author: Lowe, J.,

text:
    STATE DEPARTMENT OF ASSESSMENTS AND TAXATION et al. v. FITZHUGH T. CLARK et al.
    [No. 272,
    September Term, 1976.]

      Decided December 7, 1976.

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

      Ward B. Coe, III, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellants State Department of Assessments and Taxation, Supervisor of Assessments for Montgomery County and Property Tax Assessment Appeal Board. H. Christopher Malone, Assistant County Attorney for Montgomery County, with whom were Richard S. McKemon, County Attorney, and Robert G. Tobin, Jr., Deputy County Attorney, on the brief, for appellant Director of Finance for Montgomery County, Maryland.

      Murray L. Deutchman, with whom were Bullard & Deutchman, P.A. on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Background

In establishing tax rates on real property, government must first have determined the assessed value of the property it may tax. This presupposes a cutoff date after which the valuation will remain fixed for purposes of the succeeding taxable year. That cutoff date, statutorily designated “the date of finality”, is at the root of the issue appealed here. The tax statute, Md. Code, Art. 81, designates this “date of finality” as the 1st day of January preceding the tax year. Art. 81, § 2 (20), § 29A. Procedural protection is provided a dissatisfied taxpayer by first requiring that notice of assessment be given to him. He is then given an opportunity and a time within which he may protest the assessment to the Supervisor of Assessments (from whom it originally emanated). Art. 81, § 29 (a). In the event of further dissatisfaction, he may protest to the local Property Tax Assessment Appeal Board and, beyond that, to the Maryland Tax Court. Art. 81, § 255. Limited review of the Maryland Tax Court’s judgment is available in the circuit courts. These courts may not second-guess the assessment, but may determine only whether it was supported by substantial evidence on the record or was erroneous as a matter of law. See American Oil Co. v. Bd. of Appeals, 270 Md. 301, 310-311; Ch. 338, Laws of 1976. These statutory remedies are exclusive, see Tanner v. McKeldin, 202 Md. 569, 577, and one who does not avail himself of them is generally bound by the assessment as of the date of finality, with but preciously limited relief.

Recognizing that absolute adherence to an inflexible date of finality may cause injustice to both taxpayer and State, the legislature specifically provided for a reassessment when property is subdivided or when the property’s character or use is changed after the date of finality (January 1st) but before the semi-annual date of finality (July 1st). Art. 81, § 19 (a). Furthermore, for property damaged or destroyed, after the date of finality but before the semi-annual date, by fire or any other event which should cause the property to be removed from the tax rolls, Art. 81, § 31 (f) (2) alleviates taxes for the last 6 months of the taxable year and provides for refund if taxes have already been fully paid. Aside from these particular provisions, however, there is no statutory right to relief from an assessment for the taxable year after the date of finality. The taxpayer is of course free to apply for reassessment of the property prior to the next date of finality for the ensuing tax year and comply with the protest requirements thereafter.

Undoubtedly recognizing that even these specific exceptions still left possibilities of unforeseeable injustice, the legislature enacted Ch. 732, Laws of 1949, declaring it to be an emergency measure. It is currently codified as Art. 81, § 67. At the time this litigation arose, that section read as follows:

“The county commissioners in each county, the chief administrative officer in Montgomery County, and the department of assessments in Baltimore City, as to local taxes, and the Comptroller upon certificates of the county commissioners, the chief administrative officer in Montgomery County, or department of assessments in Baltimore City, as to State taxes, shall make all just allowances to the respective collectors for insolvencies and .removals and for refunds of taxes made in accordance with the provisions of law. The final assessing authority, the supervisor of assessments and the county treasurer (in Montgomery County the director of finance) of each county and in Baltimore City, the city solicitor, and the director of the department of assessments, and in any incorporated town in Caroline County, the town boards, may by an order, decrease or abate an assessment after the date of finality for any year, whether a protest against said assessment was filed before the date of finality or not, in order to correct erroneous and improper assessments and to prevent injustice, provided, that the reasons for such decrease or abatement shall be clearly set forth in such order.”

Appellees’ dissatisfaction with the way in which relief was granted under this section prompted the litigation below.

Facts

Appellees own a five-and-one-half acre parcel of land located at the intersection of Muddy Branch Road and Interstate 70S (now 270) in Montgomery County. Upon their initiative, the property was rezoned on August 25,1970 from rural-residential to multiple family, medium density residential. As a result of that rezoning they were notified on December 10,1971, pursuant to Md. Code, Art. 81, § 29, that their land assessment was increased from the previous year’s (1971) $12,640 assessment to $132,150 for the prospective year (1972). Agreeing that the rezoning had substantially enhanced the value of their land, appellants did not protest or appeal the assessment within the time provided by Md. Code, Art. 81, § 255. On January 1, 1972, therefore, the assessment became final.

In May 1972 a sewer moratorium, which had the effect of preventing sewer extensions and attachments to appellants’ land, was proclaimed by the Washington Suburban Sanitary Commission. The foundation for the increased assessment was thus denied realization, at least temporarily.

On August 29, 1972, appellees wrote to the Supervisor of Assessments requesting “reassessment of the property to be effective for the next 6 month period” in view of the cloacal restrictions. Because the legislature had not provided for reassessments within the taxable year following the date of finality, the Supervisor treated the request as a petition under Art. 81, § 67, the only statutory relief after the date of finality. That section, as indicated, authorizes the decrease or abatement of an assessment after the date of finality “in order to correct erroneous or improper assessments and to prevent injustice. . . .” The relief may be granted whether a protest against the assessment was filed before the date of finality or not; however, it may only be granted by the joint action of three officials — the final assessing authority, the Supervisor of Assessments and the County Treasurer (or in Montgomery County, the Director of Finance).

Recommending a reduction from $132,150 to $99,110, the Supervisor forwarded the matter to the Appeal Tax Court for Montgomery County. After holding a hearing, during which appellees were afforded the opportunity to present evidence and argue their position, the Appeal Tax Court issued a memorandum and order authorizing the reduction recommended by the Supervisor. The order was forwarded to the Director of Finance, and he approved it on February 23, 1973. The Appeal Tax Court then notified appellees, by letter dated March 7,1973, that an order had been entered in their case reducing the land assessment from $132,150 to $99,110 for the taxable year 1972. Appellees filed a petition of appeal to the Maryland Tax Court on April 9, 1973 and, on April 11, 1973, brought a “declaratory action” in the Circuit Court for Montgomery County. They sought:

1. to enjoin the collection of taxes levied without providing a rehearing on the question of the value of their property as affected by the sewer moratorium; and,
2. to declare Md. Code, Art. 81, § 67 unconstitutional as applied to them on the grounds that it violated appellants’ rights to equal protection of the laws, due process, “and amounts to a taking without just compensation.”

Following the customary procedural skirmishing during which both sides sought discovery and filed motions for summary judgment, the circuit court ruled that it had jurisdiction, that the amount of the reduction had been reached arbitrarily and that the matter was not moot because appellees had already paid the tax, albeit in escrow. The court denied appellants’ motions and granted appellees’ motion to the extent of remanding the case to the Supervisor of Assessments, Director of Finance, and Property Tax Assessment Appeal Board for further proceedings. Although not reaching the constitutional question, the trial judge filed a well written and convincingly reasoned opinion that lacked excellence primarily in that it was wrong. The issues therein abiding were three: jurisdiction, arbitrariness of proceeding, and right to refund; but the greatest of these was jurisdiction. The State Department of Assessments and Taxation, the Supervisor of Assessments for Montgomery County, the Property Tax Assessment Appeal Board and the Director of Finance for Montgomery County have appealed.

Jurisdiction

Appellants contend that by its very language § 67 is a creature of legislative grace and provides no entitlement to relief. They rely primarily upon LaBelle v. State Tax Comm., 217 Md. 443, cert. den. 358 U. S. 889. The question involved there was:

“... whether the State Tax Commission had jurisdiction to hear an appeal by the property owner from the refusal of the taxing authorities of Montgomery County to reduce an assessment that had become final before they were asked to act.” Id. at 446-447.

Mrs. LaBelle had failed to avail herself of the protest requirements within the prescribed time. There, as here, her belated protest was treated as a petition for relief under § 67 (then § 66) of Art. 81. However, Mrs. LaBelle received no relief (although the Appeal Tax Court had proposed a reduction) because neither the Supervisor of Assessments nor the Director of Finance of Montgomery County concurred in the proposed reduction. She appealed from the circuit court’s ruling that the State Tax Commission had no jurisdiction to hear an appeal from the denial of relief under § 67. The Court of Appeals affirmed. It held that § 67 was a “matter of grace and not a matter of right.” The Court noted that the taxpayer can appeal to the State Tax Commission as a matter of right only if he follows the steps prescribed by statutes:

“If, however, he permits an assessment to become final, he can only hope that the three taxing and fiscal authorities who are named in Sec. 66 [now § 67] of Art. 81 will agree that his cause is just and demands relief. If they do not, the statute gives him no further remedy and the assessment that has been allowed to become final remains on the books for the year in question. The powers of the State Tax Commission are entirely statutory and the statutes confer jurisdiction on it only if an assessment is protested before it has become final.” 217 Md. at 452.

