litigants and of the court whose order was reversed.

      . Laws 1979, ch. 701, effective July 1,1979, substantially amended what was section 27. Former section 27 was repealed and new sections 27, 27A, 27B, and 27C were enacted. Those amendments, however, are procedural in nature and, if applicable, would not affect the outcome of the instant case. We note, however, that as of July 1, 1979, an appeal, in cases involving the initial sanity hearing under Art. 59, may no longer be taken to this Court as a matter of right. Redress of alleged wrongs by the circuit courts must be by way of an “application for leave to appeal.” Md. Ann. Code art. 59, § 27B

      . See also, e.g., Crews v. Director, 245 Md. 174, 225 A.2d 436 (1967); Director v. Daniels, 243 Md. 16, 221 A.2d 397, cert. denied, 385 U.S. 940 (1966); Dickerson v. Director, 235 Md. 668, 202 A.2d 765 (1964); Purks v. State, 226 Md. 43, 171 A.2d 726 (1961); Walker v. Director, 6 Md. App. 206, 250 A.2d 900 (1969).

      . Under the former code, the procedure for release from the hospital was governed by Md. Ann. Code art. 59, §§ 27 and 15. By Laws 1979, ch. 701, § 1, former section 27 was repealed and reenacted. Section 15 is no longer applicable to the initial judicial hearing when, as here, the defense of not guilty by reason of insanity has been successfully employed.

      . “Mental Disorder means mental illness or any form of behavioral or emotional illness resulting from any psychiatric or neurological disorder. The term shall not include mental retardation.” Md. Ann. Code art. 59, § 3(f).

      . But see our discussion ante, pp. 3 and 4.

      . Laws 1979, ch. 701, effective July 1, 1979, is a clear indication of the legislative will that such a plea be styled “Not guilty by reason of insanity,” notwithstanding prior decisions of this Court in Riggleman v. State, supra, 33 Md. App. at 350; Sweeney v. State, 6 Md. App. 431, 439, n. 7, 252 A.2d 9, 14 (1969) construing former Md. Rule 720 as abolishing the plea of “not guilty by reason of insanity” and replacing it with “not guilty by reason of insanity as «provided by statute.” We now think that a plea, seeking to intercalate insanity of a defendant is properly termed “Not guilty by reason of insanity.” Laws 1979, ch. 701, § 1 (Md. Ann. Code art. 59, s§ 27,27A, 27B, and 27C).

      . See n. 4, supra, as to the right to an application for leave to appeal from an adverse, initial hearing after a verdict of NGRI. In section 15 cases, the appeal is a matter of right, in section 27B cases, there is no right of appeal, but an application for leave to appeal.

      . The General Assembly of Maryland might want to consider amending the constitutionally infirm section 27B(I).

      . That section of the code provides that on and after July 1, 1978, all statutes “are severable unless the statute specifically provides that its provisions are not severable.”


author: MacDaniel, J.,

text:
    SHAFER BROTHERS et al. v. JOHN V. KITE, JR. et al. SHAFER BROTHERS et al. v. LOUISE SHAFER et al.
    [No. 37,
    [No. 38,
    September Term, 1979.]
    September Term, 1979.]

      Decided October 16, 1979.

      The cause was argued before Liss, Couch and MacDaniel, JJ.

      Elwood E. Swam for all appellants.

      William T Fitzgerald for appellees John V. Kite, Jr. et al. William B. Dulany, with whom were Dulany & Davis on the brief, for appellees Louise Shafer et al.
   MacDaniel, J.,

delivered the opinion of the Court.

We have consolidated these cases in a single opinion because they involve the same parties as appellants and similar facts determine the outcome.

On July 21, 1978, John V. Kite and Louise Shafer, the appellees, separately filed suit against the appellants, Shafer Brothers, a partnership, based on the respective confessed judgment notes held by the appellees. The two notes were both dated July 20, 1978, and they were each signed by Lindsay B. Shafer, with “Shafer Brothers” indicated on the notes. Kite’s note was for $22,766.86, and Louise Shafer’s note was for $105,825.00. Judgments by confession were entered on July 21, 1978, for Kite and Louise Shafer, respectively. On August 9,1978, the appellants filed a Motion to Vacate Judgment in each case, arguing that, pursuant to their August 2, 1977, Bill of Complaint to terminate the partnership and liquidate the assets, no partnership existed when the confessed judgment notes were signed and that, in addition, Lindsay B. Shafer did not have authority to act for the partnership with respect to the confessed judgment notes. On August 16 and 17 the appellants filed Motions for Summary Judgment in their favor in the two cases. Answers to the Motions for Summary Judgment were filed by the respective appellees, and depositions were taken. Louise Shafer also filed a Motion Ne Recipiatur to the Motion to Vacate Judgment in her case. On November 6,1978, a hearing on all of the motions in the two cases was held in the Circuit Court for Carroll County. On December 11, 1978, by Memorandum Orders, the trial judge denied the appellants’ Motions to Vacate Judgment and Motions for Summary Judgment.

In the two Memorandum Orders, the trial judge stated:

“... nor was the partnership dissolved as alleged in the Motion to Vacate Judgment. There was no order of dissolution as contemplated by § 9-603 of the Corporations and Associations Article.
We note that § 9-601 of the Corporations and Associations Article of the Annotated Code of Maryland states:
‘§ 9-601. Partnership not terminated by dissolution.
On dissolution, the partnership is not terminated but continues until the winding up of partnership affairs is completed.’ ”

The trial judge then cited Bradford v. Harford Bank, 148 Md. 1, 23 (1925), for the following legal principle:

“ ‘... It has been repeatedly decided by our predecessors that a firm is bound by notes executed by one partner, without showing that he had express authority from his co-partner, when such authority would be implied from the nature of the business. Porter v. White, 39 Md. 613; Hopkins v. Boyd, 11 Md. 109; Coursey v. Baker, [7 H. & J. 28].’ ”

In the Kite case, the judge concluded his denial of the appellants’ motions with the following explanation:

“The exhibits of the depositions of Lewis W. Shafer, Jr. and Joseph Shafer filed in this case clearly show that it was a normal business practice of the partnership for Lindsay Shafer to execute notes for the partnership.
We observe that the note executed by Lindsay Shafer in favor of John V. Kite, Jr. on July 20,1978, was to cover some 13 checks payable to John V. Kite issued by Lindsay Shafer during the period February 14, 1975 — August 12, 1976, that were returned for insufficient funds or were not presented for payment at the request of Lindsay Shafer. In our opinion, these checks, having been issued as part of the partnership business, would become a liability of the partnership.”

