text:
    JOSEPH P. CERTA et al. v. ROBERT A. WITTMAN
    [No. 719,
    September Term, 1976.]

      Decided March 16, 1977.

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

      Nancy E. Paige, with whom were Allan J. Malester and Gordon, Feinblatt, Rothman, Hoffberger & Hollander on the brief, for appellants.

      Sheldon E. Friedman for appellee.
   Lowe, J.,

delivered the opinion of the Court.

It would serve little purpose to recite all of the parties’ conduct in negotiating the purchase and sale of certain real estate, part of the cost of which forms the subject of this suit. It will suffice to say that appellee, who was not licensed to sell real estate, obtained an option to purchase certain real estate and a “Contract of Sale” for that property (for a $340,000 purchase price) and sold the latter to appellants for $50,000 less one-half of the transfer tax. Appellants, the ultimate purchasers, contend on appeal that appellee’s conduct, as evidenced by the preliminary negotiations and other circumstances surrounding the transaction, brought him within the definition of a real estate broker or salesman set forth in Md. Code, Art. 56, § 212 (a) and (b), and explicated by subsection (e). If that is so, argue appellants, appellee is proscribed from collecting through judicial process the $31,500 unpaid balance of the option’s purchase price by Md. Code, Art. 56, § 228, which states:

“No action or suit shall be instituted, nor recovery therein be had, in any court of this State by any person, copartnership, association, or corporation for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this subtitle to other than licensed real estate brokers and real estate salesmen unless such person, copartnership, association or corporation was duly licensed hereunder as real estate broker or real estate salesman prior to the time of offering to perform any such act or service or procuring any promise or contract for the payment of compensation for any such contemplated act or service.”

Because the case was tried without a jury (in the Circuit Court for Baltimore County), we are bound by the clearly erroneous standard of Md. Rule 1086 when reviewing the evidence, but simple error in the application of the law will compel reversal. A. S. Abell Co. v. Skeen, 265 Md. 53, 55; Schwartzbeck v. Loving Chevrolet, 27 Md. App. 139, 145.

We accept the trial judge’s findings on the evidence and give due regard to his opportunity to judge the credibility of the witnesses. Setting the stage for argument by counsel, he expressed some of his conclusions:

“I have certain determinations that can be easily, made. Number one, I am going to not listen to any argument at all in reference to any form of an agreement of an option prior to April 18th or 19th, whatever that date was. I am finding as a matter of fact — and I do not believe the Plaintiff in this case whatsoever or the witnesses that testified. All of the evidence in this case indicates to me exactly what happened, Mr. John Serio drew up something in April, which was submitted to the Plaintiff in this case, and which he has been using, which was never signed until April 18th, and there was never a prior agreement ten days or two weeks ahead of time, I am finding that as a matter of fact, and I don’t want any argument over it; everything in this case indicates it.” (emphasis added).

The intensity with which he expounded his views upon the credibility of witnesses in his opinion left little room for doubt as to his views:

“I have heard all of the testimony, I have heard final argument of counsel, and I find in front of me two fast and loose operators of big money, that in my opinion will take advantage of anybody or any place they can to come out on top, and in this particular case that is in front of me.
I am very, very upset, as you can tell, at the type of testimony given by Mr. Wittman. And if I should decide my cases on the basis of who is candid in this case, I would enter a verdict in favor of Mr. Certa, because I think he was a very honest individual as far as this case is concerned and what he had to say about it; and I do not think that Mr. Wittman was. However, he is the sharper of the two operators as far as this case is concerned; he outsmarted the other one, and he comes out with the loot in the long run.
For the reasons I have just stated, I have to find a judgment, as much as I don’t like to do it, I have to find a judgment in favor of Mr. Wittman in the amount of $31,500. I will not allow any back interest; the interest will be from the date of the judgment. This is the court’s determination. Costs to be paid by the Defendant in the case.”

Although we adhere to the trial judge’s findings of fact from his personal observations of the witnesses, it is apparent that he applied these evidentiary conclusions to an overly rigid interpretation of the law. The court clearly labored under the misapprehension that the existence of a valid option obviates the strictures of § 228 as a matter of law, notwithstanding a preexisting expectation or intention of obtaining the option, for sale to another, for a fee:

“We all recognize if there is a loophole in the real estate law, there is a loophole, because an individual like Mr. Wittman, who has no right to practice real estate, doesn’t go about what is necessary to do, can go out and pick up an option, and turn around, and make money off of it, which is nothing but a camouflage around the real estate law, but that exists, and it is not illegal to do it; it should be illegal, but it isn’t. In fact, I intend to write a letter to the Real Estate Board, and explain everything I can about this case and what has been going on. I think both of these parties realized at the time what kind of shenanigans they were involved in. However, Mr. Wittman can walk out of here right now, see a sign on a piece of property across the street from the court house, and if he is glib enough, can walk in, and for fifty or five hundred dollars get an option on it, with the full intention he is going to turn around and sell that option, resell it to someone else, and the laws says he is able to do it; and I think it’s a crime the law should be that way.
All of the cases that counsel for the Defendants has explained to me are not cases where there was an actual option. Counsel keeps trying to get me to declare there was no option in this case. Unfortunately for his client, Mr. Certa, there was an option, and that option was a valid option.” (emphasis added).

Without questioning the factual conclusion of the existence of a valid option, we do not agree with the trial court’s interpretation that its existence alone permits a circumvention of the prohibition of Md. Code, Art. 56, § 217, which proscribes unlicensed entities from acting as real estate brokers.

The definition of a real estate broker includes any person who is regularly engaged in the business of dealing and trading in real estate “or leases and options thereon”. Md. Code, Art. 56, § 212 (a). Subsection (e) of § 212 provides that any person, who, for another, engages in a single transaction described in the definition of a broker, with the intention or expectation of collecting a fee, shall be deemed a real estate broker or salesman within the meaning of the subtitle “REAL ESTATE BROKERS”.

The evidence supported the factual conclusions that after considerable negotiations through realtors to find a desiring party (Certa) relative to a desirable property, Wittman purchased an option for $500 from the owner of the property (Worthington Valley Estates, Incorporated) which option he thought he had patterned to Certa’s satisfaction. Finding he had not done so, he renegotiated the terms of the ultimate purchase with Certa. The negotiations culminated in an agreement which recited that Wittman’s option was not satisfactory to Certa and that Wittman pledged his “best efforts to cause Worthington Valley Estates, Incorporated to execute a substitute agreement, hereinafter referred to as the ‘Contract of Sale’ ”. The purchase price of the contract of sale was to be $50,000 less one-half of the transfer tax. Certa agreed to provide the contract deposit which was to become the liquidated damages if settlement was not made as contracted, leaving appellee with nothing at stake but the $500 cost of the option.

This is precisely the type of conduct that the statute proscribes by one who is neither a licensed broker or salesman nor fits one of the eight excepted categories which permit sales by persons other than licenséd brokers or salesmen. Md. Code, Art. 56, § 212 (f). The evidence does not indicate that appellee fits in any of these categories.

Paraphrasing a case strikingly apposite, although not controlling, Smirlock v. Potomac, 235 Md. 195, 203, it follows, we think, that § 228 is, as it purports to be, a bar to appellee’s action for compensation. This does not mean that Certa was so innocent as to command our aid. To the contrary, the record reflects, and the judge observed, that both parties were “fast” if not “loose” operators who were aware of “what kind of shenanigans they were involved in.” Wittman, not Certa, asked the courts to aid him in his questionable endeavors. The law will not aid a man who founds his cause of action upon his own illegal acts. The courts should leave such parties where they found them. See Zalis v. Blumenthal, 254 Md. 265, 267.