Appellants point out that the LaBelle result and its reasoning were affirmed by the Court of Appeals as recently as June 26,1975, in Mont. Co. Council v. Supervisor, 275 Md. 339. They argued that that case comes even “closer to home”, for it was generated by the 25% reduction of assessments of nineteen property owners in Montgomery County, due to the sewer moratorium. As in LaBelle, the basic question related to jurisdiction to hear an appeal from a § 67 proceeding. Noting that the State Tax Commission was the predecessor of the Maryland Tax Court and that the legislature had not expanded the jurisdiction of the Tax Court, Judge Eldridge, writing for the Court in Mont. Co. Council, held that LaBelle controlled the question of the Maryland Tax Court’s jurisdiction to hear appeals from § 67, regardless of whether relief was granted or denied:

“However, this Court’s decision in LaBelle was based upon the ‘jurisdiction’ of the State Tax Commission [now the Maryland Tax Court] over § 67 proceedings and not upon the standing of particular parties depending upon the nature of their interest in the § 67 proceeding. While the Court explained that the purpose of a § 67 proceeding was to grant or deny relief to the taxpayer as a matter of ‘grace’ instead of as a matter of right, nothing in the Court’s opinion indicated that the State Tax Commission’s power to review § 67 determinations depended upon whether the taxpayer had won or lost in the § 67 proceedings. Instead, the Court held that the statutes confer ‘jurisdiction on it [the State Tax Commission] only if an assessment is protested before it has become final.’ ” 275 Md. at 344.

Although these cases appear dispositive at first blush, the trial judge below perceived that a more fundamental right of appeal exists than that provided by statutes or administrative regulations. Relying upon Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, he held that the circuit court had jurisdiction to review the appellants’ actions because of its inherent power to correct abuses of discretion and arbitrary, illegal, capricious or unreasonable acts. He held that the Mont. Co. Council case and LaBelle, upon which it rested, presented no problem:

“ ... because the matter now before this Court is not a statutory appeal but an invocation of the court’s inherent powers of judicial review and the Gould case would appear to be completely controlling.”

We fully agree. In a scholarly analysis, the late Judge William O’Donnell pointed out in Gould that neither the absence of a defined jurisdictional authority nor the express abrogation thereof by the legislature can deprive litigants of the right to raise questions involving their fundamental rights in an appropriate judicial forum. Likewise, the courts cannot be deprived of the right to decide such questions in an appropriate proceeding:

“Chief Judge Hammond, who delivered the majority opinion in Insurance Comm’r v. National Bureau of Casualty Underwriters, supra, [248 Md. 292] stated:
‘The courts have been alert to exercise their residual power to restrain improper exercises of administrative powers whether judicial or legislative in nature. If the legislature has not expressly provided for judicial review, a court will ordinarily utilize its inherent powers to prevent illegal, unreasonable, arbitrary or capricious administrative action. In Heaps v. Cobb, 185 Md. 372, 379, this Court said: ‘The legislature is without authority to divest the judicial branch of the government of its inherent power to review actions of administrative boards shown to be arbitrary, illegal or capricious, and to impair personal or property rights; * * *,’ and then quoted the opinion in Hecht v. Crook, 184 Md. 271, 280:
‘Courts have the inherent power, through the writ of mandamus, by injunction, or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion * * * ”
248 Md. at 300, 236 A. 2d at 286.”
Gould, 273 Md. at 501-502. See also Schneider v. Pullen, 198 Md. 64, 68-69.

The message of Gould is clear. A legislature may not circumvent the system of checks and balances which guarantee that no branch of government, however designated, may be granted an untrammelled right arbitrarily to grant or withhold that which is derived from the people, be it due as a matter of right, sought as an aspiration, or bestowed as largess. A democracy does not recognize such monarchical discretion.

Entitlement

Appellants attempt to distinguish Gould by noting that the petitioner there had established his entitlement to relief under the Criminal Injury Compensation Act which, although provided by the General Assembly as a matter of the State’s moral responsibility, sets forth what persons shall be eligible. Md. Code, Art. 26A, § 5 (a). Appellants argue that, by contrast, § 67 exists as a matter of legislative grace and prescribes neither positive duty nor discernible standard of relief. Appellants contend that because appellees have voluntarily foregone their entitlement to review of their assessment by not protesting it before the date of finality, they can claim no entitlement under § 67.

This argument was apparently inspired by a law review interpretation of Gould which read into that opinion an “entitlement” prerequisite to review under the court’s inherent powers:

“If the Board had denied Gould’s claim for compensation because it found that Gould was not the victim of a crime but a participant in it and Gould had claimed that this finding was not supported by substantial evidence on the record as a whole, the Gould Court plainly would not have reviewed the evidence because Gould limited its holding on the availability of judicial review to claimants whose eligibility as a crime victim under Section 5 of the Act had already been established.... However, the Court in Gould did determine that Gould possessed a sufficient personal right once he met the eligibility requirements of a crime victim. At that point his claim for compensation was transformed into a right protected by the Court’s inherent power to review administrative actions for arbitrariness.” Tomlinson, Constitutional Limits on the Decisional Powers of Courts and Administrative Agencies in Maryland, 35 Md. L. Rev. 414, 424 (1976).

While noting that neither Judge O’Donnell nor the Court of Appeals added the “entitlement” impediment to the exercise of a court’s inherent power, we find it unnecessary to decide that academic argument. By virtue of the tripartite agreement of the three parties provided by § 67, appellees were granted relief. Appellants’ act presupposes appellees’ “entitlement”. Thus, the Court need not address that issue even if it is a condition precedent to relief under the trial court’s inherent power. As Professor Tomlinson wrote:

“At that point his claim for compensation was transformed into a right protected by the Court’s inherent power to review administrative actions for arbitrariness.” Id. at 424.

Indeed, to review or second-guess that factual determination of “entitlement” by the administrators involved, when to that extent their decision is not alleged to be arbitrary, is to exceed the scope of the inherent power of review.

We have pointed out that to invoke a court’s inherent power of review in the absence of a statutory right, a petitioner must assert arbitrary, illegal, capricious or unreasonable acts such as constitute a breach of the exercise of discretion under the statute. See Gould, supra, at 513. But we hasten to add that while the circuit court is vested with jurisdiction upon such allegations, it may not be exercised for a petitioner’s benefit unless he can carry the heavy burden of proving such arbitrariness. In the exercise of the court’s inherent power, care must be taken not to interfere with the legislative prerogative, or the exercise of sound administrative discretion. See Hecht v. Crook, 184 Md. 271, 280-281.

Appellees’ Summary Judgment

Both sides moved for summary judgment. The appellants contended that there were only two issues to be resolved:

“1. The remedies provided by Article 81 for the contest of property assessments are exclusive, and therefore, the Petition should be dismissed.
2. Even assuming for purposes of argument that this Court has jurisdiction over this matter, the undisputed facts clearly and conclusively demonstrate that there has been no unconstitutional action.” (emphasis added).

In a combined document both moving for summary judgment and opposing appellants’ motion, appellees raised five issues. In short, these were:

1. The trial court had jurisdiction under the inherent power doctrine of Gould.
2. Appellants’ actions under § 67 were arbitrary, capricious and illegal.
3. The combined sewer moratorium and assessment procedure amounted to an unconstitutional taking.
4. The sewer moratorium caused appellees’ property to be “damaged” property under Art. 81, § 31(f).
5. The Director of Finance was authorized to “refund” taxes although they had already been paid.

After holding that the court had jurisdiction under the inherent powers doctrine, the trial judge denied appellants’ motion for summary judgment and granted appellees’. He reasoned that:

“In Heaps v. Cobb the Court of Appeals succinctly and clearly defined arbitrary action:
‘The decision of this appeal depends on whether or not (1) on the undisputed facts the appellee was entitled under the ordinance to the pension claimed, and (2) the appellant’s refusal of the pension amounted to ‘arbitrary’ action — that is to say, was without any supporting evidence. As stated by the Supreme Court in the Chicago Junction Case, (citation omitted), ‘To refuse to consider evidence introduced or to make an essential finding without supporting evidence is arbitrary action’ ’. Id. at 378.
Applying this standard, this Court finds that there are at least two instances of arbitrary action in this proceeding. The first and most obvious was the recommendation of the flat 25% reduction by the Supervisor of Assessments, which was adopted by the other two agencies without considering any evidence relating to the specific facts of the Clark case. The other arbitrary action was the selection of the 25% reduction figure. If the defendants in this action had been able to prove that the 25% reduction was arrived at by a careful survey of all the property affected by the sewer moratorium and represented some average figure pertaining to decreases in property value, then the use of this figure might survive the scrutiny of this Court. Such is not the case. The 25% figure was arrived at in a totally arbitrary manner, as demonstrated by the following passage from a memorandum dated November 16, 1971 from Garner V. Duvall, Supervisor of Assessments, to the Appeal Tax Court. This letter was an addendum to the motion for summary judgment filed by the Attorney General.
‘... (T)his office has finally come to the conclusion that a fair and reasonable allowance for the sewer moratorium should be a maximum of 25%.
This percentage takes into consideration that the moratorium may last for a period of three (3) years and using an 8% annual interest rate over the three-year period would be reasonable consideration in our judgment to arrive at an overall allowance of 25%. Therefore, you may want to reconsider your decision on the subject case.’
Of the two multipliers involved in arriving at the 25% figure, it is obvious that both were arrived at without any basis in fact, especially the 8% representing ‘interest’. Presumably this is based on the income one would receive from a bank account per annum, [] but the connection between such an interest rate and the sewer moratorium’s effects on property in Montgomery County is totally undemonstrated. The three year estimated duration of the sewer moratorium was also arbitrarily determined because it was based on no more than an educated guess as to how long the moratorium would be in effect.
While holding that the assessing authorities acted arbitrarily in arriving at the 25% abatement in this case, this Court is not saying that the 25% figure was per se unreasonable and must be either increased or decreased in any subsequent reconsideration of this matter but simply that there must be some basis in fact for any reduction ordered under Section 67 and that the determination must be made on a case by case basis, not by means of an arbitrary across the board figure.”