In the second case, involving Louise Shafer, the trial judge explained his denial of the appellants’ motions as follows:

“Testimony at the hearing on November 6, 1978, clearly indicated that it had been the practice in the past for Lindsay B. Shafer to execute notes binding the partnership.
Finally, we consider the allegations contained in paragraphs 4 and 5 of the Defendants’ Motion to Vacate Judgments. Louise Shafer testified that the note in dispute represents money that she inherited and loaned to Lindsay B. Shafer for use in the partnership. Lindsay B. Shafer’s testimony corroborated that of Louise Shafer. Joseph Shafer in his testimony stated that he did not know that the partnership borrowed money from Louise Shafer. There was no denial of same by anyone.”

The judge held that Louise Shafer’s Motion Ne Recipiatur was moot in light of his denial of the appellants’ motions.

The appellants now contest the trial judge’s rulings on their motions. We will first address the Motions to Vacate Judgment.

I

Maryland Rule 645, Judgment by Confession ... Law, provides in part:

“c. Application by Defendant.
Application to vacate, open or modify the judgment must be made by motion within 30 days after service of the summons. The motion shall be made on the ground that the defendant has a meritorious defense to the cause of action. It shall set forth fully the facts relied on for such defense....
d. Disposition of Application.
The motion shall be heard promptly by the court. If the evidence presented at the hearing establishes that there are substantial and sufficient grounds for an actual controversy as to the merits of the case, the court shall order the judgment by confession vacated, opened or modified with leave to the defendant to file a pleading and the case shall stand for trial____”

In Billingsley v. Lincoln National Bank, 271 Md. 683, 689 (1974), the Court of Appeals addressed the issue of the finality of confessed judgments when there has been a timely appeal, as in the present case. The Court said:

“1 “To be successful in moving to strike a judgment by confession, one must adduce evidence in support of his motion sufficient to persuade the fair and reasoned judgment of an ordinary man that there are substantial and sufficient grounds for an actual controversy as to the merits of the case. If he does so, he is deemed to have met the burden of showing he has a meritorious defense, without the necessity of showing he will eventually prevail. This is to say that if the evidence is such that persons of ordinary judgment and prudence could fairly draw different inferences from it, the controversy should not be decided as a matter of law but instead should be submitted to a trier of fact. If a meritorious defense is made out (by affidavits or testimony, Johnson v. Phillips, supra, 143 Md. 16, 122 A. 7) the Court should liberally exercise its equitable jurisdiction over judgments entered by confession and, on application of a defendant who prima facie shows such defense, vacate the judgment to permit a trial on the merits. Cropper v. Graves, 216 Md. 229, 139 A. 2d 721; Remsburg v. Baker, 212 Md. 465, 470, 129 A. 2d 687; Keiner v. Commerce Trust Co., 154 Md. 366, 370-371, 141 A. 121.” ’ 264 Md. at 444 (emphasis added).”

Maryland debtors, to open a confessed judgment, “... are merely required to meet a standard that ‘is a minimal obstacle.’ ” Id. at 690.

In the present cases, the trial judge erred, first, in making final factual determinations and decisions on the merits. Under the above standards, in ruling on Motions to Vacate Judgments, a judge is not the “trier of facts” as in proceedings on the substantive merits. Rather, he must decide merely whether the facts presented by the movants, if believed, would constitute a meritorious defense.

The issue of what can constitute a meritorious defense, assuming that the supporting facts are believed, is a question of law. We hold that in the present cases the trial judge also misapplied the law. For the reasons indicated below, he should have granted the appellants’ Motions to Vacate the Judgments.

We note, initially, that for the reasons indicated in his Memorandum Orders, the trial judge correctly found that the Shafer Brothers partnership had not been terminated as of the date of the confessed judgment notes.

The appellants argue, in support of their Motions to Vacate Judgment, that the consent of less than all of the partners to a confessed judgment note against a partnership does not operate to bind the other partners to the confessed judgment portion of the instrument, as well as any partners actually signing such an instrument, unless the other partners “actually authorized” the signing. We agree.

The Uniform Partnership Act was enacted in Maryland by Chapter 175 of the Acts of 1916. Its provisions are now set forth in the Corporations and Associations Article of the Annotated Code of Maryland. Section 9-301 provides in part:

“§ 9-301. Partner agent of partnership.
(c) Unless authorized by the other partners or unless they have abandoned the business, one or more but less than all the partners have no authority to:
(4) Confess a judgment.” (Emphasis added.)

No cases have arisen in Maryland under the above statutory provision of its predecessors. However, in Rhodes v. Amsinck, 38 Md. 345, 353-43 (1873), the common law was stated as follows:

“Now, even during the existence of the partnership, there is no implied authority in one partner to voluntarily appear and confess judgment to bind his copartners; and where one partner does voluntarily appear to an action and confess judgment as against all the partners, without the consent of his copartners, the judgment thus confessed binds only the partner confessing! and, under an execution on such judgment, the confessing or acting partner’s separate interest alone in the partnership property can be seized and sold. Green v. Beals, 2 Caines, 254; Crane v. French, 1 Wend. 311; McBride v. Hagan, Ib. 335; Grazebrook v. McCreedie, 9 Ib. 437; Waring v. Robinson, 1 Hoff. Ch. 524; Pars, on Partn. 179, note.” (Emphasis added.)

Under the Uniform Partnership Act, as well as under Maryland common law, the crucial issue is what constitutes “authorization” by the members of a partnership for less than all of the partners to confess a judgment against the partnership. Cases in other jurisdictions shed light on the meaning of “authorize” in the above statutory provision.

Under a statutory provision identical to § 9-301, supra, the Court of Appeals of Ohio in Farm Bureau Agricultural Credit Corp. v. Dicke, 277 N.E.2d 562, 565 (1972), said:

“This means, of course, that one partner, unless authorized, may not confess a judgment against a partnership, but does not preclude him from confessing a judgment against himself alone. It is likewise obvious that the mere existence of the partnership relation does not, in and of itself, extend the authority of the other partners to one partner to confess judgment. In other words, the authority is not implied by the partnership relationship but must be expressly granted or appear from other circumstances.”