The Court of Appeals in Thorpe v. Carte, 252 Md. 523, 529, quoting 2 Restatement Contracts § 598, Comment a, expressed the reason for its reluctance to award recoveries to those who try to circumvent the law, even absent § 228:

“ ‘[T]he rule of public policy that forbids an action for damages for breach of such an agreement is not based on the impropriety of compelling the defendant to pay the damages. That in itself would generally be a desirable thing. When relief is denied it is because the plaintiff is a wrongdoer, and to such a person the law denies relief Courts do not wish to aid a man who founds his cause of action upon his own immoral or illegal act. If from the plaintiffs own statement or otherwise it appears that the bargain forming the basis of the action is opposed to public policy or transgresses statutory prohibitions, the courts ordinarily give him no assistance. The court’s refusal is not for the sake of the defendant, but because it will not aid such a plaintiff.’ ” (emphasis added).

Straight shooters should always win, but when there are none, bad guys need not look to us for help.

Judgment reversed.

Costs to be paid by appellee.

      . The trial court found that appellee had assigned appellants a valic option. The record shows, however, that it was actually the “Contract o Sale” which was assigned. The discrepancy affects neither our reasonini nor our result.

      . We have read all of the authority cited by appellee which, while informative on options, is inapposite to the questions in this case.

      . § 212
      “(a) ‘Real estate broker’ defined. — ‘Real estate broker’ shall mean any person, association, copartnership or corporation foreign or domestic, who for another and for a fee, commission or any other valuable consideration sells, purchases, exchanges, leases, rents, or collects rent for the use of real estate or who attempts or who offers by verbal solicitation, advertisement or otherwise to perform any such function, or who aids, attempts or offers to aid, for a fee, any person in locating or obtaining for purchase or lease any residential real estate, or who is regularly engaged in the business of dealing and trading in real estate or leases and options thereon, or who engages in the business of charging an advance fee or contracting for collection of a fee in connection with any contract whereby he undertakes primarily to promote the sale of real estate through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both, or who is engaged in the business of subdividing and selling land in building lots or sites, whether such real estate is located in this or any other state or the District of Columbia.” (emphasis added).

      . § 212
      “(ei Acts constituting person real estate broker or salesman. — Any person, partnership, association, or corporation, who, for

        another, in consideration of compensation, by fee, commission, salary, or otherwise, or with the intention or in the expectation or upon the promise of receiving or collecting a fee, does, offers or attempts or agrees to do, engages in or offers or attempts or agrees to engage in, either directly or indirectly, any single act or transaction contained in the definitions of a real estate broker or real estate salesman in subsections (a) and (b) of this section, whether said act be an incidental part of a transaction, or the entire transaction, shall constitute such person, partnership, association, or corporation a real estate broker or real estate salesman within the meaning of this subtitle.” (emphasis added).

      . In addition to the negotiations for the option in anticipation of resale, the evidence clearly showed, and the judge observed, to appellee that:
      “you’ve got judgments running up and down your arms, don’t you? ... You owe everybody in town, don’t you, Mr. Wittman?”,
      further indicating that the option was obtained with the sole intent and expectation of resale for a profit.

      . § 212.
      “(f) Exceptions. — The terms ‘real estate broker’ and ‘real estate salesman’ shall not include:
      (1) Receivers, trustees, administrators, executors, guardians or other persons appointed by or acting under the judgment or order of any court; nor
      ■ (2) Public officers while performing their official duties as such; nor
      (31 Any bank, trust company or mortgage loan institution organized under the laws of this State or the United States with respect to the management or sale of any property acquired through or in connection with mortgage foreclosures; nor
      (4) Owners or lessors of property in the management and sale of such property unless their principal and regular business is that of purchasing, selling, exchanging or trading in real estate and options and leases thereon; nor
      (5) Investment home builders with respect to the sale or rental of houses constructed by them; nor
      (61 Attorneys at law who are not regularly engaged in the real estate business and who do not hold themselves out by sign, advertisement or otherwise as offering to the general public the services authorized by this subtitle to be performed by real estate brokers; nor
      (7) Any person .holding in good faith a duly executed power of attorney from the actual owner authorizing the sale and conveyance or leasing of any real estate, where only one such transaction is involved; nor
      (8) Any duly licensed auctioneer with respect to the sale of real estate at public auction.”


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    JOHN W. WHEELER v. STATE OF MARYLAND
    [No. 725,
    September Term, 1976.]

      Decided March 16, 1977.

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

      Burton W. Sandler for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Robert Hedeman, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

A jury in the Criminal Court of Baltimore, presided over by Judge Solomon Liss, decided that the magazine entitled “Linda Lovelace, the Star of Deep Throat” was, under contemporary community standards, obscene. In so doing, the jury convicted John W. Wheeler of violating Md. Ann. Code art. 27, § 418, and Judge Liss imposed a fine upon Wheeler of five hundred dollars ($500).

Wheeler has appealed to this Court where he challenges the constitutionality of section 418 on equal protection grounds, and he also contends that the evidence was insufficient to sustain the conviction because there was no showing of scienter on the part of Wheeler.

The factual situation giving rise to this case was simple and straightforward. A detective of the Baltimore City Police Department entered an “adult book store” known as “Swingers Life, Inc.,” located in the 1300 block of North Charles Street in Baltimore City where he purchased at random, a copy of the magazine. The detective paid $5.20 to Wheeler, the only employee in the store. Wheeler, who was behind a “podium-type” counter, placed the magazine in a paper bag and handed it to the detective. The detective testified that he did not open the magazine nor look at it until it was delivered to a District Court judge. That judge reviewed it and issued a warrant for Wheeler’s arrest for unlawfully distributing obscene material. The detective further stated that he was attracted to the publication by its cover, which indicated clearly, as we have said, that it was concerned with Linda Lovelace. At trial, the State, at the conclusion of the detective’s testimony, placed the magazine into evidence without objection.

We shall not endeavor to describe in explicit detail the content of the magazine. Suffice to say that it contained a number of color and black and white photographs of various acts of fellatio, cunnilingus, coitus, and lesbianism, as well as sexual acts being committed by “threesomes.” Weighed by sheer number, “threesomes” and fellatio are the prevalent themes.

The defense testimony was limited to that of Dr. Lawrence Donner, Associate Professor of Clinical Psychology at the University of Maryland School of Medicine. Doctor Donner told the jury that in his view the magazine did not appeal to “prurient interest.” He gave the legal definition of prurient interest as "... a secret, morbid, shameful interest in sex, nudity or excretion . ..” while denying that there was a medical definition for that expression. Moreover, Doctor Donner was of the opinion that the magazine did “not lack serious literary value.” That “[w]hat is'food to one, is to others bitter poison” is apparent from the jury’s verdict which did find the publication to be obscene.

THE CONSTITUTIONAL ISSUE

Wheeler perceives something invidious in the Legislature’s exempting employees of a motion picture establishment from criminal accountability for the showing of an obscene film but not excluding employees of a bookstore from the scope of criminal sanctions.

With Wheeler’s contention in mind, we shall examine the relevant statutes. Md. Ann. Code art. 27, § 418, under which Wheeler was convicted, provides:

“Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.”

Section 417 states in pertinent part:

“As used in this subtitle,
(1) Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
(2) ‘Person’ means any individual, partnership, firm, association, corporation, or other legal entity, but shall not be construed to include an employee of any individual, partnership, firm, association, corporation, or other legal entity operating a theatre which shows motion pictures if the employee is not an officer thereof or has no financial interest therein other than receiving salary and wages.
(3) ‘Distribute’ means to transfer possession of, whether with or without consideration.” (Emphasis supplied.)

Wheeler reasons that there is no rational basis for the legislative distinction between employees of bookstores and employees of theatres which show motion pictures.

The test which statutes must pass was stated in Reed v. Reed, 404 U. S. 71, 75-76, 92 S. Ct. 251, 253-54, 30 L.Ed.2d 225, 229 (1971), where Mr. Chief Justice Burger, writing for the Court, said:

“In applying . .. [the Equal Protection C]lause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U.S. 27 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949); McDonald v. Board of Election Commissioners, 394 U.S. 802 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).”