It is here that the trial judge went astray. Assuming that the 25% figure conveyed by the Supervisor of Assessments to the Appeal Tax Court did carry on its face indicia of arbitrariness (which the court first asserts, then denies), such evidence would serve only to deny appellants ’ motion for summary judgment. It was not sufficient of itself to grant appellees’ motion.

The letter the trial judge relied upon was simply a starting point in the § 67 process on prior cases of hardship caused by the sewer moratorium. It was issued by the Supervisor of Assessments after his analysis as an expert to establish a juncture from which the Appeal Tax Court could proceed, as the hearing authority. That is indicated by the date of the letter (9 months prior to appellees’ protest) and by the language of the letter preceding the portion the trial judge quoted:

“ ... we wish to call to the Court’s attention that after reviewing a number of situations similar to the subject, this office has finally come to the conclusion that a fair and reasonable allowance for the sewer moratorium should be a maximum 25%.” (emphasis added).

Testimony deposed by appellees from the former Chief Judge of the Appeal Tax Court showed that the 25% figure represented a uniform policy established to avoid further disparity of opinion even among experts. But uniformity and arbitrariness are not synonymous:

“Let me describe it this way, and maybe this will answer your question.
In the beginning, of course the existence of the sewer moratorium was novel and unusal [sic] and it created different reactions on the part of different people. My recollection is that in the very beginning the concurrence that might come from the Supervisor of Assessments, came, depending on whom the individual assessor was.
Some assessors thought differently than others in regards to whether the sewer moratorium had any effect upon the value of property, and if it did, to what extent it should affect the property.
Later on, the Supervisor of Assessments formulated the uniform policy in connection with sewer moratorium cases. We knew after the time that that uniform policy was announced to us and began to be implemented that if the Tax Court felt greater relief was necessary or warranted, that it would not be concurred in if it went beyond the figure of 25 percent.”

We do not think that the letter from the Supervisor is conclusive evidence upon which the trial court could base its holding that, as a matter of law, the “25% figure was arrived at in a totally arbitrary manner.” To the contrary, it appears that the assessing expert who wrote the memo had reviewed similar situations, looked into the time prospects of the sewer moratorium, and utilized an interest factor 2 percent above the maximum legal rate of interest in Maryland as set forth in Md. Code, Art. 49, § 3 (and equal to the maximum allowed “under an agreement in writing between the lender and borrower”). We hold, therefore, that the trial judge erred when he held that appellees met the heavy burden they assumed by claiming, on their motion for summary judgment, that appellants’ actions were arbitrary as a matter of law because they allegedly pulled the 25% figure from the air.

We also find that the trial judge erred factually, and erroneously relied upon a factual prerequisite not compelled by either statute or due process when he determined that the recommendation of the Supervisor:

“.. . was adopted by the other two agencies without considering any evidence relating to the specific facts of the Clark case.”

Nor do we find the quotation upon which he relied from Heaps v. Cobb, supra, apposite here, i.e.:

“ ‘To refuse to consider evidence introduced or to make an essential finding without supporting evidence is arbitrary action.’ ”

Factually, appellees expressly admitted in response to appellants’ demands for admissions, that they were afforded a hearing before the Appeal Tax Court on February 13,1973, that one of appellees was present with counsel, that they were afforded the opportunity to present evidence, testimony and argument, and that they availed themselves of this opportunity but provided no expert evidence to counter the recommendation of the Field Supervisor that the assessment be reduced from $132,150 to $99,110. They also acknowledged receiving a copy of the Field Supervisor’s memorandum to the Appeal Tax Court recommending the reduction, the last sentence of which indicates that he had given some degree of special attention on review to appellants.

The judge’s assumption that a tripartite hearing was required was equally misplaced. Sec. 67 is a hybrid statute created to apply to unforeseeable circumstances. Each party whose approval is required before relief can be granted under this section has a part to play related to his particular governmental role, and we find the procedure adopted in Montgomery County to be a reasonable procedural application of the statute. Since the legislature prescribed no procedure, the instant one is not the only conceivable means of dispensing discretionary relief, but it is an acceptable and reasonable one.

Considering the highly responsible and time consuming roles of Supervisor of Assessments and Director of Finance, it is inconceivable that the legislature intended that they hold hearings for every case brought to their attention under § 67. While each of these officers is concerned with alleviating injustice, each has his particular watchdog role to fulfill. The Assessor looks to his assessment, the Director watches over his budget and the Appeal Tax Court (or Property Tax Assessment Appeal Board) provides procedural due process protection to the taxpayer by public hearing.

The Supervisor of Assessments has the expertise to diagnose, and his access to special knowledge of the case provides a unique posture from which to recommend a prescription.

The purpose of “an appeal tax court” is apparent from the connotation given it by the statute authorizing its creation, Ch. 466, Laws of 1969, as well as that of its successor which calls for “a property tax assessment appeal board”. See Ch. 784, Laws of 1973. Its very raison d’etre is to hear tax appeals related to real property assessments. See, e.g., Art. 81, § 255 (b). Little imagination is required to perceive its role in the § 67 triumvirate.

Finally, the logical reason the legislature would require approval by the Director of Finance (or county treasurer) would be to establish an assurance that prospective abatements would not unduly affect the financial stability of the county. The requirement for his approval stands in the posture of a veto power.

We hold that the trial judge, having overlooked the Tax Appeal Court’s hearing, also erred by holding, on appellees’ motion for summary judgment, that the absence of a hearing by the Assessor and Director was arbitrary as a matter of law. We therefore reverse the judgment summarily granted in favor of appellees on the issue of arbitrariness.

Appellants’ Motion for Summary Judgment

The denial of appellants’ motion for summary judgment, which we also vacate, is another matter. Appellants were clearly wrong as to their first issue relating to jurisdiction and, to that extent, the court’s denial was correct. However, their second contention that:

"... the undisputed facts clearly and conclusively demonstrate that there has been no unconstitutional action.”,

was not decided by the court below and is one of the issues which must be decided upon remand. Md. Rule 1085.

Upon remand the trial court must still face the limited constitutional issue raised in both motions for summary judgment (raised in appellants’ motion as issue number 2 and in appellees’ motion as issue III) which, in the absence of submission by the parties, we are proscribed by Md. Rule 1085 from considering on appeal. See Montagna v. Marston, 24 Md. App. 354, 362. We also note that appellants’ issue IV was not mentioned by the court and should be met upon remand.

The refund issue, argued here and decided below, has become premature for us to answer in light of appellees’ questionable entitlement. We note in bypassing that issue, however, that it would be incongruous for the legislature to provide for relief under § 67, and not to have anticipated that some authority to refund existed. See, e.g., Art. 81, § 214(c).

In making the determinations that were left open by virtue of his rulings on summary judgment, the trial judge may compel such assistance from the parties by brief, argument or otherwise as he may require for a proper consideration of the pending questions. Montagna, supra, at 362.

Case remanded, pursuant to Md. Rule 1071.

Costs to be divided equally among all parties.

      . At the time the facts giving rise to this litigation occurred, Art. 81, §§ 229 (i) and (1) provided for appeal from the Maryland Tax Court to the Court of Appeals. Ch. 385, Laws of 1971. By Ch. 448, Laws of 1975, the statute was amended to provide, instead, for appeal to the Court of Special Appeals. In Shell Oil Co. v. Supervisor, 276 Md. 36, the Court of Appeals declared the statute unconstitutional insofar as it allowed either appellate court to review directly the judgment of the Maryland Tax Court. Ch. 338, Laws of 1976 now allows a dissatisfied taxpayer to appeal to a circuit court for a county or the Baltimore City Court, from the Maryland Tax Court.

      . A subsequent amendment to § 67 left this language intact.

      . The Appeal Tax Court was authorized in each county by Ch. 466, Laws of 1969. These bodies were made mandatory in each county (and Baltimore City) by Ch. 784, Laws of 1973, and designated Property Tax Assessment Appeal Boards. Neither party disputes that under either name it constitutes the “final assessing authority”.

      . The Maryland Tax Court dismissed the appeal by order of August 21, 1974. The order was appealed to the Maryland Court of Appeals, but the appeal was dismissed on August 1, 1975, presumably as a result of the jurisdictional ruling in Mont. Co. Council v. Supervisor, 275 Md. 339, decided on June 26, 1975.

      . See also 57 Op. Att’y Gen. 676, 677.

      . Appellants argued that they were not seeking relief as a matter of grace, but were attempting to prevent an unwarranted reduction of assessments as the elected representatives of the people. 275 Md. at 344.

      . We note that no constitutional question has been raised by any of the parties questioning the right of the legislature to delegate an uncontrolled discretionary authority. Relying on the precedential silence of the Court of Appeals on that issue in both LaBelle and in Mont. Co. Council v. Supervisor, and because the parties here assiduously avoided that issue, so wifi we.

      . Appellants’ reliance on Professor Tomlinson’s interpretation of Gould is misleading. The sentence following the above quote is:
      “It appears, therefore, that the factual question of a person’s eligibility for compensation could constitutionally be left to the Board subject to no judicial review whatsoever or at most to judicial review under an arbitrariness/no evidence standard.” Id. at 424.
      It is, therefore, quite clear that Professor Tomlinson recognizes the possibility that judicial review may be had, regardless of “entitlement”, if the administrative action is arbitrary.

      . Apparently, the court was taking judicial notice of an economic fact of life peculiar — if correct — to Montgomery County. We question both the fact and the right of the court to take judicial notice of it.

      . Now found in Commercial Law, §§ 12-102,12-103(a).