In Murray v. Korshak, 201 N.E.2d 737, 741 (1964), likewise decided under the identical Uniform Partnership Act provision, the Appellate Court of Illinois stated:

“There is no requirement in the statute that such authorization must be in writing. It is only with respect to limited partnerships that the statute specifically provides that the written consent of all the limited partners must be had.... [Sjuch authorization may be established, as it was in the instant case, by oral evidence.”

Finally, in Jamestown Banking Co. v. Conneaut Lake Dock & D. Co., 14 A.2d 325, 327-28 (1940), the Supreme Court of Pennsylvania said:

“... the burden was on appellants to prove facts sufficient to show either that the instruments forming the basis of the [confessed] judgment were signed by Holcomb and Ehrhart for the partnership with Harshaw’s express authority or consent, or that he subsequently ratified, its execution by acquiescence or otherwise. A partner has implied authority only to bind his firm by transactions in the ordinary course of business.... But for a transaction not in the ordinary course of business a partner has no implied authority to bind his firm. Such a transaction is a confession of judgment---There is here no evidence of such express authority. On the question of ratification a conflict arose which could be resolved only by a jury trial.”

We conclude, therefore, that under Maryland’s § 9-301, supra, there must be actual authorization by all of the other partners before the signature of less than all of the partners can confess a judgment against the partnership. For “actual authorization” there must be some positive evidence of consent or ratification. This authorization cannot be implied as the ordinary course of business.

In the present cases, the non-signing partners testified, by deposition or at the hearing on the motions, that they had not authorized Lindsay B. Shafer to sign the confessed judgment notes on behalf of the partnership. This alone satisfies the appellants’ burden of showing, prima facie, a meritorious defense. In their briefs, the appellees argue that authorization may be implied from the fact that certain earlier confessed judgment notes, involving other plaintiffs, had been signed by Lindsay Shafer and that the appellants had not attempted to have those particular judgments against the partnership vacated. However, we feel that it does not necessarily follow that Lindsay Shafer was authorized to sign any or all future confessed judgment notes. At best, a question of fact was raised, and the issue of actual authorization should have been determined at a trial on the issue. Therefore, we hold that the trial judge should have granted the appellants’ Motions to Vacate the Judgments and the cases should have been set for trial.

The trial judge reasoned that the authority to sign confessed judgment notes on behalf of the partnership could be implied from the fact that the underlying obligations arose from normal business practices of the partnership, but, as we have indicated above, this is clearly incorrect, and such an implication cannot, as a matter of law, be made.

The appellee Kite argues that Murray v. Korshak, supra, mandates an outcome in his favor. We disagree. That case is materially different because it was tried on the merits. There, evidence was introduced at trial to show that both partners were present at the meeting in which a confessed judgment note was requested and that the non-signing partner handed it to the signing partner, thereby signifying knowing acquiescence in the signing of the note. The judge, as trier of the facts, was, therefore, entitled to conclude that there had been actual authorization.

The appellee Louise Shafer also argues that her Motion Ne Recipiatur, filed on August 22,1978, should now be granted. She contends that under Maryland Rule 321 the appellants should have supported their Motion to Vacate Judgment by affidavit and that, because they did not, the Motion to Vacate Judgment should be stricken under Maryland Rule 322.

Maryland Rule 321 provides, in part:

“b. Affidavit Not Required Exception Partial Immunity.
A motion need not be supported by affidavit unless it is founded on facts not apparent from the record or from papers on file in the proceedings. In such event the motion shall be supported by affidavit and shall be accompanied by the papers on which it is based.”

See also 3 Poe, Pl. & Pr., § 394. We note from the record, however, that the appellants’ Motion for Summary Judgment, filed on August 17, 1978, which repeated the facts forming the basis for their asserted meritorious defense, was accompanied by an affidavit. This affidavit was already on file at the time that the appellee filed her Motion Ne Recipiatur. Given that posture of the case, we hold that the requirements of Maryland Rule 321 were met by the appellants and that the Motion Ne Recipiatur should not have been granted.

We wish, finally, to note, that with respect to the trial on the merits, we express no opinion as to who should prevail. We hold, merely, that the appellants adequately raised the possibility of a meritorious defense and that, therefore, they are entitled to have the judgments against them vacated and the cases proceed to trial.

II

We hold that the trial judge did not err in refusing to grant the appellants’ Motions for Summary Judgment. In Di Grazia v. County Executive for Montgomery Co., 43 Md. App. 580 (1979), we said:

“The standards for ruling upon a motion for summary judgment have been the subject of numerous opinions of both this Court and the Court of Appeals. Md. Rule 610 a 1 provides that ‘a party ... may at any time make a motion for summary judgment... on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law.’ The trial judge is to render judgment only if ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Md. Rule 610 d 1.
Summary judgment is not a substitute for a trial but only a procedure to determine whether a trial is necessary. Kirsner v. Fleischman, 261 Md. 164, 169, 274 A.2d 339, 342 (1971); Mazur v. Scavone, 37 Md. App. 695, 698-99, 378 A.2d 1355, 1357 (1977). When ruling on such a motion, the trial judge does not decide disputed facts but, rather, decides whether any real dispute exists as to material facts. Washington Homes Inc. v. Interstate Land Development Co., Inc., 281 Md. 712, 716, 382 A.2d 555, 557 (1978); Lipscomb v. Hess, 255 Md. 109, 118, 257 A.2d 178, 183 (1969); Vanhook v. Merchants Mutual Insurance Co., 22 Md. App. 22, 25, 321 A.2d 540, 542 (1974).”

A thorough review of the record in this case shows that at least several matters related to the authority of Lindsay Shafer to sign confessed judgment notes are in dispute. Since these factual conflicts exist, Summary Judgments were properly denied.

Rulings on motions for summary judgment affirmed.

Ruling on motion ne recipiatur affirmed.

Rulings on motions to vacate judgment reversed.

Cases remanded for trial.

Costs to abide the result.

      . The appellants do not argue that a confessed judgment note signed by less than all of the partners cannot operate as a valid note of indebtedness. They merely argue that the confessed judgment portion does not bind the other partners unless they “actually authorized” the signing of confessed judgments or confessed judgment notes. In this opinion, we in no way infer that, where the confessed judgment portion of a confessed judgment note is not binding on non-signing partners, the evidence of indebtedness portion of the confessed judgment note cannot be valid.