There is nothing in the Equal Protection Clause of the Constitution of the United States that mandates that all persons must be dealt with identically. Baxstrom v. Herold, 383 U. S. 107, 86 S. Ct. 760, 15 L.Ed.2d 620 (1966). Indeed, as the late Mr. Justice Frankfurter observed in his dissenting opinion Dennis v. United States, 339 U. S. 162, 184, 70 S. Ct. 519, 526, 94 L. Ed. 734, 749 (1950), “. . . there is no greater inequality than the equal treatment of unequals.” What the Equal Protection Clause does command, however, is that distinction between classes of persons must “.. . have some relevance to the purpose for which the classification is made.” Baxstrom v. Herold, supra at 111, 86 S. Ct. at 763, 15 L.Ed.2d at 624. See also Bush v. Director, 22 Md. App. 353, 367, 324 A. 2d 162, 171, cert. denied, 272 Md. 745 (1974). The law is, as Mr. Justice Douglas penned in Norvell v. Illinois, 373 U. S. 420, 423, 83 S. Ct. 1366, 1368, 10 L.Ed.2d 456, 459 (1963), that, “Exact equality is no prerequisite of equal protection of the laws within the meaning of the Fourteenth Amendment.”

In McGowan v. Maryland, 366 U. S. 420, 425-26, 81 S. Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961), aff'g McGowan v. State, 220 Md. 117, 151 A. 2d 156 (1959), the Court said:

“Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

See also Matter of Trader, 272 Md. 364, 386-87, 325 A. 2d 398, 410 (1974).

Applying the test of Reed and McGowan to the instant case, we note that in a motion picture theatre there is not ordinarily any necessity for an employee, except the projectionists, to handle the film. In fact, it is highly doubtful that anyone other than the projectionist comes in contact with the film itself, and even his contact is limited. A seller of books and magazines can hardly make a sale without in some manner coming into physical contact with the item sold. Furthermore, while controls may be placed so as to regulate the age of all who enter the theatre to see the film, no such controls are present when obscene material, such as the magazine in the instant case, is once removed from the seller’s premises. Patently, it is unlikely that a film will be transported from the motion picture establishment so as to become available for viewing by juveniles.

The legislature is afforded the widest discretion in determining which evil it seeks to ferret out of society. It may attack some and let others stand, recognizing that an assault mounted on a broad front against all evil might fall short, while a cannonade directed toward a smaller manifestation of evil would meet with more success. Such judgment on the part of a legislative body “. .. is given the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable rather than arbitrary and invidious.” McLaughlin v. Florida, 379 U. S. 184, 191, 85 S. Ct. 283, 288, 13 L.Ed.2d 222, 228 (1964). See also Bowie Inn v. City of Bowie, 274 Md. 230, 335 A. 2d 679 (1975); Bush v. Director, supra.

We think section 418 to be constitutional in that there is a rational basis for the legislative distinction between employees of bookstores and employees of motion picture theatres. So long as there is a rational basis for the distinction, the statute is valid. Eisenstadt v. Baird, 405 U. S. 438, 92 S. Ct. 1029, 31 L.Ed.2d 349 (1972); Dandridge v. Williams, 397 U. S. 471, 90 S. Ct. 1153, 25 L.Ed.2d 491 (1970); Prince George’s County v. McBride, 268 Md. 522, 302 A. 2d 620 (1973); Administrator v. Vogt, 267 Md. 660, 299 A. 2d 1 (1973). Giant of Maryland, Inc. v. State’s Attorney, 267 Md. 501, 298 A. 2d 427, appeal dismissed, 412 U. S. 915, 93 S. Ct. 2733, 37 L.Ed.2d 141 (1973), appeal after remand, 274 Md. 158, 334 A. 2d 107 (1975); Bush v. Director, supra; Hughes v. State, 14 Md. App. 497, 287 A. 2d 299, cert. denied, 409 U. S. 1025, 93 S. Ct. 469, 34 L.Ed.2d 317 (1972); Dean v. State, 13 Md. App. 654, 285 A. 2d 295 (1971).

We repeat what Chief Judge Murphy said for the Court of Appeals in Matter of Trader, supra at 399, 325 A. 2d at 416-17:

“Of course, in evaluating challenges under the equal protection clause, we do not sit as a ‘super legislature or a censor.’ Salsburg v. Maryland, . . . 346 U.S. at 550. ... ‘To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 288 U. S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730 (1913). In other words, if legislation is constitutional, the wisdom of it is beyond the purview of the Courts. Bruce v. Director, Chesapeake Bay Aff., 261 Md. 585, 276 A. 2d 200 (1971).”

Moreover, as in Trader, there is nothing in the record before us to show that legislative distinction between employees of theatres, section 417 (2), and of other business establishments, section 418, is arbitrary, unreasonable, discriminatory, or unrelated to a valid State objective. The .. constitutionality is presumed in the absence of a clear and convincing showing by the party assailing the legislative classification that it does not rest upon any Reasonable basis, but is essentially arbitrary.” Matter of Trader, supra, 272 Md. at 400, 325 A. 2d at 417. Wheeler did no more than point to the phraseology of sections 417 and 418 and concluded that on their face they denied equal protection. On their face, they do not, for the reasons we have already stated.

Arguments of counsel that statutes discriminate are not evidence of unlawful discrimination. Wheeler failed to show by clear and convincing evidence that there is no rational basis for the difference in treatment between section 417 and section 418.

We hold, on the basis of the record before us, that Wheeler was not denied equal protection of the law, and that Md. Ann. Code art. 27, § 418 is constitutional.

SCIENTER

Judge Moylan, for this Court in Woodruff v. State, 11 Md. App. 202, 273 A. 2d 436 (1971), made clear that in order for a conviction under section 418 to be sustained, scienter on the part of the accused must be shown by the State. Such knowledge may, however, be either direct or indirect, and general as well as specific. There is no requirement that the State undertake the impossible by endeavoring to prove that a defendant in an “.. . obscenity case has personally read from beginning to end all of the material offered by him for sale.” Id. at 228, 273 A. 2d at 450.

Md. Ann. Code art. 27, § 417 (4) defines “knowingly” as “having knowledge of the character and content of the subject matter.” Such a definition satisfies, constitutionally, the scienter element of an obscenity crime. Contrary to what Wheeler asserts, the accused need have no knowledge that the offending material is itself obscene, as that determination is a question of law. Rosen v. United States, 161 U. S. 29, 41-42, 16 S. Ct. 434, 438, 40 L. Ed. 606, 610 (1896).

More recently, Mr. Justice Rehnquist, speaking for the. Court in Hamling v. United States, 418 U. S. 87, 123, 94 S. Ct. 2887, 2910-11, 41 L.Ed.2d 590, 624 (1974), reiterated:

“It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law.”

See also Ginsberg v. New York, 390 U. S. 629, 88 S. Ct. 1274, 20 L.Ed.2d 195 (1968); Mishkin v. New York, 383 U. S. 502, 86 S. Ct. 958, 16 L.Ed.2d 56 (1966); Smith v. California, 361 U. S. 147, 80 S. Ct. 215, 4 L.Ed.2d 205 (1959).

Whether a sale is made with knowledge of the character and content of the subject matter is determined by the totality of the circumstances, and not, as appellant argues, by proving that appellant actually read the matter which turned out to be obscene. This rule is well delineated in Woodruff v. State, supra at 228, 273 A. 2d at 450-51.

We believe the evidence adduced by the State was sufficient, if believed, as it obviously was, for the jury reasonably to infer that Wheeler knew or had notice of the contents of the magazine. By his sale of the matter, Wheeler assumed responsibility for it and must abide the consequences.

Judgment affirmed.

Costs to be paid by appellant.

      . Qualified as an Associate Judge of this Court, July 9, 1976.

      . Miss Lovelace became well-known because of her participation in the controversial motion picture “Deep Throat.”

      . While some may describe it as “earthy,” we view it as “mud,”

      . Lucretius [Titus Lucretius Carus], De Rerum Natura, Book IV, p. 637 (C, Bailey trans.l.
      D.H. Lawrence in Pornography and Obscenity 5 (1929) stated it another way: “What is pornography to one man is the laughter of genius to another.”