      .
      “MEMORANDUM
      September 1,1972
      TO: Appeal Tax Court
      FROM: William E. Gartner, Sr., CAE, Field Supervisor W.E.G. Sr.
      SUBJECT: F. T. & G. J. Clark, RFD 2, Boyertown, Pa.;
      9-01-769020,5.61 Ac. Plat 8491;
      Par A Hgwy Interchange
      Land $132,150 Imps. $7600 Total $139,750
      We wish to call to the attention of the Court the following information concerning subject account:
      As the result of a letter dated July 17, 1972, from the Washington Suburban Sanitary Commission we recommend that the land assessment be reduced on the above referenced property from $132,150 to $99,110, with no change in the improvement assessment. This request is due to the sewer moratorium and should be effective with the 1972 levy year.
      Since this office does not have the authority to change the assessment at this time, we are referring the matter to your Court for consideration and appropriate action under Section 67, Article 81, of the Maryland Code.
      Enclosed is a photocopy of the worksheet and a letter from the Washington Suburban Sanitary Commission.
      WEG:cs
      Enclosures”

      . We note under the latter portion of that rule that it may be “desirable for the guidance of the court” if we suggest that the trial court again review all the evidence before it to determine if there is any evidence of arbitrariness favorable to appellees. We have indicated that the trial judge stated:
      “ ... that the 25% figure was [not] per se unreasonable....”,
      and we do not disagree. We have pointed out the error in his opinion that all three agencies must consider the evidence relating to the specific facts of the Clark case. Neither the judge nor the appellees have pointed to anything indicating that the triumvirate made “... an essential finding without supporting evidence ..which the Court in Heaps v. Cobb, 185 Md. at 878, noted was indicative of arbitrariness. To the contrary, the testimony deposed by appellees themselves appears to provide some supporting evidence that the figure was not arrived at arbitrarily.
      For example, in addition to the testimony by the former Chief Judge of the Appeal Tax Court partially set forth in the body of the opinion, appellees also deposed a former supervisor in the assessment office of Montgomery County, who testified among other things that:
      “As I say, it was generally a practice, this 25 percent would represent approximately the amount of money or cost to install sewer line in front of the property.
      Let's put it another way.
      The presence of the sewer, or the absence of the sewer, would make approximately a 25 percent difference in its value.”
      That alone is some supportive evidence of an expert nature indicating that the 25% figure was not arbitrarily reached.
      The trial judge may recall that he may grant partial summary judgment, Md. Rule 610 a 1, in favor of appellants based upon the arbitrariness issue, although it was raised in appellees’ motion. Md. Rule 610 d 1.

      . Md. Rule 1075 c states:
      “If a judgment or part of a judgment is reversed and the case remanded for a new trial, the parties may by agreement in writing filed with the Clerk submit the case to this Court for final adjudication and judgment upon the facts set forth in the record. Upon such submission by the parties, this Court will pass upon all questions of fact and of law arising in the case and enter final judgment thereon.”


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    FLOYD EATON v. JOAN EATON
    [No. 279,
    September Term, 1976.]

      Decided December 7, 1976.

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

      Charles A. Carlton, with whom were Lynch & Carlton on the brief, for appellant.

      S. Allan Adelman, with whom were Lambert, Furlow, Elmore & Heidenberger on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

We affirm a decree of the Circuit Court for Montgomery County declaring a property agreement between a husband and wife invalid for the reasons given by the trial judge, Plummer M. Shearin, in the following opinion:

“Upon the evidence adduced at hearing herein, the Court makes the following findings of fact:
“1. The parties hereto were married on April 29, 1963. At that time, plaintiff-wife was 28 years of age and the mother of two children, then 4 and 6-1/2 years of age, respectively. She had been married twice previously, the first marriage having been annulled and the second terminated by divorce. Although divorced for about 3 years prior to meeting and (within a month) marrying defendant, neither she nor the children received any support from their father because ‘he never worked’.
“2. At the time of the marriage, defendant was 42 years of age, a widower for 2 years, the father of a 20-year-old son, the operator of an established refrigeration business (which he had purchased in 1952 for $15,500.) and owned real properties of substantial value.
“3. Less than a year after the marriage, defendant became concerned about the possibility of separation and divorce. He testified that the parties had frequent disputes, mainly about the children; that he was not allowed to correct them although they ‘tore up his house’; that plaintiff ‘kept taking the car and going out at night, leaving him to care for her children’; and that, to prevent this, he took some wires from the car, so it wouldn’t run, and locked them in a bedroom. In retaliation, plaintiff used a hatchet to chop open the bedroom door.
“4. Defendant instructed his then attorney to prepare a ‘Property Settlement Agreement’, which was ultimately executed by the parties on April 24, 1964, a copy of which was received in evidence as Plaintiffs Exhibit No. 1. There was no negotiation between the parties concerning the terms thereof. The completed draft was delivered to defendant and he presented it to plaintiff, telling her that she had the right to consult an attorney about it. She declined to do so and, about three days to a week later, signed it.
“5. Plaintiff testified that, at the time, the parties were having no serious marital difficulties; that she anticipated neither separation nor divorce; but that she knew defendant was displeased with her about something. While she didn’t know what he was displeased about, in particular, she knew he was opposed to anything she wanted to do on her own, such as having a checking account, ‘doing things around the house’, et cetera. After she had purchased about $120.00 worth of clothing at Hecht’s department store, on a charge card he had given her, he closed the account and denied her further charging privileges. Defendant made all decisions for her and the family and controlled the money, the checkbook ‘and everything.’ Plaintiff further testified that her primary concern at the time she signed the agreement was with preserving the marriage, not with money as such. While she was not ‘forced’ to sign it, she believed her husband when he told her the agreement was for her protection in the event they should later separate. Defendant confirmed that prior to signing the agreement, plaintiff told him she didn’t want to separate but wanted to remain married. He testified that he told her he wanted the agreement so he wouldn’t ‘lose his property’ and that she said, ‘Go ahead; I don’t want anything you’ve got.’
“6. The parties continued to live together as man and wife, occupying the same bedroom for approximately ten years after the agreement was signed. At the time of the hearing, they still lived under the same roof but for about a year she had slept in the living room and he in the bedroom.
“7. Within a few months after the execution of the agreement, disputes between the parties began to intensify and, about two years later, became serious. In about 1971, plaintiff first consulted a lawyer and then a marriage counsellor, who encouraged her to try to work out the marital problems. By 1974, she knew the marriage was deteriorating badly. The pending Bill of Complaint for Declaratory Judgment was filed on October 4 of that year.
“8. At the time the agreement was executed, plaintiff was not gainfully employed, owned no real property and no personal property of consequence nor did she have any prospect of inheritance from any source.
“9. At that time, defendant solely owned the refrigeration business mentioned above and an 85-acre farm in West Virginia. He testified that 57 acres of land in Boyds, Maryland, apparently improved by two dwellings, one occupied by his son and the other by the parties hereto, the business property at 8408 Ramsey Avenue, Silver Spring, and a rental property at 2308 Linden Lane, Silver Spring, are now owned by him and his son as joint tenants. How these properties were titled on April 24,1964, is uncertain. His adjusted gross income for 1967, as shown by his Federal income tax return for that year, was $28,293.97, of which $26,460.00 was reported as salary paid him by Eaton’s Refrigeration Service, Inc. Plaintiff estimated the 1964 value of defendant’s properties at between $200,000. and $250,000., which he did not expressly deny. [The appellant’s testimony, if accepted, would have shown a 1964 value of approximately $100,000. In our view this would not have changed the result.]
“10. The agreement in question provided, in substance, that plaintiff would keep all the property she had free of any claim by the defendant and that, with the exception of certain jointly owned personalty described in paragraph ‘SIXTH’, plaintiff would give up all rights she might have by way of dower or joint ownership in defendant’s property then owned or thereafter acquired. Each of the parties relinquished the right to inherit from the other and to administer the other’s estate. Additionally, each relinquished ‘any and all rights of whatsoever kind or nature originating in and growing out of the marriage status.’ The plaintiff, under paragraph ‘SIXTH’, received the furniture in the parties’ bedroom, the living room furniture and all kitchen utensils and dishes (but not the kitchen appliances). In addition, it was provided in paragraph ‘TWELTH’ (sic) that,
‘The husband in addition to any other property given to the wife, shall upon separation pay to the wife the sum of One Thousand Dollars ($1,000.00) in full and final payment of all and any other claims, if any, which the said wife may have or believe she has, and the wife shall seek no further payment from the husband by way of support or alimony.’ (Emphasis supplied.)
“Plaintiff testified without contradiction that the furniture which she was to receive cost approximately $3,000. in early 1964 and the kitchen utensils and dishes were worth approximately $300. at the time the agreement was signed.
“11. The Court finds plaintiff’s testimony, that she did not read the agreement before she signed it and that she probably did not then know what ‘alimony’ was, to be well-nigh incredible. It is apparent, however, that despite eleven or more years of schooling she was (and is) of limited intelligence, lacked experience in business affairs, was wholly dependent upon defendant for the support of herself and children, was economically and psychologically insecure, was largely submissive to the will and wishes of defendant, and viewed the agreement as a means of placating his ‘displeasure’.
“There is no contest between the parties as to the propriety of declaratory relief in this mattered[] In fact, defendant’s answer prays that the Court find that the agreement between the parties is valid and binding upon them. Accordingly, the Court will determine the validity of the challenged agreement pursuant to Secs. 3-401 et seq., Courts and Judicial Proceedings Article, Maryland Code (Uniform Declaratory Judgments Act).
“By virtue of the common law and Section 28, Article 16, Md. Code, separation and property settlement agreements not disclosing on their face any injustice or inequity are presumptively valid and the burden to prove that their execution was caused by coercion, fraud or mistake is upon the party making the allegation. Jackson v. Jackson, 14 Md. App. 263, 269; Cronin v. Hebditch, 195 Md. 607, 618, citing Owings v. Currier, 186 Md. 590.
“In the instant case, as in Cronin, the agreement between a penniless wife and a comparatively wealthy husband (though not nearly as wealthy as Hebditch), shows on its face that it is without reasonable consideration and is unjust and inequitable. While there is no unlawful agreement here to obtain a divorce, as there was in Cronin, defendant in this case has ostensibly purchased far more cheaply than a Court of Equity can condone all of the plaintiffs rights ‘of whatsoever kind or nature originating in and growing out of the marriage status.’ This language could hardly be broader or more pervasive.
“Assuming, arguendo, that the agreement might be facially valid, plaintiff has shown by a fair preponderance of evidence that the marital relationship was such as to give defendant dominance over her, Gurley v. Gurley, 245 Md. 393, 398; Manos v. Papachrist, 199 Md. 257, 262, that the agreement is not only unfair but is a fraud upon her marital rights in the light of the surrounding circumstances. Cronin v. Hebditch, supra.
“The Court rejects defendant’s claim of laches, asserted for the first time in argument, based on Kenny v. Peregoy, 196 Md. 630. That case is so clearly distinguishable on its facts as to be inapposite. The wife’s delay in bringing this action has not been such as to deprive the husband of any of his rights. He is still alive, well and fully capable of defending the claims made against him.”