      . In Geo. Bert. Cropper, Inc. v. Wisterco, 284 Md. 601, 615 (1979), the Court of Appeals noted that the Uniform Partnership Act has generally been consistent with prior Maryland common law.

      . Maryland Rule 322 provides:

        "Rule 322. Motion Ne Recipiatur or to Strike — Gen’l.

      A motion that any pleading be not received either because it is filed too late or is not properly verified, or for any other reason, as well as any motion to strike out any preceding motion for any reason, may be made either by amotion ne recipiatur or by a motion to strike, or both.”


author: Thompson, J.,

text:
    CARLTON BARBER v. STATE OF MARYLAND
    [No. 67,
    September Term, 1979.]

      Decided October 16, 1979.

    The cause was submitted on briefs to Morton, Thompson and Moore, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Martha Weisheit, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Kathleen M. Sweeney, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Leslie A. Stein, Assistant State’s Attorney for Baltimore City, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Carlton Barber, the appellant, was convicted in the Criminal Court of Baltimore of possession of both heroin and marijuana with intent to distribute. He received a twenty year term for the heroin charge and a five year concurrent term on the marijuana charge. This appeal presents the sole issue of whether or not the search warrant was supported by probable cause. The affidavit was based on hearsay information supplied by an unidentified informant. Appellant contends that the search warrant was not supported by probable cause because the affidavit did not set forth the credibility of the informant pursuant to Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). He argues the informant was not credible and the information was not reliable because the affidavit alleged that the informant had been proven reliable by only one previous controlled purchase. He says that the reliability of a confidential informant cannot be established by only a single controlled purchase. He also argues that the second half of the Aguilar test, which provides that the affidavit must relate the informant’s basis of knowledge, is also not satisfied by the affidavit.

The affidavit executed by the officer reads in part as follows:

“During the first week of February 1978, your AFFIANT was contacted by a reliable informant who will be known for the purpose of this warrant as N.D. 40. N.D. 40 had information pertaining to a person selling HEROIN from his residence. N.D. 40 has been proven reliable in the past by making a Controlled Purchase of a Controlled Dangerous Substance within the past 3 weeks, which resulted in the execution of 1 search and seizure warrant at which time 1 person was arrested and charged with narcotic violations. Also as a result a quantity of Controlled Dangerous Substances were recovered. N.D. 40 is familiar with HEROIN, and has used HEROIN in the past.
“N.D. 40 stated that one Carlton David Barber, N/M/24 yrs., D.O.B.1-27-54, 5'9", 154 lbs., is
currently engaged in the sale of HEROIN from his residence located at 2349 W. North Ave. N.D. 40 went into detail by stating that on several occasions during the months of January and February 1978, N.D. 40 purchased HEROIN from Carlton at his residence located at 2349 W. North Ave. N.D. 40 further states that Carlton has been arrested in the past for narcotic violations.
“Acting on the above your AFFIANT responded to 2349 W. North Ave., and found same to be a 2 story brick dwelling with a brown door. Your AFFIANT made a check with the Balto. City Police Dept. Central Records Division and found that Carlton David Barber, N/M/24yrs., D.O.B.1-27-54 has been arrested 1 time for Possession of MARIHUANA, under BofI 246-046, and is on probation until 5-13-78. A check was also made with the C&P and found that service for 2349 W. North Ave. was listed to Carlton David Barber.”

In determining whether probable cause exists, the Supreme Court has developed a two-pronged test in Aguilar v. Texas, supra. The Court stated that sufficient probable cause required that:

“[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, was ‘credible’ or his information ‘reliable.’ ” (Footnote omitted). 378 U.S. 114.

The State contends that the veracity prong was satisfied by the informant’s past performance, his declaration against penal interest and independent police corroboration of facts. A close examination of these factors illustrates that the credibility of the informant was not established. The magistrate did not have enough indicia of the informant’s credibility to support a finding of probable cause. The affidavit states that the informant had participated in a controlled buy which led to one arrest and a seizure of controlled dangerous substances. It is true that this Court has stated that a controlled buy is sufficient to establish credibility of the informant. Hignut v. State, 17 Md. App. 399, 303 A.2d 173, 180 (1973). The controlled buy in Hignut, however, related to those against whom the search warrant was executed. In other words, the informant had participated in the controlled buy with the person who would be subject to the search warrant in issue. In the present case, the informant did not participate in a controlled buy with Barber, but with someone else unrelated to the appellant. Although we could find no case specifically on point, it seems clear that only one previous controlled buy unrelated to the present search warrant will not prove the veracity of the informant. What an individual would do when he knows police officers are watching him may well be entirely different from what he does otherwise. All cases we could find where the veracity of the informant was upheld show that the informant’s reliability had been repeatedly demonstrated. See, e.g., McCray v. Illinois, 386 U.S. 300, 303, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) (informant had supplied accurate information on approximately 15 prior occasions); State v. Kraft, 269 Md. 583, 307 A.2d 683 (1973), cert. denied, 416 U.S. 994 (1974) (informant had previously been responsible for eleven narcotics arrests); Comi v. State, 26 Md. App. 511, 338 A.2d 918, cert. denied, 276 Md. 740 (1975) (informant had previously provided accurate information to other police officers beside affiant); Owings v. State, 8 Md. App. 572, 573-74, 261 A.2d 223, cert. denied, 258 Md. 729 (1970), cert. denied, 401 U.S. 937 (1971) (informant had supplied information leading to the arrest and conviction of five individuals and recoveries of various amounts of drugs); Green v. State, 8 Md. App. 352, 353-54, 259 A.2d 829 (1969), cert. denied, 257 Md. 733 (1970) (informant had supplied information to’police on a daily basis for a seven month period, information had led to 30 — 40 convictions).