      . We note that Wheeler did not testify at the trial on the merits, although he did so at the hearing on the motion to suppress. At that time, Wheeler said he had no knowledge of the content of the magazine. He further stated that, in addition to the type of material described above, the store sold Reader’s Digest and Life, and that both were on display. If indeed Life was sold at the store, it would of necessity have been back issues because Life ceased being a periodical in 1972.


author: Liss, J.,

text:
    DONALD RAY WATSON v. STATE OF MARYLAND
    [No. 740,
    September Term, 1976.]

      Decided March 16, 1977.

      The cause was argued before Powers, Moore and Liss, JJ.

      Gerald A. Kroop, Assigned Public Defender, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Thomas Morrow, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

The appellant, Donald Ray Watson, was convicted at a court trial by Judge Edward A. DeWaters of robbery with a deadly weapon and use of a handgun. It is from those judgments that this appeal is filed.

The case arises out of an armed robbery which occurred in Baltimore County on the afternoon of January 5, 1976. Ms. Gertrude Libowitz, office manager for Bond Distributing Company, had just returned from the bank to the parking lot adjoining her employer’s building when she was accosted by two men — one a tall man armed with a gun, the other, shorter in height — who ordered her to get back into the car. She refused and the taller man pushed her against the car knocking off her glasses. He then reached into the car and grabbed her purse and two empty bank bags which she had picked up at the bank. The two robbers then got into a car which was some 40 or 50 feet away from Ms. Libowitz’s car, and a third man drove them away from the scene. Ms. Libowitz had the presence of mind to note the license tag of the getaway vehicle and the police were called. She gave the investigating officer a description of the persons involved in the incident and the information concerning the car.

Later that same day Donald Ray Watson, the appellant, was arrested. The appellant did not raise the issue of probable cause for the arrest at the trial below nor was the issue raised in this appeal.

Detective John W. Hopkins of the Baltimore County Police Department gave Watson his Miranda warnings, advised him of the reason for his arrest and ultimately transported him to police headquarters. At police headquarters Detective Hopkins called the appellant’s mother, explained why her son was being held and that he would be charged. Mrs. Watson asked whether her son needed a lawyer and the detective replied in the affirmative. Hopkins then told Watson that he was hunting for three suspects and that if Watson told the truth, he, Hopkins, would advise the state’s attorney of Watson’s cooperation. Watson then gave a statement to Hopkins in which he said that his mother had left for work at 6 a.m. and had left the car because she could not start it. At about 12:15 p.m. he persuaded a friend to give the car a “hot shot” and the appellant left the keys in the car, the motor running, and when he returned the car had been moved. He walked around the neighborhood and located the car in an apartment house parking lot three or four blocks away from his home. He was just driving the car off the lot when the police stopped him. Over objection the appellant’s motion to suppress this statement was denied. No issue as to the admissibility of this statement was raised on this appeal.

In the interim, the appellant employed counsel who represented the appellant in the trial below and on appeal. A second preliminary hearing was scheduled, and at this hearing Detective Hopkins suggested to defense counsel that he was not sure of the appellant’s involvement in the robbery and that it might be useful if the appellant would submit to a polygraph test.

Defense counsel discussed the suggestion with the accused and he agreed to take the test. Counsel advised his client not to give any statements beyond that required by the polygraph examination and instructed Detective Hopkins not to question his client after the completion of the test. The detective agreed to call defense counsel after the examination and let him know the result of the test.

A few days later the appellant took the test and was advised by the examiner that he had failed it. The appellant then advised the examiner that he wanted to talk to Detective Hopkins. Hopkins attempted to reach appellant’s defense counsel by telephone on two occasions, but he was unable to do so. He told this to the appellant and then stated, “I understand you have something to tell me, but, first of all, I’m going to read you your rights again.” Hopkins testified that he advised the appellant of each of his rights and that appellant stated he understood them. The appellant said that he wanted to talk to Hopkins because he “had something to get off his chest.”

The appellant took the stand and testified that he did not request to see Hopkins and that he gave Hopkins no statement at all. The trial court ruled that the appellant’s oral statement allegedly made after the polygraph examination was admissible into evidence. In that statement appellant allegedly admitted to being with the two men who fobbed Ms. Libowitz, but he denied knowing that they intended to commit the robbery.

The sole question raised by the appellant on this appeal is whether, under all the circumstances, the inculpatory statement made by the accused was the product of a free and unconstrained will which had not been overborne or compelled. We believe the statement was voluntarily made after the accused had been fully advised of his rights and we shall affirm.

The appellant suggests five grounds as the basis for his contention that the statement given to Officer Hopkins was not a free and voluntary statement made by the accused after he had been advised of his rights under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), and had knowingly waived those rights. The first and third grounds will be considered together because they essentially allege the same basis for error on the part of the trial court. The appellant suggests that the statement was involuntarily made by him as a result of the coercive atmosphere generated by the lie detector examination. Johnson v. State, 31 Md. App. 303, 305, 355 A. 2d 504, 506 (1976), is dispositive of this contention. In that case Judge Lowe for this Court in discussing a similar factual situation said:

“It is apparent that the use of the deception testing device was intended to produce a psychological effect upon the accused in order to obtain the relevant facts if known by appellant. Appellant’s expressed reason for confessing does not gainsay the test’s effectiveness. It is clear, however, that the use of such a procedure for that purpose would not as a matter of law require the exclusion of a confession so obtained. .. .” (Citations omitted)

We are not impressed with his contention that the polygraph examination undermined his belief in his own innocence and his ability to assert that innocence. The appellant admits that he voluntarily agreed to take the lie detector test. He argues, however, that once he was advised that he had failed the polygraph test the adverse psychological effect made it impossible for him to exercise his free and unconstrained will, and that any waiver of his rights could not have been voluntarily and intelligently made. We point out, however, that even under the burden of his alleged hopeless position, occasioned by his failing of the test, the statement given to Officer Hopkins was at least partially exculpatory. While the accused admitted being with the perpetrators of the robbery, he maintained that he had no knowledge that a robbery was going to be committed. Such an ingenious statement is hardly to be characterized as that of an individual who does not grasp the meaning of his right to counsel and is therefore incapable of voluntarily waiving that right. In any case, the trial court was charged with the responsibility of considering the evidence and determining whether the State had met its burden of proof in establishing beyond a reasonable doubt that the statement was freely and voluntarily made, and that the accused’s Miranda rights were intelligently waived. It evidenced its conclusion as to voluntariness and waiver when it entered the guilty verdicts.

The appellant next argues that the statement was improperly admitted into evidence because it was made in violation of his right to counsel. He testified that he had asked for his attorney before giving the final statement to the police. Officer Hopkins stated that before he took the statement from the appellant he again read to him his Miranda rights which included the right to counsel and the right not to answer any questions. The officer denied that Watson had .asked for his lawyer and stated that after the Miranda rights had been reread to the appellant, “[H]e understood, and he wanted to talk with me, he wanted to get something off his chest.” This conflict in the testimony raised an issue of fact to be determined by the trier of the facts who is the judge of the credibility of witnesses. Williams v. State, 22 Md. App. 714, 325 A. 2d 427 (1974); Szewczyk v. State, 7 Md. App. 597, 256 A. 2d 713 (1969); Watson v. State, 6 Md. App. 134, 250 A. 2d 311 (1969). The trial court believed the officer, and upon our own independent review we agree.

The appellant’s final arguments may be combined into the contention that once an accused is represented by counsel he cannot be questioned out of counsel’s presence absent a waiver by the accused in the presence of counsel. Appellant suggests that ethically and morally it was improper for the officer to take a statement from him when he knew that counsel had cautioned appellant not to do anything other than answer the questions of the polygraph examiner. Appellant is on untenable ground legally as well as morally and ethically.