Contrary to appellant’s argument, there is ample evidence in the record to support the chancellor’s findings of fact. Appellant’s reliance on Grossman v. Grossman, 234 Md. 139, 198 A. 2d 260 (1964) and Owings v. Currier, supra, is misplaced. In neither of those cases was there a finding that a relatively wealthy husband dominated an impecunious wife and induced her to sign a property agreement without reasonable consideration.

Decree affirmed.

Appellant to pay costs.

      . See Md. Code, Art. 45, § 20 (1957, 1971 Repl. Vol.); Blumenthal v. Monumental Security, 271 Md. 298, 302, 316 A. 2d 243 (1974); Hudson v. Hudson, 226 Md. 521, 525, 174 A. 2d 339 (1961).


author: Moylan, J.,

text:
    DARYL RENARD STEVENS v. STATE OF MARYLAND
    [No. 331,
    September Term, 1976.]

      Decided December 8, 1976.

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

      Sanford Z. Berman, with whom were Pickett, Hendon & Berman on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and , Lawrence Beck, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Pivotal in this case is the difference between collateral estoppel and double jeopardy. The appellant, Daryl Renard Stevens, was convicted in the Circuit Court for Montgomery County by Judge H. Ralph Miller, sitting without a jury, of breaking and entering in contravention of Article 27, § 31A. Although framed in terms of the legal sufficiency of the evidence, the motions and argument actually made by the appellant at the end of the trial, as well as the argument before us both orally and in his brief, make it clear that the collateral estoppel question is the crucial issue herein.

The initial offense from which all of the charges against the appellant originally sprang was the burglary of Apartment 13, 1702 Mt. Pisgah Lane, in Silver Spring, Maryland, at some time between March 2 and March 7,1974. A large amount of household goods and furnishings was stolen in the course of that burglary.

On April 24, 1974, and again on May 4, 1974 (the first search being at least seven weeks after the latest possible date for the burglary), two searches of the dormitory room of the appellant on the campus of the University of Maryland revealed 28 of the items taken in the burglary. There was no evidence directly linking the appellant to the breaking and entering. The State relied for its proof upon the permitted inference of fact from the established possession of recently stolen goods that the possessor was the thief thereof. Anglin v. State, 244 Md. 652, 656-657. It follows ineluctably that if the evidence as to the corpus delicti establishes that the larceny occurred in the course of a burglary, the permitted inference is that the possessor of the recently stolen goods was the burglar as well as the thief. If a straight question of legal sufficiency were before us, we would have no difficulty whatsoever in affirming this conviction. The procedural history of the case is, however, a far more tangled one.

As a direct result of the May 4 search, the appellant was arrested on May 8 on an arrest warrant issued out of the District Court of Maryland for the Fourth District (Prince George’s County) and charged with receiving stolen goods. The appellant came to trial in that court on June 13,1974. As a result of preliminary plea bargaining, the State amended the receiving stolen goods charge so that the value of the stolen property was under $100. The appellant initially had entered a plea of guilty but the plea was subsequently changed to “not guilty.” The appellant offered no evidence and acquiesced in an agreed statement of facts recited by the State. The agreed statement read as follows:

“State: As to the receiving count your Honor, the State would represent to the Court that on or about .the 4th day of May, 1974 at 101 Denton Hall, University of Maryland, College Park, Maryland (proper names spelled as heard) in Prince George’s County, that the defendant did receive knowingly and unlawfully — (can’t understand) items of household goods and furnishings, statues, etc., articles of personal goods at the value of $99.00, that which is the property of Stanley Chatsky (as heard), knowing the same to be stolen or under circumstances should have known. As to the second count your Honor, enter a nolle pros.
Judge: Is there any objection to the statement of facts given by the State?
Counsel: No your Honor.
Judge: Is there any other evidence on the issue of guilt?
Counsel: No your Honor.”

The judge then said to the appellant that “the court is convinced of your guilt beyond a reasonable doubt.” The judge went on to say:

“The Court will accept the recommendation of the State Mr. Stevens, therefore, we will enter a finding of probation before verdict, place you on 12 months unsupervised probation. Any difficulties in ■ the 12 months Mr. Stevens and you’re brought back and I — find you guilty. Do you understand what I’m saying?”

In the meantime, the processes of the law were moving forward in Montgomery County to bring the appellant before the bar of justice for common law burglary and related offenses. These charges arose out of the same evidence that was the gravamen of the receiving stolen goods charge in Prince George’s County. On June 5,1974, the Grand Jury for Montgomery County returned an eight-count indictment against the appellant, charging in its various counts:

(1) common law burglary,
(2) statutory nighttime housebreaking,
(3) statutory daytime housebreaking,
(4) breaking and entering the dwelling house of another (the only remaining charge before us in this case),
(5) grand larceny,
(6) petty larceny,
(7) receiving stolen goods at the grand larceny level and
(8) receiving stolen goods at the petty larceny level.

The appellant filed a Motion to Dismiss the Montgomery County indictment upon the grounds of double jeopardy, collateral estoppel and res judicata. The Motion to Dismiss was denied and, pursuant to Neal v. State, 272 Md. 323, the appellant noted an immediate appeal. In Stevens v. State, 27 Md. App. 460, Judge Lowe reasoned for this Court that jeopardy had attached at the hearing in the District Court for Prince George’s County and that the right against double jeopardy would therefore bar the Montgomery County prosecution on the two counts charging greater and lesser receiving stolen goods and, for related reasons, on the two counts charging grand and petty larceny. He there said, at 466-467:

“Consequently, appellant’s Motion to Dismiss the Indictment should have been granted as to the Seventh and Eighth Counts of the Montgomery County Indictment for receiving the same stolen goods for which he had been once placed in jeopardy in Prince George’s County. It follows logically that the Fifth and Sixth Counts charging larceny of the same items should also have been dismissed since one may not be convicted of stealing that which he has been determined to have received. Bell v. State, 220 Md. 75; Heinze v. State, 184 Md. 613, 617.”

He went on to hold, however, that the other counts charging, respectively, common law burglary, statutory nighttime housebreaking, statutory daytime housebreaking and breaking and entering would not be barred on direct double jeopardy grounds because “[e]ach of these crimes has elements different from and/or in addition to the crime of receiving stolen goods for which appellant is serving his probationary period.” Stevens v. State, at 467.

Subsequent to that holding by this Court, the appellant proceeded to trial in Montgomery County upon the four remaining charges. At the conclusion of the State’s case, the prosecuting attorney, possessing only an inference and therefore no evidence of the element of “nighttime”, entered a nolle pros to the charges of common law burglary and statutory nighttime housebreaking. The trial court in turn, as fact finder, found the appellant not guilty of statutory daytime housebreaking. The guilty verdict was on the only remaining charge, that of breaking and entering the dwelling house of another.

It is, of course, the law of this case under Stevens v. State, supra, that that conviction is not barred by any direct consideration of double jeopardy. It remains to be considered whether that conviction, upon the evidence presented, should have been barred by collateral estoppel under Ashe v. Swenson, 397 U. S. 436. The critical determination in this regard is whether there was or was not an issue of ultimate fact as to whether the appellant was a receiver of stolen goods, which fact was once determined by a valid and final judgment. If there has been such a valid and final judgment of fact, then we should hold that the present conviction is barred by collateral estoppel. To have been a receiver of stolen goods would, ipso facto, negate the appellant’s having been the thief of such goods. Under the evidence of this case involving the double-barrelled inference, the appellant could not be found to have broken and entered the house without first having been found to have been the thief. This conclusion is not a matter of law but rather an unavoidable operation of logic based upon the only available evidence. The inference that the appellant was the thief arising from the possession of recently stolen goods would be the indispensable middle term in the State’s “legal sufficiency” syllogism in this particular case. The only evidence that the appellant broke and entered the house is based upon the fact that the burglar and the thief were one and the same man. To infer the breaking, therefore, it is first necessary to infer the theft. A valid and final judgment of ultimate fact to the effect that the appellant was a mere receiver and, therefore, of necessity not the thief would defeat the syllogism.