Appellee also contends that the informant’s credibility was established because he told affiant he bought heroin from the appellant; thus he made a declaration against penal interest. In Merrick v. State, 283 Md. 1, 389 A.2d 328 (1978), the Court of Appeals held that a declaration against penal interest was sufficient to establish veracity of an identified informant. The Court specifically did not decide whether a declaration against penal interest by an unidentified informant would establish his veracity. The Court analyzed United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), saying:

“Mr. Chief Justice Burger in an opinion announcing the judgment of the Court upholding the validity of a search and seizure warrant, declared, after observing that statements in the application for the warrant were against an unnamed informant’s penal interest:
‘Admissions of crime, like admissions against proprietary interest, carry their own indicia of credibility — sufficient at least to support a finding of probable cause____’ Id. at 583.
“This conclusion, contained in Part III of the opinion, was not shared by a majority of the Court. The Chief Justice was joined only by Mr. Justice Black, Mr. Justice White and Mr. Justice Blackmun on the point. Mr. Justice Harlan, with whom Mr. Justice Douglas, Mr. Justice Brennan and Mr. Justice Marshall joined, expressly disagreed in a dissenting opinion. Thus, although there was a majority of five joining in the judgment, there was only a plurality of four in agreement with the opinion delivering the judgment. The lack of an agreement by a majority of the Court on the principles of law involved prevents the opinion from being an authoritative determination for other cases. United States v. Pink, 315 U.S. 203, 216, 62 S.Ct. 552 (1942). See Annot., 65 A.L.R. 3d 504 (1975). Its findings, conclusions and views are not constitutionally the ‘Supreme Law’ of Maryland, nor are the ‘Judges of this State, and all the People of this State ... bound thereby.’ In other words, the conclusion regarding statements against penal interest expressed by the four justices in the Burger opinion is not controlling in this State; it is no more binding than is the contrary conclusion reached by the four justices in the Harlan dissenting opinion. Therefore, we may look at the Burger opinion and the Harlan opinion on the question of statements in applications for warrants which are against the penal interest of the declarant only in the frame of reference of the persuasiveness of the respective reasons advanced.” (footnotes omitted). 283 Md. at 6-8.

Mr. Chief Justice Burger continued in Harris.

“Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements, People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a ‘break’ does not eliminate the residual risk and opprobrium of having admitted criminal conduct.” 403 U.S. at 583-4.
“Nor is it especially significant that neither the name nor the person of the informant was produced before the magistrate. The police themselves almost certainly knew his name, the truth of the affidavit is not in issue, and McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), disposed of the claim that the informant must be produced whenever the defendant so demands.” 403 U.S. 584-5.

Mr. Justice Harlan would have found that an unnamed informant was not credible simply because he confessed to having committed a crime. He stated that if the identity of the declarant is not revealed, it cannot be readily assumed that the declarant would suspect the statement would do him harm. Harris at 594. He also noted that the thrust of Spinelli/Aguilar was to prohibit issuance of warrants on uncorroborated hearsay and said:

“[T]he effect of adopting such a rule would be to encourage the Government to prefer as informants participants in criminal enterprises rather than ordinary citizens, a goal the Government specifically eschews in its brief in this case upon the explicit premise that such persons are often less reliable than those who obey the law.” 403 U.S. at 595.

The Court of Appeals in Merrick noted the importance of identifying the informant, stating:

“We think that the identification in the affidavit of the informant here is significant in assessing his credibility. We have said that the strictures of Aguilar-Spinelli are aimed primarily at unnamed police informers. Mobley and King v. State, 270 Md. 76, 85, 310 A.2d 803 (1973), cert. denied, 416 U.S. 975 (1974).
‘ “The practical distinction is that in dealing with a named source, the very naming of the source and the relationship of the source to the observed information may go a long way (or even be sufficient unto itself), under the facts of a particular case, to establish the credibility of that source or the reliability of his information.” ’ Andresen v. State, 24 Md. App. 128, 176, 331 A.2d 78, cert. denied, 274 Md. 725 (1975), aff’d, 427 U.S. 463, 96 S.Ct. 2737 (1976) (quoting Dawson v. State, 11 Md. App. 694, 699, 276 A.2d 680, cert. denied, 263 Md. 711, 712 (1971)).” 283 Md. at 16.

The Court in Merrick recognized that in the majority of those cases in other jurisdictions in which a declaration against penal interest was found to be sufficient to show credibility, the informant was identified, which was indicative of the probative value usually given to identification. The Court repeated Mr. Justice Harlan’s assertion that

“[Magistrates may not properly predicate a determination that an unnamed confidant is credible upon the bare fact that by giving information he also confessed to having committed a crime.” 283 Md. at 18.

In reliance on the Court’s reasoning in Merrick, we hold that an informant’s credibility cannot be shown solely by declarations against penal interest where the informant has not been identified. We find support for this reasoning from other cases which specifically held that credibility was not shown by unidentified informants’ declarations against penal interest. See State v. Mabrey, 140 Ga. App. 577, 231 S.E.2d 461 (1976); Commonwealth v. Falk, 221 Pa. Super. 43, 290 A.2d 125 (1972). In Mabrey, the court stated, “We fail to see how there can be even an implicit showing of reliability in anonymous admissions of criminality.” In Falk, the court recognized that if the informant is unidentified the magistrate would have no way of knowing if the informant actually feared prosecution at the time of her statéments.

We are not unmindful of cases which have decided that unidentified informants are credible because of declarations against their penal interest. See People v. Glasener, 191 Colo. 114, 550 P.2d 851 (1976); People v. Bolender, 24 Ill. App.3d 804, 322 N.E.2d 624 (1975); State v. Archuleta, 85 N.M. 146, 509 P.2d 1341 (1973); Manley v. Commonwealth, 211 Va. 146, 176 S.E.2d 309 (1970); State v. Crosetto, 73 Wis. 2d 261, 243 N.W.2d 442 (1976). Other cases, in finding that an informant is reliable, specifically mention the identification of the informant is important in finding him to be credible. See United States v. Spach, 518 F.2d 866 (1975); United States v. Principe, 499 F.2d 1135 (1974); People v. Trontell, 188 Colo. 253, 533 P.2d 1124 (1975); Commonwealth v. Fleurant, 2 Mass. App. 250, 311 N.E.2d 86 (1974); Gentry v. State, 562 P.2d 1170 (Okla. Crim. 1977). Also see Comment: An Informant’s Tip as the Basis for Probable Cause: Modified Aguilar Standards, 20 S.D. L.Rev. 363 (1975).

Declarations against penal interest by an informant may be a factor in assessing credibility, but we cannot say that the unidentified informant’s declaration against penal interest alone provides sufficient credibility for showing of probable cause. Any language or holding to the contrary in any of our prior cases is hereby overruled.