The right to have counsel present during an interrogation is a right of the defendant and not a right of defendant’s counsel. If a waiver occurs, it is the accused’s waiver of his right to counsel which must be determined. We believe the trial court was correct when it stated:

“Now simply because one has an attorney, that does not mean that he cannot ignore the advice of counsel. It does not mean that he cannot call the police and ask to give a statement, and the testimony of Detective Hopkins is that this is what occurred, that he did, again, advise him of his rights, and that a statement was given, and I accept the testimony of Detective Hopkins . . . .”

Sabatini v. State, 14 Md. App. 431, 287 A. 2d 511 (1972), cert. denied, 265 Md. 742 (1972); Lamb v. Commonwealth, 227 S.E.2d 737 (Va. 1976).

In the recent case of State v. Blizzard, 278 Md. 556, 366 A. 2d 1026 (1976), rev’g, Blizzard v. State, 30 Md. App. 156, 351 A. 2d 443 (1976), Judge Smith speaking for the majority of the Court discussed the conflict which has arisen in the interpretation of the holdings of the Supreme Court in Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199, 12 L.Ed.2d 246 (1964), and McLeod v. Ohio, 381 U. S. 356, 85 S. Ct. 1556, 14 L.Ed.2d 682 (1965). He pointed out that the minority view holds that:

“[0]nce a criminal defendant has either retained an attorney or had an attorney appointed for him by the court, any statement obtained by interview from such defendant may not be offered into evidence for any purpose unless the accused’s attorney was notified of the interview which produced the statement and was given a reasonable opportunity to be present.”

United States ex rel. O’Connor v. New Jersey, 405 F. 2d 632 (3rd Cir. 1969), cert. denied, 395 U. S. 923 (1969).

The majority of this country’s courts, however, have adopted the position that Massiah does not taint all post-indictment statements made by a defendant without the presence of his counsel. As was stated in United States v. DeLoy, 421 F. 2d 900, 902 (5th Cir. 1970), “Police officers are not made constitutionally deaf to the uncoerced, insistent and untricked statement of a properly warned defendant.”

After a thorough analysis of the conflicting cases, the Court of Appeals reached the conclusion that Maryland would follow the majority and hold that in the absence of coercion or trickery, which would of themselves negate complete voluntariness, a volunteered statement given in the absence of defendant’s counsel is admissible.

In this case the accused chose to ignore the advice of his counsel. Once advised that he had failed the polygraph test it might well have appeared to the accused that it was in his own self-interest to offer an explanation for his presence at the scene with the other participants in the robbery. The trial court found that the statement made by the appellant was his free and voluntary statement made after an intelligent waiver of his right to counsel. The record sustains that conclusion.

Judgments affirmed.

Costs to be paid by appellant.

      . At argument counsel agreed that appellant did in fact fail the polygraph test.


author: Moore, J.,

text:
    MARGARET M. TOLAND v. STATE BOARD OF EDUCATION
    [No. 741,
    September Term, 1976.]

      Decided March 17, 1977.

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

      Charles W. Bell and Michael J. Ragland, with whom were Bell & Ragland, P.A. on the brief, for appellant.

      Robert S. Bourbon for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal involves the discharge, pursuant to Md. Code, Art. 77, § 114 (1957, 1975 Repl. Vol.), of a Montgomery County schoolteacher as a result of formal action by the Montgomery County Board of Education and the State Board of Education, which was affirmed by the Circuit Court for Montgomery County. The County Board recommended dismissal on grounds of incompetence in the classroom, rejecting the findings and recommendations of its hearing examiner. At the State level, the hearing examiner found that appellant was highly competent as a teacher but that her record of absences justified her discharge, and the State Board of Education adopted his findings and recommendations. Upon appeal to the Circuit Court for Montgomery County, it was found that appellant’s absences were, in part, explained by evidence, received for the first time at the judicial hearing and never considered in the prior proceedings, of 49 days’ approved leave during the summer vacation period of 1972. Nonetheless, the court held that there was evidence before the State Board of appellant’s incompetence as a classroom teacher which justified her discharge, quite apart from the issue of absenteeism. The State Board had, in the court’s view, decided the case on “too narrow a premise.” It is our conclusion, upon our consideration of the record and of the legal issues involved, that the court erred, and that the proceedings should be remanded to the State agency for consideration of the evidence adduced before the court.

I

Appellant, in her early 40’s, has been an elementary schoolteacher since 1956 and entered upon her employment in the Montgomery County School System in 1961, teaching the second through the fourth grades. In 1966, she was assigned to William Tyler Page School in Silver Spring, where she taught primarily second grade pupils. Periodical evaluations of her teaching ability were extremely favorable until November, 1972, after a new principal had been named to the school in February of that year. In November, 1972, the new principal found appellant “unsatisfactory” in certain evaluation areas and in January, 1973, he placed her on the “Mid-year Report,” noting, inter alia, “I believe that Miss Toland demonstrates a low level of teaching competence for a person who has 15 years’ of experience.. ..” Thereafter, on November 13, 1973, the principal recommended that she be dismissed as a teacher after evaluating her as unsatisfactory in four out of five evaluation areas. The then Superintendent adopted the recommendation of the school principal and the appellant was formally notified of her dismissal on March 26, 1974.

Upon her request for a hearing, the County Board of Education designated Harry J. Lambeth, Esq. as a hearing examiner and proceedings were conducted before him on June 14, 22 and 26, 1974. He filed a 19-page detailed report on July 26, 1974, in which it was found that appellant was “not an incompetent teacher and that she has not been shown to have wilfully neglected her duties.” It was the recommendation of the examiner that the Board of Education “reject the recommendation of its Superintendent of Schools; and that the Respondent be reassigned to a new school, preferably one with a more traditional philosophy of education.” In the course of the examiner’s report, it was noted that testimony was heard briefly from the Superintendent, as well as from the principal and an area supervisor; and that appellant testified in her own behalf. In addition, the hearing examiner stated that “Miss Toland’s success as a teacher brought at least ten parents to the hearing to explain how she helped their children.”

In August, 1974, in accordance with Board procedures, counsel for the Superintendent and the teacher presented oral argument to the six-member County Board of Education, one member being absent. In a written decision and order dated September 11, 1974, it was ordered that appellant be dismissed as a teacher in the County School System on grounds of incompetence in accordance with the statute. One of the five members dissented.

An appeal from the Board’s decision was duly made to the State Board of Education which appointed Frank A. DeCosta, Esq. as hearing examiner. By agreement of the parties, no additional testimony was given and oral argument was presented on January 14, 1975. After the submission of briefs in February and March, 1975, further oral argument was held before Mr. DeCosta on April 18, 1975. In his findings of fact Mr. DeCosta observed in part:

“Although the evaluation of Dr. Stufft [the principal! and other administrators clearly indicates that there are a number of areas in which Petitioner can improve her teaching skills and her administrative tasks associated with her classroom teaching responsibilities, this record does not clearly establish that Petitioner either (1! lacks the requisite knowledge required to teach or (2) lacks the ability to impart that knowledge to her students. On the contrary, this record strongly suggests that Petitioner is a well-trained elementary school teacher possessing exceptional skills as a reading teacher who takes an interest in her students during and after school hours.” (Emphasis added.)

The examiner went on to point out, however, that “incompetency” may be founded upon grounds other than a teacher’s knowledge and teaching skills. In this connection, he referred to appellant’s record of absenteeism and stated:

“As an example, this record reflects that during the school year 1972-73, Petitioner was absent a total of 60 days, and there is expert testimony as to the difficulty of administering a sound and efficient educational program when regular teachers are frequently absent.”

It was the State hearing examiner’s conclusion, solely upon the evidence of Miss Toland’s absences, that the County Board had “met its admittedly heavy burden in persuasively demonstrating cause for Petitioner’s dismissal upon both the ground of ‘incompetency’ and ‘wilful neglect of duty’ ”, citing, Granderson v. Orleans Parish School Board, 216 So. 2d 643 (La. App. 1968). The State Board of Education formally adopted the “findings of fact, conclusions of law and recommendations of the hearing examiner in this case” on August 27, 1975.