The peculiar nature of probation before verdict, however, establishes that there was no such valid and final judgment of ultimate fact. The law of Ashe v. Swenson, supra, is to the effect that:

“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U. S. at 443. (Emphasis supplied)

Double jeopardy protects an individual against being placed again in peril on the same charges absent waiver or manifest necessity; collateral estoppel, by contrast, protects an individual against being placed in new peril on different charges after an ultimate and unquestioned fact finding on an earlier charge which would of necessity negate guilt at the subsequent trial of a factually related though legally distinct charge.

The question before us is whether the probation without verdict on the charge of receiving, absent the actual verdict on the charge of receiving, constitutes “an issue of ultimate fact [having] once been determined by a valid and final judgment” within the contemplation of Ashe v. Swenson. The ultimate fact is, of course, that the appellant is the receiver and, therefore, not the thief.

The state of the law on the subject of probation without verdict at the time of the appellant’s appearance before the District Court in Prince George’s County was clearly that there was no valid and final factual judgment. For that reason, no fine or other penalty could be imposed upon such a probationer. Commissioner of Motor Vehicles v. Lee, 254 Md. 279; Skinker v. State, 239 Md. 234. Indeed, the appellant’s entire argument in this case is predicated upon the contention that he has been determined to have been a receiver of stolen goods. As the Court of Appeals made clear in State v. Jacob, 234 Md. 452, the nature and purpose of probation before verdict is the very antithesis of such a determination, saying at 455:

“[ P]robation without verdict, if granted, avoids any finding of guilt. Indeed, one of its primary purposes, where its use is deemed appropriate, is to avoid placing the stigma of a conviction on the accused.”

In Bartlett v. State, 15 Md. App. 234, Judge Powers thoroughly analyzed the nature of probation without verdict and held squarely that where the probation is ultimately revoked, the case reverts to its pre-probationary status, which in terms of ultimate factual determinations is zero. He there said, at 241:

“Should the probation thus granted be revoked at a subsequent hearing for that purpose, the case reverts to its status at the time the probation was granted, and determination of guilt, by plea or trial, must follow before any sentence may be imposed.”

In State v. Bartlett, 267 Md. 530, the Court of Appeals adopted the opinion of this court in Bartlett v. State, supra. Bartlett dealt with an instance where a guilty plea had initially been offered by the ultimate probationer without verdict. In Duppins v. State, 17 Md. App. 464, we dealt with the analogue of a consistent plea of not guilty and reaffirmed that there was no binding judgment capable of having any residual effect. We there said, at 467:

“If the granting of probation without verdict aborts a trial where there has been a guilty plea filed there would seem to be more reason that a trial should be aborted where the accused has never admitted guilt. In either case the court has found no verdict. If a new trial is required in one case, more cogent reasons require a new trial in the other case.”

Building upon that law, Judge Lowe, in the Stevens case, contrasted the jeopardy which attaches at the beginning of a hearing with the collateral estoppel that arises only upon final judgment. In affirming the pretrial decision of the Montgomery County Court in not dismissing the breaking and entering charges, he said at 27 Md. App. 463-464:

“His reasoning would have been appropriate to considerations of the evidentiary rules of collateral estoppel and res judicata since these principles are both conditioned upon an issue of ultimate fact having been once determined by a valid and final judgment. Ashe v. Swenson, 397 U. S. 436.”

Upon that reasoning, we conclude that collateral estoppel will not bar the conviction here. The collateral facts upon which the estoppel is predicated were never finally established.

The appellant’s second contention is that the trial judge was acting beyond his authority in imposing restitution in this case as a condition of probation. The governing authority is Article 27, § 641A, which provides, inter alia:

“Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper....”

We see nothing inappropriate in restitution being made a condition of probation under the circumstances of this case.

Judgment affirmed; costs to be paid by appellant.

      . Chapter 527 of the Acts of 1975 drastically rewrote the law of probation without verdict, obviating the trial de novo upon a revocation of probation and, therefore, supplying some finality to the original fact finding. The new law is not applicable to the present case.

      . As to whether a negotiated verdict rather than a true fact finding should ever form the basis for collateral estoppel, consider the mischief that might be done by a truly clever criminal. Posit a quick and successful plea of guilty to receiving stolen goods and contemplate the possible effect upon an ultimate trial for burglary, armed robbery, and even murder premised upon the intermediate inference that the possessor of the recently stolen goods was the thief.


text:
    LINWOOD DANIELS v. SUPERINTENDENT, CLIFTON T. PERKINS STATE HOSPITAL
    [No. 357,
    September Term, 1976.]

      Decided December 8, 1976.

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

      Robert C. Turner, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Arnold M. Zenuitz, Assistant Public Defender, on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Svnsher, State’s Attorney for Baltimore City, and Stephen Tully, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Appellant was confined in the Clifton Perkins State Hospital, pursuant to Md. Code, Art. 59, § 27, after he had been found not guilty of a homicide by reason of insanity. Approximately two years later he petitioned for release as permitted by that section. Application for release under § 27 is “pursuant to the provisions of § 15 of this article.” See also Keiner v. Superintendent, 240 Md. 608.

Section 15 allows any mental patient to petition the equity court for release. It sets forth a unique procedure for hearing the petition, attempting to provide abundant safeguards against wrongful commitment. The result is a bastard proceeding, for the petition is heard in equity but the patient has the right to a jury, and the trial procedure is as a civil action at law. Apparently, the legislature sought to provide a petitioner with the procedural safeguards of proceedings at law, the conscience of an equity court and the availability of a jury trial — historically sacred and constitutionally sanctified as the deus ex machina of justice and right.

Upon filing his petition for release in the Circuit Court of Baltimore City, appellant prayed, and received, a jury trial. When the “god machine” failed to release him, he appealed to us, complaining that the verdict resulted from the chancellor’s having unconstitutionally assigned him the burden of proving his sanity. He asks one question only:

“Is placing the burden of proof on the patient seeking release from a state mental hospital after having been found not guilty by reason of insanity a violation of the patients right to equal protection?”

Appellant’s contention that he was denied equal protection is based upon two arguments. First, he complains that by regulation 10.04.03 of the Maryland State Department of Health and Mental Hygiene, civil involuntary committees are entitled to periodic administrative hearings at which the Department must affirmatively establish the petitioner’s insanity “by clear and convincing evidence”. Presumably because appellant was compelled to carry the burden of proving sanity upon his petition under the judicial release statute, the only route available to him, he contends that he was denied equal protection.

Although the legislature authorized the Department to provide a procedure to release civilly committed patients, that authority did not extend to the establishment of judicial procedures for release of committees under § 27. See Md. Code, Art. 59, § 18 (a). Relying in part on Bush v. Director, 22 Md. App. 353, we said in Davis v. Director, 29 Md. App. 705, 717:

“We do not deem it to have been the legislative intent in authorizing the Secretary of Health and Mental Hygiene to make rules and regulations for the administration and enforcement of the Mental Hygiene article and for the operation and administration of the Department of Health and Mental Hygiene, that the Secretary, in exercise of such authority, could set the standard of proof in judicial proceedings, including those related to matters completely independent of his responsibilities, duties, and jurisdiction.”

Furthermore, the judicial release procedure set forth in § 15 should not be entwined or confused with the Department’s administrative release procedure in Reg. 10.04.03. The burdens are different, the standards are different and certainly the tribunals are different. There is no constitutional requirement that procedural protection, from whatever source it may emanate, be reduced to the lowest common denominator. The Department’s administrative procedure does not supplant a civil committee’s application for judicial release. Rather, it provides an additional route to release, more as an administrative safeguard to the Department, than as a substitute for judicial release. The judicial release procedure remains available to civil, as well as criminal, patients, and when invoked the same standards are applied, including the assigned burden of proof to both classifications of committees.

Since the judicial release procedure is available to all, it appears that appellant’s real complaint is that he is denied equal protection because the additional administrative release procedure available to civil committees is not available to criminal committees. However, if that is the crux of his claim, he has missed an important procedural step. Appellant has not applied for administrative release and been denied access to that procedure. Instead, he immediately sought judicial release under the statute. Perhaps more significantly, he did not argue in the circuit court that he was entitled to the administrative procedure. Having failed to do so, he cannot now protest what he perceives to be an unconstitutional dearth of an administrative remedy. Md. Rule 1085.

Even if appellant’s contention that he was denied equal protection were properly before us, he assumes a proposition with which we would have to disagree: that the judicial procedure affords less protection than would the administrative procedure. Conceding that the procedures are not equal (i.e., the same), the protections afforded judicially are no less than those afforded administratively. That concern went to its repose in the persuasive Fourth Circuit opinion of Dower v. Boslow, 539 F. 2d 969. The alleged unequal protection argued there was the variance in the standards of proof between the judicial release procedure for defective delinquents committed to Patuxent Institute pursuant to Md. Code, Art. 31B, § 5, and the same administrative procedure regulation protested here. Judge Craven, writing for the Court, said:

“We are unable to conclude that a person is afforded less protection by a judicial procedure which requires proof by a preponderance of the evidence, but which also grants the important right of jury trial, than he is given by an administrative procedure before a single hearing officer, even though the state is required there to prove the issue by clear and convincing evidence. We are inclined to think it may be greater.
New lawyers, we think, would give up trial by jury in favor of a higher burden of proof before an administrative officer. The right to a jury may well more than counterbalance a difference in standard of proof. Indeed, in a similar context the Supreme Court held that failure to provide ‘judicial review before a jury’ to persons committed at the expiration of his criminal sentence, where that right was afforded to those involuntarily committed outside the criminal context, denied equal protection.” (footnote omitted). Dower v. Boslow, 539 F. 2d at 972.

This brings us to the second portion of appellant’s equal protection claim. During oral argument he informed us that the “customary trial procedure” in nisi prius courts is to assign different burdens of proof to petitioners seeking judicial release under § 15, depending upon whether the petitioner was committed under a civil or criminal commitment procedure. If civilly committed, the Department is given the burden of proving insanity. Appellant contends that, by contrast, because he was a criminal committee, he was given the burden of proving sanity.