It is obvious that the informant did not furnish detailed information, not generally known, which would have supported his credibility. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The only independent police corroboration was that the officer’s investigation revealed (1) that the appellant did live at the address that the informant gave; (2) he had been arrested one time for possession of marijuana; and (3) the telephone was listed to the appellant. We are certain that many people circulating in the criminal underworld were in possession of all the information verified by the police officer. As the veracity of the informant was not shown on the face of the affidavit, more corroboration was necessary than was shown in order to bolster the informant’s credibility.

Although we needed to discuss the lack of detailed information sufficient to show credibility, we do not reach the basis of knowledge requirement of Aguilar v. Texas, supra and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 687 (1969). We will say, however, appellant’s argument on this issue is specious. No more detail is required than that the informant personally purchased heroin from the accused at the location sought to be searched.

Inasmuch as the entire State’s case is based on evidence seized under an invalid search warrant, there is no need to remand the case for a new trial, cf. Hillard v. State, 286 Md. 145 (1979).

Judgment reversed.

Costs are not reallocated as part of the judgment of this Court pursuant to Maryland Rule 1082 F.


text:
    ROBERT WILLIAM SWAIN, JR. v. NANCY DIANN SWAIN
    [No. 83,
    September Term, 1979.]

      Decided October 16, 1979.

    The cause was argued before Thompson, Moylan and MacDaniel, JJ.

      Paul R. Wiesenfeld for appellant.

      Roger K. Bain, with whom were Wheeler & Korpeek on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

This appeal is from the child custody portion of a divorce decree entered on December 15, 1978, by the Circuit Court for Montgomery County. On that date, Robert William Swain, Jr., the appellant, was awarded a divorce a vinculo matrimonii from Nancy Diann Swain, the appellee, based on the appellee’s adultery. The appellee’s Bill of Complaint seeking a divorce a mensa et thoro was denied. Earlier, on December 30,1977, custody of the minor child, Karen L. Swain, had been awarded, pendente lite, to Mrs. Swain. The December 15, 1978, decree awarded permanent custody to Mrs. Swain.

The present case was tried on October 4, 5,6 and December 6, 1978. In his opinion the chancellor stated:

“The evidence in the case establishes with critical clarity that Nancy Swain has committed adultery. This is proven from the evidence and acknowledged by her from the witness stand.
The Court will state at the outset that were it not for the adultery of the mother it would have no difficulty in making a determination that custody of the minor child of the parties should be awarded to the mother. She has had custody of the child from the time of the separation of the parties to the present time except for a period in which, contrary to an Order of this Court by another Judge, custody was taken into his own hands by the father and retained for some two and a half months. It seems quite plain and clear to the Court that the conduct of the mother towards the child has been that of a loving parent. It seems also to the Court that the conduct of the father towards the child has been that of a loving father.... The Court is persuaded that the mother of the child has done nothing to alienate the child from the father. The record seems to justify the conclusion that the Court makes that on the other hand the father has followed a course of action that he coldly calculated, may opt to separate the affection of the child from the mother.
In such circumstances, it would be hard to conclude otherwise than that custody of the child should be given to the mother in the absence of circumstances that would indicate that the welfare of the child would be harmed or would not be benefitted by the granting of custody to the mother.
The single factor that would lead to the possibility that such a condition exists here stems from the circumstance that the mother is living in open adultery, in a continuous fashion with someone since February, 1978....
Both the parties to this attachment have indicated that they propose ultimately to be married. Whether and when, if at all such a union of parties can be accomplished, is of course under the law of Maryland as it exists today a somewhat doubtful thing.
The union of Mrs. Swain and Mr. Impellizeri causes concern also because it appears that although both dislike the description that they were living together for the substantial period of time between February, 1978 and continuing, obviously in the absence of testimony to the contrary up to the present moment, both acknowledged that his presence within the apartment of the mother and where the child resides, it’s frequent during each week, and that his visitation in that apartment, whether he is living there in the sense that they seem to object or not, he is there overnight. He is there when the child goes to bed. He is there when the child arises in the morning.
The question then is when under those facts, the circumstances of the relationship between Mrs. Swain and Mr. Impellizeri justifies the Court or requires the Court or permits the Court to grant custody of the child to Mrs. Swain in the presence of those acknowledged circumstances.”

After summarizing earlier Maryland decisions which discuss the effect of a parent’s adulterous conduct on the award of custody, the chancellor quoted from Davis v. Davis, 280 Md. 119, 127 (1977), U.S. cert. denied, 434 U.S. 939, reh. denied, 434 U.S. 1025:

“ ‘We now explicitly hold what the Pontorno and Neuwiller cases implicitly recognized, i.e., that whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare. We note that this view is in accord with the majority of other courts around the country.’ ”

The chancellor continued in his own words:

“It then becomes the duty of this Court to deal with the factual conditions outlined heretofore in the light of the decision in Davis. The Court concludes that although the possibility exists that as time pursues, if the party, if Mrs. Swain and Mr. Impellizeri maintain the position they presently occupy, the adulterous position they occupy, or at least will continue so long as Mr. Impellizeri remains married to his wife now in Italy, there may indeed be some harmful effect upon this child as time goes on. We cannot however, in the view of this Court, speculate upon such a circumstance or condition because the Court finds that there’s absolutely nothing in relationship at this point in time that mars or stains in any way the life of the child.
In short, the Court believes that the relationship between parties has not at that point been shown to have had a deleterious effect upon the child’s welfare. Accordingly, the Court believes that the adulterous conduct of the mother does not outweigh the circumstances that otherwise would have impelled the Court to grant custody to the mother. Since it does not outweigh those circumstances, the Court will pass a decree awarding custody of the minor child of the parties to the mother.”

The appellant now contends that the chancellor misapplied the law to the facts of this case and abused his discretion in granting permanent custody of the minor child to Mrs. Swain. He argues that the chancellor was clearly erroneous in his failure to conclude that there was substantial detriment to the child from its exposure to the adulterous relationship of the mother. We disagree.