Miss Toland thereupon appealed, filing an Order for Appeal pursuant to the Administrative Procedure Act, Code, Art. 41, § 244 et seq., and Maryland Rule B2, on September 26, 1975. At the court hearing, with the consent of the parties and in accordance with § 255 (e) of the Act, the court received as an exhibit on behalf of the teacher a printed form employed by Montgomery County Public Schools entitled, “Request for Leave (Short Term).” The form was dated June 5, 1972, signed by the appellant, and requested leave for the period June 19 to August 26, 1972, without salary, with the explanation, “My doctor has requested that I take the summer off to rest — medical reasons.” The form contains a recommendation for approval, dated June 5, 1972 and a final approval on June 7, 1972, for 49 days without pay.

With respect to this evidence, the lower court observed:

“The evidence admitted suggests that the petitioner had made a request that she be excused from teaching in the summer session and that this request was orally approved, but that somehow the approval was not properly recorded.”

The court went on to state its evaluation of the effect of this new evidence, saying:

“However, we do not believe that such evidence, had it been known to the State Board, would have justified the State Board in reaching any different conclusion from what it did. There was substantial evidence in the record before the County Board that the petitioner was not a competent classroom teacher, aside from her excessive absenteeism.”

And the memorandum opinion then states:

“Looking at the record as a whole, we think the State Board rightfully affirmed the decision and order of the County Board but on too narrow a premise.”

Concluding that the opinion of the State Board of Education sustaining appellant’s dismissal by the Board of Education of Montgomery County should be affirmed, the court described the scope of its review in the following language:

“Under Article 41, Section 255(g), there are eight factors which this Court should consider in reviewing the decision of the State Board of Education. Essentially, however, only the last three are pertinent to this inquiry. They deal with whether the evidence, including any de novo matter, is sufficient to support the decision of the Board or whether that decision was arbitrary or capricious. In answering these questions, we must bear in mind that it is not the function of this Court to substitute its judgment for that of the Board of Education. In effect, judicial inquiry is limited to deciding whether, on the record, the State Board could reasonably make the finding it did.” (Emphasis added.)

II

The provisions of Article 41, § 255 (g) pertaining to the scope of judicial review in administrative proceedings, to which the court referred, are as follows:

“(g) Affirmance, remand, reversal or modifica tion of decision. — The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or
(6) Against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency and including de novo evidence ll taken in open court; or
(7) Unsupported by the entire record, as submitted by the agency and including de novo evidence taken in open court; or
(8) Arbitrary or capricious.”

The trial court succinctly stated the rule of law that a reviewing court may not substitute its judgment for that of the State agency, a proposition which received comprehensive study and restatement by Judge Powers of this Court in the recent case of Commissioner, Baltimore City Police Department v. Cason, 34 Md. App. 487, 368 A. 2d 1067 (1977). There, a Departmental Board of the Baltimore City Police Department had recommended the discharge of a City Police Sergeant, and the Baltimore Police Commissioner, Donald D. Pomerleau, subsequently ordered that the sergeant be terminated. On appeal, the Baltimore City Court reversed. Upon the subsequent appeal by the Commissioner to this Court, it was held that the Baltimore City Court committed error by the substitution of its assessment of the credibility of witnesses for that of the Trial Board. Judge Powers, in the course of his opinion, pointed out that our consideration of the case had to be based upon the evidence before the Trial Board and not upon the action of the Baltimore City Court “which the appellee, irrelevantly, characterizes as not clearly erroneous.” Id. at 502. The opinion went on to point out:

“A reviewing court may, and should, examine any conclusion reached by an agency, to see whether reasoning minds could reasonably reach that conclusion from facts in the record before the agency, by direct proof, or by permissible inference. If the conclusion could be so reached, then it is based upon substantial evidence, and the court has no power to reject that conclusion.
“A reviewing court may, and should, examine facts found by an agency, to see if there was evidence to support each fact found. If there was evidence of the fact in the record before the agency, no matter how conflicting, or how questionable the credibility of the source of the evidence, the court has no power to substitute its assessment of credibility for that made by the agency, and by doing so, reject the fact.” Id. at 508.

As the opinion discloses, the City Court on appeal accepted the testimony of the sergeant in his own defense rather than the testimony of two witnesses who were in effect his accusers. The opinion of this Court concluded:

“It was the responsibility of the Trial Board and solely of the Trial Board, to find the true facts by assessing the credibility of the conflicting evidence on those facts.”

In the instant appeal, the State Board hearing examiner recommended the appellant’s dismissal solely on the basis of evidence of her absences and it was this recommendation upon which final action was taken by the State Board of Education. The evidence with respect to absences was therefore of critical importance. In this connection, the “de novo evidence taken in open court” (§ 255 (g), supra) showed that the record before the administrative agency did not contain the request for leave made by the appellant and approved by the local Board in the 1972-73 school year for almost the entire summer vacation period, or a total of 49 days. The importance of this omission is that appellant’s leave record for the period 1971 through 1974 should have read:

School Year Total Lost
1971- 1972 34.0
1972- 1973 11.0
1973- 1974 6.0

Instead, the record before the hearing'examiner showed:

School Year Total Lost
1971- 1972 34.0
1972- 1973 60.0
1973- 1974 6.0

The significance of the corrected record, as appellant points out in her brief, is that the appellant, after being cautioned by her principal with respect to absences of 34 days in the 1971-72 school year, reduced the absences the following year to 11 days and in the subsequent year to 6 days. That this could have been a critical factor in the evaluation of her appeal by the hearing examiner is evident from the statement in his finding of facts that, “Annual sick leave totalled I7V2 to 35 days each year from 1968 to 1974. Petitioner’s record reveals 47 days absent without pay in 1972-73 and a total of 60 dwys ‘lost’ during that year.” (Emphasis added.)

It is manifest, from the statements of the court below previously quoted, that the judge disregarded the additional evidence relating to absenteeism, and found that there was substantial evidence of record that appellant was not a competent classroom teacher, quite apart from the matter of appellant’s absences. This, however, was not the basis for the decision appealed from. The net result is that the reviewing court substituted its judgment twice for that of the agency whose decision was being challenged. First, it decided how the agency would have viewed the new evidence and, second, it decided that the agency’s action was correct for reasons not assigned in the order appealed from.

In the exercise of its discretion and, in accordance with the provisions of § 255 (e) heretofore quoted (n. 3), the court should either have had the “additional evidence” received and considered by the State Board of Education or should have remanded the proceedings to the Board for this purpose. The “de novo evidence” here involved was not of a merely cumulative nature such as would justify a reviewing court to find that the order appealed from was based upon substantial evidence. On the contrary, this evidence tends to undermine the agency’s findings with respect to the sole basis for appellant’s dismissal.

It is our judgment that the State Board of Education should, under these circumstances, have the opportunity to evaluate the effect of the evidence received in the court proceedings below in the light of its prior determination that appellant’s record of absences justified her dismissal. Accordingly, pursuant to the provisions of Article 41, § 255 (g\ we reverse the decision of the trial court and"remand for further proceedings.

Order appealed from reversed; case remanded to trial court with instructions to remand to State Board of Education for further proceedings; appellee to pay the costs.

      . The pertinent provisions of this section are:
      “Any county board of education may, on the recommendation of the county superintendent of schools suspend or dismiss any teacher, principal, supervisor,, assistant superintendent, or other professional assistant for immorality, misconduct in office, insubordination, incompetency, or wilful neglect of duty, provided that the charge or charges be stated, in writing, to such person and that such person be given an opportunity to be heard by the said board of education upon not less than 10 days’ notice; that such person be allowed to bring counsel and witnesses, if so desired; and provided further that an appeal from the board’s decision may be made to the State Board of Education."