This argument is conjectural, not a matter of evidence in the record and surely not a proper subject of judicial notice. Even if appellant’s information is correct, we would have to take judicial notice that the trial courts generally apply erroneous standards and further find that appellant was denied equal protection because the judge in his case did not err. The contradiction in that premise is apparent. We are concerned, therefore, only with whether the trial judge in this case properly assigned the burden of proof to appellant when he charged the jury that:

“ ... the burden of proving the issues to you rests with the Plaintiff.”,

not with what other nisi prius judges may have done.

Unhesitatingly, we hold that the judge in this case was correct in assigning appellant the burden of proving his sanity. If appellant’s general procedural postulate is correct, we assume the erring judges will mend their ways and place the burden upon the petitioner in hearings upon application for judicial release pursuant to § 15, whether the petitioner was committed civilly or criminally.

One guideline often followed in placing the risk of failure of proof is to put it upon the party who seeks to change the present state of affairs or who contends that the more unusual event has occurred. McCormick, Evidence, (2d ed.) Ch. 36, § 337; but see 14 Vand.L.Rev. 807, 817-818. In most cases, however, the party who has the burden of pleading a fact or who has the affirmative of an issue will have the burden of producing evidence of the fact and of persuading the jury of its existence. See Operations Research v. Davidson, 241 Md. 550, 574; Burgess v. Lloyd, 7 Md. 178, 196-197. The pleadings, therefore, provide the common guide for apportioning the burden of proof. McCormick, op. cit, § 337. This is so even though one has the burden of proving a negative fact as part of his cause of action. See Burgess v. Lloyd, supra, 7 Md. at 196. It is thus of no moment whether appellant’s burden is viewed affirmatively, as having to prove that he is sane, or negatively, as having to prove that he is not insane.

In the absence of prior adjudication, sanity is presumed by law. See McCloskey v. Director, 245 Md. 497, 504; Higgins v. Carleton and Scaggs, 28 Md. 115, 141-142. 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. 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. 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. . . .”

We have scrutinized appellant’s contentions from every angle, but fail to see that appellant has been denied equal protection because society is protected from him.

Judgment affirmed.

Costs to be paid by appellant.

      . Md. Code, Art. 59, § 27 provides:
      “A person who has been found not guilty of any crime by reason of insanity at the time of the commission of the act, in the discretion of the court, may be committed to the Department of Mental Hygiene for confinement in one of the facilities of the State for examination and evaluation to determine, by the standards applicable to civil admission proceedings under § § 11 and 12 of this article, whether such person by reason of mental disorder would, if he becomes a free agent, be a danger to himself or to the safety of the person or property of others. Upon the basis of the report by the facility, and any other evidence before it, the court may in its discretion, direct that the person be confined in a facility designated by the Department for treatment. He shall at any time after three (3) months from the date of his confinement for examination and evaluation have the right to apply for his release pursuant to the provisions of § 15 of this article. Before a hearing on such application and petition shall be held the applicant shall present a copy of the application and petition to the State’s attorney of Baltimore City or the county from which the defendant was committed. Upon a negative report by the facility, the court having jurisdiction shall order the person promptly released unless good cause for a contrary determination as to dangerousness is shown by the State’s attorney.”

      . Md. Code, Art. 59, § 15 provides:
      “(a) Petition to be filed,; respondent. — Any patient may, at any time, subject to the limitations specified in this section, file a petition in the equity court of the county in which he resides or resided at the time of his admission, or in which he is confined for the purpose of securing his release. Any person having a legitimate interest in the welfare of the patient may file the petition on his behalf. The Department shall be the respondent in any such case, unless the patient is a patient in a private facility or a Veterans’ Administration hospital, in which case the private facility or the Veterans’ Administration hospital shall be named as the respondent.
      (b) Form and contents of petition. — The petition shall be in the form and contain data as may be designated by the Maryland Rules.
      (c) Triad by jury. — The petitioner may request that his petition be heard by a jury, and thereafter, such trial shall proceed as in a civil action at law.
      (d) Issues to be determined; action by court upon jury decision. — The issues to be determined are:
      (1) Does the patient have any mental disorder; and
      (2) Is the disorder of such a nature that for the protection of himself or others, the patient needs inpatient medical care or treatment.
      If the jury or court sitting as a jury answers both questions affirmatively, the court shall remand the patient to the custody of the facility or Veterans’ Administration hospital from which he petitioned for release. If either question is answered in the negative, the petitioner shall be released from the facility or Veterans’ Administration hospital.
      (e) Appeals. — Appeals may be taken from decisions on petitions as in any other equity cases and may be taken by the petitioner or the respondent.
      (f) Records of proceedings. — Records of all such proceedings shall be made a permanent part of the patient record of each patient.
      (g) Affidavit required for subsequent petition within one year. — Once a patient has had a determination on the merits of any one petition filed by him pursuant to this section, no subsequent petition prepared by or for him shall be heard by a court of equity within one year of such prior determination, unless, in addition to all other required data, the petition is accompanied by a valid affidavit showing improvement of the patient’s mental condition subsequent to the trial. No such affidavit shall be valid if executed by a patient of a facility or Veterans’ Administration hospital. When filed, the petition and affidavit shall be reviewed by the court, and if the affidavit shows an improvement in the patient’s mental condition, the petition shall be heard as provided in this section. If no substantial improvement in such condition is shown, the petition shall be dismissed.”

      . Because appellant did not question the standard of proof instruction either below or here (i.e., preponderance of the evidence), we assume that his complaint is simply that under the judicial release procedure (§ 15) he bears the burden of proof, while under the administrative procedure, the Department appears to carry it.

      . The administrative procedure is restricted to civil committees. See Par. ,02A of Reg. 10.04.03.

      .
      “Nothing in this Regulation shall be construed in derogation of the right of any patient or any person on his behalf at any time to apply for a writ of habeas corpus pursuant to Section 14 (a) of Article 59, or to file a petition for judicial release pursuant to Section 15 of Article 59, irrespective of any prior notice to or action taken by the Commissioner of Mental Hygiene.” Par. .05 of Reg. 10.04.03.

      . We note that the Court of Appeals, while falling short of so holding, did indicate that the burden was on petitioner in such cases:
      “ ... [ 0]ne who has been found not guilty of the charge of crime, because of due determination of insanity in a Criminal Court, has the same status as one confined as insane by virtue of some other procedure established by law and in order to obtain release, must satisfy a judge or jury of his sanity, not only under the Spencer [v. State, 69 Md. 28] rule but under the tests generally applied as justifying confinement.” (emphasis added). Salinger v. Superintendent, 206 Md. at 631.


author: Gilbert, C. J.,

text:
    EDITH H. BURKA, Personal Representative of the Estate of Sam Burka et al. v. KENNETH A. PATRICK
    [No. 388,
    September Term, 1976.]

      Decided December 8, 1976.

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

      Alan S. Burke, with whom were Burke, Morse & Burke, P.A. on the brief, for appellants.

      James M. Griffin, with whom were Stedman Prescott, Jr., and Staley, Prescott & Ballman, P.A. on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The premier question asked in this appeal is, does the death of a party to a contract to purchase realty constitute legally excusable impossibility of performance. The appellants, Edith H. Burka, personal representative of the estate of her deceased husband, Sam Burka, and herself, individually, a party purchaser under the contract, are of the belief that when “one [is] dead, [t]he other [is] powerless to [perform].” On the other hand, the appellee, Kenneth A. Patrick, is seemingly of the view that contracts, like heirs and taxes, survive the grim reaper’s harvest.

Before undertaking to resolve the issue, we shall set the factual scene from which it was born.

On September 28, 1971, appellee contracted with William S. Murphy and Betty Murphy, his wife, for the purchase of 15.2 acres of land situated in Montgomery County, Maryland. The agreed purchase price was $141,000. Appellee paid to the Murphys a $2,000 deposit. Two weeks later appellee, with the knowledge of the Murphys, assigned his rights in the contract to Sam and Edith Burka. The Burkas agreed to pay appellee $9,000 over and above his contract price with the Murphys. The Burkas paid to appellee the sum of $2,000 “as earnest money.” The assignment read in pertinent part:

“Received of Sam and Edith Burka, a deposit of Two Thousand Dollars ($2,000.00) as earnest money on the purchase from Kenneth A. Patrick, Realtor, all his rights, title and interest in contract, dated September 28,1971, a copy of which is attached and made part of this assignment by reference. This assignment is subject to the contingencies contained therein. Said Purchasers of this contract agree to pay Kenneth A. Patrick a consideration of Nine Thousand Dollars ($9,000.00) at the time of settlement and agrees to be bound by and comply with all terms of said contract and to save said Kenneth A. Patrick harmless if they fail to comply with the terms of said contract. In the event that the sale is not consummated through no fault of Sam and/or Edith Burka, the deposit hereinprovided shall be returned to them and there shall be no obligation from them to pay anything further.” (Emphasis supplied.)

Settlement under the contract was scheduled for November 22, 1971. Sam Burka died on November 21, 1971, and Mrs. Burka, naturally, did not attend the scheduled settlement. The settlement date was rescheduled for December, but Mrs. Burka did not attend. Because of non-fulfillment of the contract, the Murphys forfeited appellee’s deposit money.

On September 7,1972, the appellee filed suit in the Circuit Court for Montgomery County against Edith Burka individually and as personal representative of her husband’s estate. Appellee claimed the sum of $9,000 as damages. Mrs. Burka, in her dual capacity, not only pleaded to the suit, but filed a counterclaim for $2,000, which sum represented the earnest money previously paid to appellee by the Burkas.