I

In Christman v. O’Connor, 36 Md. App. 263, 270-71 (1977), this Court, citing Davis v. Davis, supra, explained the standards of appellate review applicable to child custody disputes. We said:

“ ‘In sum, we point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 applies. If it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor’s decision should be disturbed only if there has been a clear abuse of discretion.’ (footnote 4 omitted). Davis v. Davis, supra at 125-26.

This has been further explained by the Court of Appeals in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977):

‘The teaching of Davis v. Davis, supra, is plain. The ultimate conclusion as to the custody of a child is within the sound discretion of the chancellor. That conclusion is neither bound by the strictures of the clearly erroneous rule, that rule applying only to factual findings of the chancellor in reaching the conclusion, nor is it a matter of the best judgment of the reviewing court. It is not enough that the appellate court find that the chancellor was merely mistaken in order to set aside the custody award. Rather, the appellate court must determine that the judicial discretion the chancellor exercised was clearly abused. This is the principle which controls the review of any matter within the sound discretion of a trial court as distinguished from a judgment falling squarely within the ambit of the clearly erroneous rule.’ Id. at 186.”

II

With respect to the law applicable to this case, the chancellor correctly relied on Davis v. Davis, supra. That Court said:

“Perhaps in response to the rapid social and moral changes in our society, two of this Court’s most recent cases have implicitly recognized that a finding of adultery per se no longer is a ‘highly persuasive indicium’ of unfitness to have custody of one’s child. In Pontorno v. Pontorno, supra, 257 Md. at 580, 263 A.2d at 822, Judge Finan for the Court, without mention of any presumption of unfitness, stated that ‘a finding of adultery is relevant to the extent that it may affect the welfare of the children.’ And in Neuwiller v. Neuwiller, supra, 257 Md. at 286, 262 A.2d at 737, this Court, again speaking through Judge Finan, held that where adulterous behavior is ‘not determinative of the central issue [as to] who will further the best interests of the child/ an infant may be awarded to a mother despite the fact that there is no showing that she had discontinued her conduct. Cf. Hild v. Hild, 221 Md. 349, 363-64, 157 A.2d 442, 450 (1960) (Hammond, J., dissenting) (adultery should not create presumption of unfitness, but should be weighed by trier of fact in relation to individuals in each case).” 280 Md. at 127.

The Davis Court then stated its holding, quoted in the chancellor’s opinion, supra. The keynote of that holding is that in a custody dispute, the adultery of one of the parents should be considered, along with other factors, “only insofar as it affects the child’s welfare. ” (Emphasis added.)

Ill

In the present case, we hold, initially, that none of the chancellor’s findings of fact are clearly erroneous. Mrs. Swain’s adultery is admitted, and no factual aspects of her adulterous relationship appear to be seriously in dispute. .From these facts, fairly summarized in his opinion, supra, the chancellor was not clearly erroneous in finding that the child had not been adversely affected by the adulterous relationship. We note that the appellant argues that it was possible that the child’s bedroom door was open when the couple “made love.” However, the chancellor properly refrained from engaging in guesswork and surmise as to whether the door actually was open and, if it was, whether the child was aware of what might be going on in the next room.

The appellant’s main argument appears to be that the chancellor erred in matters of law. The appellant contends that “The Court of Appeals has long recognized that exposure to an adulterous relationship inevitably causes detriment to the morals and welfare of a child of impressionable years.” This was not changed by the Davis decision, he argues, which merely took away the strong presumption that an adulterer was an unfit parent. The appellant contends that there still remains a presumption that adultery does have an adverse effect on a child and that this presumed harmful effect must be weighed along with other indicia of parental fitness. He contends, finally, that the chancellor improperly refused to weigh this presumed harmful effect against Mrs. Swain. We entirely disagree.

As we read the Davis opinion, supra, there are now no presumptions whatsoever with respect to the fitness of a parent who has committed, or is committing, adultery. Rather, adultery is relevant only insofar as it actually affects a child’s welfare. We will not presume a harmful effect, and the mere fact of adultery cannot “tip the balance” against a parent in the fitness determination. Thus, a chancellor should weigh, not the adultery itself, but only any actual harmful effect that is supported by the evidence.

A review of the Record Extract in this case convinces us that the chancellor correctly understood and applied the law. He simply found, to the appellant’s displeasure, that there was only a possibility that the child might, at some future time, be harmed by the mother’s adulterous relationship. From the evidence, the chancellor found that the child was not presently adversely so affected.

Finally, we find no abuse of discretion in the chancellor’s decision to award permanent custody of the minor child to Mrs. Swain. The chancellor found that both parents treated the child well. Thus, in light of the fact that he found no adverse effect on the child from the mother’s adultery, we cannot say that the judicial discretion that the chancellor exercised was clearly abused. As the Court of Appeals said in Davis v. Davis, supra, at 132:

“... to disturb the award here would require that we substitute our judgment for that of the chancellor, and an appellate court sits in a much less advantageous position to assure that the child’s welfare is best promoted.”

Decree affirmed.

Costs to be paid by appellant.


author: Weant, J.,

text:
    MERVIN L. BLADES & SON, INC. v. PENINSULA BANK L & H CONSTRUCTION CO., INC. v. PENINSULA BANK
    [No. 32,
    [No. 33,
    September Term, 1979.]
    September Term, 1979.]

      Decided October 17, 1979.

    The cause was argued before Gilbert, C. J., and Lowe and Weant, JJ.

      Thomas C. Beach, III, with whom were Clapp, Somerville, Black & Honemann on the brief, for appellants.

      Alexander G. Jones, with whom were Jones & Jones on the brief, for appellee.
   Weant, J.,

delivered the opinion of the Court.

By an Order of this Court, issued March 21,1979, the cases now before us have been consolidated for purposes of appeal. Each involves a judgment against the same defendants, although for different amounts; each involves the issuance of a Writ of Garnishee-Attachment to the same Garnishee-Appellee, Peninsula Bank, among others, returnable to the first Monday in November, 1978. On October 27, the appellee, in response to each Writ of Attachment, filed a plea entitled “Garnishee Confession of Assets”; each plea was essentially a plea of nulla bona in that the appellee confessed no assets belonging to the defendants. Thereafter, appellant, in each case, filed Interrogatories in Attachment directed to the appellee pursuant to Maryland Rules G56 and 417, which in turn were answered by the appellee. Finally, on December 27, 1978, the appellee filed Motions to Quash Attachment and For Payment of Costs and Attorney’s Fees. These motions requested that in each case the Writ of Attachment be quashed pursuant to Maryland Rule G51, and that attorney’s fees be fixed and costs assessed against the appellant pursuant to Maryland Rule G52d. On February 13, 1979, the Circuit Court for Wicomico County ordered that the Writ of Attachment in each case be quashed and that attorney’s fees in the amount of $250.00 per case be awarded.