      . Teachers who have served more than two years have a right to continuous tenure and may be removed only for cause. Parker v. Bd. of Educ., 237 F. Supp. 222 (D.Md. 1965), aff'd, 348 F. 2d 464 (4th Cir. 1965), cert. denied, 382 U. S. 1030 (1966).

      . The matter of “additional evidence” is governed by § 255 (e) which provides:
      “(e) Additional evidence. If, before the date set for hearing, application is made to the court for leave to present additional evidence on the issues in the case, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken in open court or before the agency upon such conditions as the court deems proper. In cases in which the additional evidence is taken before the agency, it may modify its findings and decision by reason of the additional evidence and shall file with the reviewing court, to become a part of the record, the additional evidence, together with any modifications or new findings or decision.”

      . It appears, from the appellant’s exhibit received below, that this figure should have been 49 instead of 47.

      . In reviewing an agency’s action, the reviewing court, in reaching its judgment as to whether there is substantial evidence on the record to support the agency’s decision, must consider all of the evidence that was before the agency, as well as any de novo evidence.' See County Federal Savings & Loan Assoc. v. Equitable Savings & Loan Assoc., 261 Md. 246, 274 A. 2d 363 (1971); Code, Art. 41, § 255 (g) (6).


author: Lowe, J.,

text:
    MARTIN RUBIN v. IRVING GRAY et al.
    [No. 778,
    September Term, 1976.]

      Decided March 17, 1977.

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

      Paul T. Stein, with whom were Helfand & Stein, P.A. and Barry Toff and Silver & Freedman on the brief, for appellant.

      Howard G. Goldberg, with whom were Smith, Somerville & Case on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

When a party plaintiff failed to answer defendants’ interrogatories for nearly 13 months after they were filed, during which time he: ignored repeated written requests to do so; violated agreements to comply within extended deadlines; failed, upon order of court, to show cause why judgment non prosequitur should not be entered; and, after dismissal, was unable to convince the court to reconsider, we can find no abuse of the trial judge’s discretion in that denial. Our decision is reenforced by the failure of the appellant to have yet filed the answers, as revealed by the record. The authority to impose this “gravest of sanctions” found in Md. Rule 422 b. and c. 1. is not limited to wilful or contemptuous failures to answer, but may be imposed for a deliberate attempt to hinder or prevent effective presentation of defenses or counterclaims, or for stalling in revealing one’s own weak claim or defense. See Lynch v. R. E. Tull & Sons, Inc., 251 Md. 260, 261-262.

The facts and circumstances indicate that several courteous attempts by appellees to obtain the answers were ignored. When sanctions were threatened by appellees, compliance was promised on prescribed dates. Those promises were broken and further requests for answers were also ignored. Before dismissing the suit, the court provided appellant an opportunity to justify or excuse the failure to comply (which in itself decries an abuse of discretion, see Miller v. Talbott, 239 Md. 382), but appellant was unable to do so. The judge then entered a judgment non prosequitur from which appellant did not appeal. He chose instead to move the court to reconsider and, upon hearing before a different judge, was again denied relief.

Our review of the record reveals a justifiable exercise of discretion under Rule 422 by virtue of the time and circumstances in this case. Indeed, appellant’s own argument at the hearing on the motion to reconsider justified the dismissal. Trial counsel for appellant (who does not represent him upon appeal here) admitted that appellant’s failure to answer was a deliberate tactical “stall”:

“Your Honor, if anyone is the blame in this case, it is me. And I would like to tell you why. During this period, including the specific period in which Mr. Goldberg did make demands upon me to prepare and submit answers to interrogatories, he was aware that Doctor Rubin was out of the country. But, of course, he is representing a client and this matter was dragging on.
Now, the original — When settlement negotiations came to a point whereby I felt that it would be of no further benefit to stall the proceedings, I notified Mr, Goldberg in November that I don’t believe we are going to be able to settle this case now, and although Doctor Rubin would still be out of the country for an extended period of time, I will prepare a format answers to interrogatories.” (Emphasis added).

The case most heavily relied upon by appellant, Lynch, supra, clearly indicates that a failure to respond to interrogatories as a deliberate stall is a sufficiently flagrant abuse to justify dismissal. We agree.

Judgment affirmed.

Costs to be paid by appellant.

      . We will treat the motion to reconsider as a motion to strike the final judgment under Md. Rule 625 a the ruling on which is in the nature of a final judgment and therefore appealable. First Federated Com. Tr. v. Comm’r, 272 Md. 329.


text:
    INSURANCE COMPANY OF NORTH AMERICA v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    [No. 799,
    September Term, 1976.1

      Decided March 17, 1977.

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

      Richard C. Murray, with whom was John H. Zink, III, on the brief, for appellant.
    Submitted on brief by William A. Hegarty for appellees.

      . The policy provided in pertinent part that coverage was afforded to “the Named Insured and any resident of the same household____”

   Gilbert, C. J.,

delivered the opinion of the Court.

Neither the Court of Appeals nor this Court has heretofore been called upon to decide whether Maryland shall follow the strict or conversion rule, the moderate or minor deviation rule, or the liberal rule, in construing the omnibus clause of automobile insurance policies. The appellate courts of this State have not had that issue put squarely to them so that there has been no need to favor any particular rule over another. This appeal, however, calls upon us to take a stand as to which route we shall hereafter journey in interpreting omnibus clauses.

The factual setting from which the issue arises is as follows: An automobile described in an Insurance Company of North America (INA) policy issued to Janet M. Weiner was involved in an accident with Charlotte S. Bauer. At the time of the impact, Richard L. Miller, Jr., was driving the Weiner vehicle and Mrs. Weiner’s son, Melvin Urbanski, was a passenger in the car. Under the INA policy, Urbanski was an “insured” for purposes of bodily injury and property damage liability coverage because he was a resident of the same household as the “Named Insured.”

Urbanski’s status at the time of the accident was that of passenger. Although the scope of permission granted by Urbanski’s mother regarding the use of the car was not explicitly brought out at the hearing, it is clear that Mrs. Weiner had told her son that he was not to let anyone else drive the car, and the hearing judge found as a fact that Urbanski was admonished not to let anyone else drive the vehicle. When asked, “What sanctions would have been imposed on . .. [him] if . . . [he] violated that [restriction as to the use of the car]?”, Urbanski replied that he “.. . would have had the car taken away.” Urbanski did not obey his mother’s caveat, however, and allowed Miller to drive. Mrs. Bauer brought suit against Miller, Jr., for damages arising from the accident.

State Farm Mutual Automobile Insurance Co. (State Farm) and its insureds, Richard L. Miller and Shirley M. Miller, together with their son, Richard L. Miller, Jr., brought a declaratory judgment proceeding against INA in the Circuit Court for Baltimore County after INA refused to defend the suit against Richard L. Miller, Jr. The declaratory action sought to have INA declared the primary insurer with respect to the Bauer accident. Judge H. Kemp MacDaniel held that INA was the primary insurer.

State Farm urges upon us that INA is the proper primary carrier to defend Miller, Jr. in the Bauer claim. The INA policy provides:

“The following are Insureds under Bodily Injury and Property Damage Liability Coverage:
(a) With respect to the owned automobile,
(1) the Named Insured and any resident of the same household,
(2) any other person using such automobile with the permission of the Named Insured, provided his actual operation or (if he is not operating) his actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an Insured under (a) (1) or (2) above[.l”

State Farm, argues that the above language — specifically section (2) — places Miller, Jr. in the position of being an Insured of INA, relying on Maryland Indemnity Insurance Co. v. Kornke, 21 Md. App. 178, 319 A. 2d 603 (1974).

INA, on the other hand, asserts that the Komke case is inapposite because (1) the policy provisions differ, and (2) coverage depends upon the “total facts,” and the facts in the instant case differ from those in Komke.

A comparison of the INA policy provision and the one involved in Komke reveals that the clauses are indeed different.