Both sides moved for summary judgments, which were denied by Judge John J. Mitchell. The causes were then submitted on the pleadings and presentation of counsel to the judge for a determination. Judge Mitchell entered judgment in favor of appellee for the claimed $9,000 and also in favor of appellee as counter-defendant.

The appellants’ attack upon the judgment of the circuit court is dihedral. Firstly, they argue that the sentence, “[i]n the event that the sale is not consummated through no fault of Sam and/or Edith Burka, the deposit hereinprovided shall be returned to them and there shall be no obligation for them to pay anything further,” means that if, “because of the ill health of one of the parties,” the contract could not be performed, the matter would be dropped after a refund of the earnest money. Sam Burka’s death, not being due to his own “fault,” they contend, operated as a termination of the contractual liability of both Sam and Edith Burka. Secondly, they assert that “[e]ven if the court were not to find such clause to be clearly effective to discharge appellants, the clause is sufficiently ambiguous and general so that extrinsic and parole evidence can be of use in aid of construction.” Why this latter argument is advanced eludes us, because, as we have already noted, the case was submitted to Judge Mitchell on the pleadings, sans testimony and without the ambiguity question having been raised. Hence, it has not been preserved for our review. Md. Rule 1085. Should we, nevertheless, agree that “extrinsic and parole evidence” would be helpful in the construction of the particular sentence of the assignment now under review, we would be in the same shoes as the trial court, and that is, without the benefit of such testimony. In any event, we do not view the challenged clause as ambiguous.

We interpret the “no fault clause” of the assignment, not as a general “escape hatch,” but rather as meaning that performance by the assignees would be excused in situations such as if they were prevented from performing by the interposition of a judicial, executive or administrative order. Acme Moving & Storage Corp. v. Bower, 269 Md. 478, 483-84, 306 A. 2d 545, 547-48 (1973); Lane v. Dashiell, 195 Md. 677, 689, 75 A. 2d 348, 354 (1950).

The appellants’ initial contention, as we have stated, is that Sam Burka’s death effected a discharge of the assignment because Mr. Burka’s death was not his fault. The weakness in appellants’ argument is that the sale did not fail because of Mr. Burka’s death but rather because Edith Burka did not abide by the terms of her contract to purchase. Viewed in that light, the failure to consummate the contract was the fault of Edith Burka individually and as personal representative of Sam Burka’s estate.

Cognizant that the precise issue before us does not appear to have been heretofore decided by a Maryland appellate court, Judge Mitchell relied upon In re Thompson’s Estate, 164 Kan. 518, 190 P. 2d 879 (1948), to underpin his holding. The Thompson court held that a personal representative may specifically enforce a contract between the representative’s decedent and others wherein the decedent and the others had agreed to sell property and divide the proceeds.

The case law is that unless the contract is for personal services or by its express provisions terminates upon the death of a party thereto, it survives the death of a party and is binding upon his estate. Thus, in U.S. ex rel. Wilhelm v. Chain, 300 U. S. 31, 35, 57 S. Ct. 394, 396, 81 L. Ed. 487, 490 (1937), Mr. Justice Van Devanter, writing for a unanimous court, quoted, with approval, from 1 Chitty Contracts 138 (11th Am. ed. 1874), where it is said:

“It is a presumption of law, that the parties to a contract bind not only themselves, but their personal representatives. Executors, therefore, are held to be liable on all contracts of the testator which are broken in his lifetime; and, with the exception of contracts in which personal skill or taste is required, on all such contracts broken after his death[.]”

Earlier, Mr. Justice Holmes, in Day v. United States, 245 U. S. 159, 161, 38 S. Ct. 57, 58, 62 L. Ed. 219, 221 (1917), had addressed himself to the risk one assumes when he enters into a contract. Justice Holmes wrote:

“One who makes a contract never can be absolutely certain that he will be able to perform it when the time comes, and the very essence of it is that he takes the risk within the limits of his undertaking. The modern cases may have abated somewhat the absoluteness of the older ones in determining the scope of the undertaking by the literal meaning of the words alone. The Kronprinzessin Cecilie, 244 U. S. 12, 22. But when the scope of the undertaking is fixed, that is merely another way of saying that the contractor takes the risk of the obstacles to that extent.”

A California appellate court decided in Horning v. Ladd, 157 Cal. App. 2d 806, 810, 321 P. 2d 795, 798 (1958), “ [contracts do not die with the contractor (with a few exceptions not here involved) unless they contain provision to that effect.” See also Gold v. Salem Lutheran Home Ass’n of the Bay Cities, 1 Cal. Rptr. 343, 345, 347 P. 2d 687, 689 (1959), wherein the court said that “ ‘. .. contracts must be read in the light of the knowledge of all mankind, that death may come tomorrow,’ ” quoting from Rishel v. Pacific Mutual, 78 F. 2d 881, 883 (10th Cir. 1935). Both Brantley on Contracts (2d ed. 1912) and Clark, Handbook of the Law of Contracts (4th ed. 1931) underscore the case holdings. Brantley at § 124 states, “The rights and liabilities under a contract not involving personal confidence or skill pass by operation of law to the executor or administrator of a deceased party.” Clark, at § 204, says, “On the death of a person all his personal estate passes, by operation of law, to his executors or administrators, and with it also pass all rights of action on contract which will affect such estate, and all liabilities arising out of contract which are chargeable upon it; and actions on such contracts are brought by or against the personál representative in his own name.” (Footnotes omitted.) The rule does not extend, however, to personal service contracts which expire upon the death of either party. Id., accord, Cates v. Cates, 268 Ala. 6, 104 So. 2d 756 (1958); McDaniel v. Rose, 153 S.W.2d 828 (St. Louis App. Mo. 1941); In re Loe’s Will, 55 N.Y.S.2d 723 (1945); Minnehaha Co. v. Willadsen, 69 S. D. 412, 11 N.W.2d 55 (1943); Restatement of Contracts § 459, Comment c (1932); 1 T. Parsons, The Law of Contracts Ch. VIII, § 131(n) & (r) (9th ed. 1904); 3 S. Williston, The Law of Contracts § 1945 (1920).

The possible reason for the dearth of appellate decisions in this State on the subject is found in Md. Ann. Code art. 50, § 1. Although neither party nor the trial court relied upon that section of the code, it has been, nevertheless, in substantially the same form, part of the statutory law of this State since 1811. Current art. 50, § 1 provides:

“Where two or more persons are jointly bound by bond, promissory note or by any other writing, whether sealed or unsealed, to pay money or do any other thing and one or more of such persons shall die, his or their executors and heirs shall be bound in the same manner and to the same extent as if the person so dying had been bound severally as well as jointly.”

There can be no doubt that the undertaking by Sam Burka and his wife, Edith Burka, was a joint obligation, in writing. Ergo, under the provisions of art. 50, § 1, Sam Burka’s personal representative was bound to perform the contract just as Sam Burka would have been bound had he survived.

From our examination of the case law and the above quoted statute, we conclude that the rule is that, absent a provision in a contract to the contrary, death no more excuses the performance of a nonpersonal service contract than it exempts persons from its own grasp. We hold that Judge Mitchell did not err in entering judgment in favor of the appellee.

The remaining issue raised by appellant is concerned with the question of the amount of the judgment. We have already held herein that it was Mrs. Burka, individually and as personal representative of Sam Burka’s estate, who breached the contract by her refusal to perform in accordance with its terms. Therefore, the ordinary test for the measure of damages would be the difference between the contract price and the market price at the time and place of the breach. Kasten Construction Co. v. Jolles, 262 Md. 527, 278 A. 2d 48 (1971). Appellant argues, however, that such a test should not be applied because the assignment in the instant case was not a “true” real estate contract, inasmuch as appellee was not the owner of the land involved in the transaction. The test to be applied in measuring damages in arrangements such as that now before us may be stated thus: When, as here, a party enters into a real estate purchase agreement and then assigns his interest to a third party, upon breach by the third party, the correct measure of damages is the difference between the contract price payable to the original seller and the amount to be paid by the third party, the ultimate purchaser. Anno. “Measure of Damages for Purchaser’s Breach of Contract to Buy Real Property,” 52 A.L.R. 1511 (1928) at 1529-30; Lathrop v. O’Brien, 44 Minn. 15, 46 N. W. 147 (1890); Roper v. Milbourn, 98 Neb. 466, 153 N. W. 557 (1915); McDaniel v. Daves, 139 Va. 178, 123 S. E. 663 (1924).

Applying the applicable measure of damages to the instant case, we see that the contract, price payable to the original seller was $141,000. The amount agreed to be paid by the third party, the appellants, was $150,000. The obvious difference between the two sums is $9,000 and that is the amount of damage sustained by the appellee Patrick. It is also the amount for which Judge Mitchell properly entered judgment in favor of Patrick against appellants.

Judgment affirmed.

Costs to be paid by appellants.

      . Matthew Arnold, 1822-1888, Stanzas from the Grande Chartreuse. St. 15. [1855],

      . The Murphys are not parties to this litigation.

      . Under current Maryland law, with the exception of a “special administrator,” the designation “personal representative” includes both “executor or administrator.” Md. Ann. Code, Estates and Trusts Article, § 1-101 (o).

      . Laws 1811, ch. 161 § 1 provided:
      “BE IT ENACTED by the General Assembly of Maryland, That if two or more persons are jointly bound for the payment of a debt, or for the performance or forbearance of any act, or for any other thing, and one or more of said obligors die, his _ or their representatives may be charged by virtue of such obligation, in the same manner as such representatives might have been charged if said obligors had been bound severally as well as jointly.”