On appeal the appellant raises two contentions. First, the circuit court erred in quashing the two writs of attachment since there were no defects in the respective judgments and no jurisdictional problems regarding the garnishee on the pending attachment cases. Second, the circuit court erred in awarding attorney’s fees.

The Order quashing the Writs of Attachment and awarding attorney’s fees must be reversed.

Maryland Rule G51a states:

“A defendant or garnishee may file a motion within the time required by Rule 307 (Time for Defendant’s Initial Pleading) praying that the writ be quashed and set aside, and thereupon the court may order the sheriff to produce the writ and the proceedings thereunder in court.”

Maryland Rule 307a, the provision incorporated into Rule G51a, supra, provides, in pertinent part, as follows:

“The defendant in any action shall file with the clerk his initial pleading within fifteen days after the return day to which he is summoned____”

As a general rule a motion to quash will be determined to have been timely filed if filed within fifteen days after the return day to which defendant has been summoned. Accordingly, in the cases now before us, November 21 was the last day on which the appellee could be said to have filed timely Motions to Quash, unless the bases for such motions are found to fall within an exception to the general rule.

In Cole v. Randall Park Holding Co., 201 Md. 616, 625-26, 95 A. 2d 273, 278 (1953), the Court of Appeals stated

“. . . that a motion to quash on fundamental or jurisdictional grounds can be filed either by the garnishee or by the defendant, after pleas by the garnishee. Campbell v. Morris, 3 H. & McH. 535; Bruce & Fisher v. Cook, 6 G. & J. 346; Stone v. Magruder, 10 G. & J. 383-387; Boarman v. Israel & Patterson, 1 Gill 372; Lambden v. Bowie, 2 Md. 334; Spear v. Griffin, 23 Md. 418-30; Evesson v. Selby, 32 Md. 340; Powhatan Steam Co. v. Potomac Co., 36 Md. 238 and the companion case, Potomac Steamboat Co. v. Clyde, 51 Md. 174; Cromwell v. Royal Canadian Ins. Co., 49 Md. 366; Coward v. Dillinger, supra (56 Md. 59); Johnson v. Stockham, 89 Md. 368, 43 A. 943; U. S. Express Co. v. Hurlock, supra (120 Md. 107, 87 A. 834); Indemnity Co. v. Cosgriff, 144 Md. 660, 125 A. 529; First National Bank of Federalsburg v. Equitable Life Assurance Society, 157 Md. 249, 145 A. 779. The holdings are summarized aptly by Hodge & McLane on Attachment in Maryland, Sec. 94: ‘A motion to quash is a proceeding in the nature of a petition to the Court, without an appearance to the merits of the case, to dismiss the attachment on the ground that the proceedings are defective. The defects, upon which the motion is based, may be either apparent upon, or dehors the proceedings.
* * * A motion to quash an attachment for a substantial defect in the proceedings, goes to the question of jurisdiction and will be entertained at any stage of the trial. Ordinarily the motion should be made by the garnishee before appearance and pleading, because, if successful, it puts an end to the case; but it may be filed at any stage of the cause, although the garnishee has pleaded and issue is joined, and even after he has confessed assets and expressed his willingness to abide by the order of the court.’ See also Sec. 95; Poe, Pleading and Practice, Tiffany Ed. Sec. 539 is to the same effect. See, too, Downs v. Baltimore City, 111 Md. 674, 689,76 A. 871, 41 L. R. A., N.S., 255; and Bauernschmidt v. Safe Deposit and Trust Co., 176 Md. 351, 356, 4 A. 2d 712.”

This statement indicates that where a motion to quash is based on fundamental or jurisdictional grounds, it will be entertained at any stage of the trial. It becomes necessary, therefore, to determine whether the appellee’s Motions to Quash, filed December 27, fall within an exception outlined in Cole, supra.

Appellant correctly points out that the appellee’s Motions to Quash neither allege the existence of any defects in the proceedings nor question the jurisdiction of the court. Appellee argues that its Motions, nevertheless, fall within an exception delineated in Cole. To support its contention, the appellee points to the language in Cole, where the Court stated “that a motion to quash on fundamental or jurisdictional grounds can be filed ... after pleas by the garnishee.” Id. at 625, 95 A. 2d at 278. Appellee would have us affirm the circuit court’s decision based on its (appellee’s) interpretation of the phrase “fundamental ... grounds.” In interpreting this phrase during oral argument, appellee cited Cole where it stated: “In essence, attachment and garnishment is an action by the defendant against the garnishee for the use of the plaintiff. For this reason the rights of the plaintiff can never rise above those of the defendant.” Id. at 623-24, 95 A. 2d at 277. Appellee further argues that because it held no assets of the defendants, the appellant had no claim against it and that, therefore, the Motions to Quash the Attachments were properly granted. It seems that appellee, in relying on this portion of the Cole Court’s opinion, failed to take note of the Court’s very next statement which reads: “If the defendant could not sue the garnishee in the courts of the State in which the attachment is filed, the plaintiff cannot do so.” Id. at 624, 95 A. 2d at 277. This statement clearly indicates that the Cole Court was addressing the consequences which follow from the existence of a jurisdictional defect. As we have already noted, the appellee, in its Motions to Quash, did not allege the existence of any defects in the proceedings and did not question the jurisdiction of the court. We think that the motion was not available to the appellee in the cases now before us. Therefore, we conclude that the circuit court erred in granting the appellee’s Motions to Quash the Writs of Attachment.

Because the Order quashing the Writs of Attachment was error and because the Motions for Payment of Costs and Attorney’s fees were contained in and apparently follow from the Motions to Quash the Writs, the circuit court further erred in awarding attorney’s fees. In passing, we note that we would nonetheless question the propriety of awarding attorney’s fees in the amount granted where it was argued that it was not the attorney but the garnishee-bank that was subjected to time-consuming expense and cost in a matter in which it allegedly had no interest.

Judgments reversed.

Costs to be paid by appellee.