INA Policy
“. . . any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.”
Komke Policy
“... any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.” 21 Md. App. at 181, 319 A. 2d at 605.[]

The omnibus clause in Komke extended coverage to any person “legally responsible” for the use of the automobile, provided that the actual use was with the permission of the named insured. The second permittee in Komke was covered because, as the operator of the vehicle, he was “legally responsible” for the use, although the actual use was by the first permittee. The INA policy in question here does not contain such a phrase. Ergo, the second permittee is covered by INA only if using the Weiner automobile with the express or implied permission of the owner. Federal Insurance Co. v. Allstate Insurance Co., 275 Md. 460, 471, 341 A. 2d 399, 406 (1975).

Mrs. Weiner, the Named Insured, expressly forbade her son to allow anyone else to use the car, so express permission is not a factor in this case.

We now consider the presence vel non of implied permission. 7 Am. Jur. 2d, Automobile Insurance § 117 (1963), states:

“The ‘general rule’ that a permittee may not allow a third party to ‘use’ the named insured's car has generally been held not to preclude recovery under the omnibus clause where (1) the original permittee is riding in the car with the second permittee at the time of the accident, or (2) the second permittee, in using the vehicle, is serving some purpose of the original permittee. The courts generally reason that under such circumstances the second permittee is ‘operating the car for the ‘use’ of the first permittee and that such ‘use’ is within the coverage of the omnibus clause. While some courts apparently would limit this qualification of the general rule to situations where the named insured has not specifically forbidden, driving by a third person, it is more .generally held that operation by a third person under such circumstances falls uñthin the protection of the omnibus clause even where such operation is specifically forbidden by the named insured.” (Footnotes omitted.) (Emphasis supplied.)

At the outset, we indicated that the constructions placed upon the automobile insurance policy omnibus clauses fall into three categories: 1) the strict or conversion rule, 2) the moderate or minor deviation rule, and 3) the liberal rule.

THE STRICT OR CONVERSION RULE

This rule contemplates that the permitted use of the vehicle will not deviate from that contemplated by the parties at the time of the granting of permission. It contains three elements, namely, 1) duration of permitted use must not have expired; 2) the use must occur within the territory specified or contemplated by the parties; and 3) the particular use made of the vehicle at the time of the accident must be that which was specified or contemplated. If any of the three elements is non-existent, the use is unauthorized, i.e., a conversion to the use of the bailee has occurred and coverage under the policy is not afforded. 7 Am. Jur. 2d, Automobile Insurance § 120 (1963). See also Johnson v. American Automobile Insurance Co., 131 Me. 288, 161 A. 496 (1932); Travelers Insurance Co. v. Greenough, 88 N. H. 391, 190 A. 129 (1937); Laroche v. Farm Bureau Mutual Automobile Insurance Co., 335 Pa. 478, 7 A. 2d 361 (1939); Eagle Fire Co. of New York v. Mullins, 238 S. C. 272, 120 S.E.2d 1 (1961); Annot., 5 A.L.R.2d 626 (1949); Annot., 126 A.L.R. 552 (1940); Annot., 106 A.L.R. 1260 (1937); Annot., 72 A.L.R. 1403 (1931).

THE MODERATE OR MINOR DEVIATION RULE

As the name suggests, this rule takes an intermediate position between the strict and the liberal views. It modifies the strict rule “.. . to the extent that protection [under the insurance policy] will be afforded the bailee if the use made by him is not a gross violation of the terms of the bailment.” 7 Am. Jur. 2d, Automobile Insurance § 122 (1963). Such a rule contemplates a case-by-case approach as to whether the omnibus clause will be held to apply.

The extent of the deviation from the permitted use must be evaluated to determine whether “... the deviation [from the authorized bailment] was ‘minor’ or ‘material.’ ” Id. Generally, in master-servant relationships, the permitted use is more strictly construed than where the vehicle is loaned for social purposes and the borrower is a relative or friend. Id. See also Jordan v. Shelby Mut. Plate Glass & Casualty Co., 142 F. 2d 52 (4th Cir. 1944); Winterton v. Van Zandt, 351 S.W.2d 696 (Mo. 1961); Jernigan v. State Farm Mutual Automobile Insurance Co., 16 N. C. App. 46, 190 S.E.2d 866 (1972); Lloyds America v. Tinkelpaugh, 184 Okla. 413, 88 P. 2d 356 (1939); Transamerica Insurance Co. v. Signal Insurance Co., 261 Or. 390, 494 P. 2d 885 (1972).

THE LIBERAL RULE

This rule provides that if the original taking is with the insured’s consent every subsequent act, short of theft and the like, is deemed to be within the scope of the permission, irrespective of whether the use was contemplated by the bailor. The only essential ingredient is the permission in the first instance. 7 Am. Jur. 2d, Automobile Insurance § 121 (1963); Jefson v. London Guarantee and Accident Co., 293 Ill. App. 97, 11 N.E.2d 993 (1937); Arndt v. Davis, 183 Neb. 726, 163 N.W.2d 886 (1969); United States Fidelity and Guaranty Co. v. Fisher, 88 Nev. 155, 94 P. 2d 549 (1972); Small v. Schuncke, 42 N.J. 407, 201 A. 2d 56 (1964); Matits v. Nationwide Mutual Insurance Co., 33 N. J. 488, 166 A. 2d 345 (1960); Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473 (1928).

It seems to us that the liberal rule is particularly applicable when the General Assembly has adopted motor vehicle legislation patently designed to assure that the owner of a motor vehicle bear financial responsibility to those innocent victims who are injured as a result of negligence. Metz v. Universal Underwriters Insurance Co., 109 Cal. Rptr. 698, 513 P. 2d 922 (1973);. United States Fidelity and Guaranty Co. v. Fisher, supra; Matits v. Nationwide Mutual Insurance Co., supra. Maryland has enacted such legislation. Md. Ann. Code art. 66V2, Subtitle 7, § 7-101 provides in pertinent part:

“(a) .Every owner of a motor vehicle required to be registered in this State shall maintain the security required by this section with respect to each such motor vehicle owned by him throughout the period the registration is in effect. No certificate of registration shall be issued or transferred to an owner by the Administrator unless the owner or prospective owner produces satisfactory evidence that such .security is in effect.” (Emphasis supplied.)

A motor vehicle, per se, does no wrong to anyone; it is the operator of the vehicle who sets in motion the chain of events causing injury or damage. Obviously, the legislature, by requiring that the vehicle be insured by the owner, means the insurance coverage to be afforded to all who drive the vehicle, in the absence of theft and the like. We think it clear that the General Assembly of Maryland intended, by the enactment of § 7-101 (al that the courts of this State should follow the liberal rule rather than the more restrictive ones.

INA urges that American Home Assurance Co. v. Erie Insurance Exchange, 252 Md. 116, 248 A. 2d 887 (1969) is dispositive of this appeal. We do not share that view. In that case, the Court considered an omnibus clause very much akin to that in the instant case and concluded that under the circumstances of that particular case the “ ‘actual operation’ . . . was not ‘within the scope of . . . [the] permission.’ ” 252 Md. at 122, 248 A. 2d at 890.

American Home Assurance Co. v. Erie Insurance Exchange, supra, was decided by the Court prior to the enactment of Maryland’s version of a compulsory insurance law. In the light of that law, we believe American Home Assurance Co. v. Erie Insurance Exchange to be no longer apposite.

We hold that whenever a person is given permission by an insured owner to operate a motor vehicle, any subsequent use of the vehicle, by the permittee, while the vehicle remains in the possession of the permittee, is a permitted use and thus within the coverage provided by the omnibus clause of the owner’s insurance policy.

Judge MacBaniel was correct in declaring INA to be the primary insurer.

Judgment affirmed.

Costs to be paid by appellant.

      . We infer from the record that while this conflict between the two insurance carriers rages, Mrs. Bauer waits in the wings.

      . As Justice Harlan F. Stone stated in Aschenbrenner v. U.S.F. & G. Co., 292 U.S. 80, 84-85, 54 S. Ct. 590, 592, 78 L. Ed. 1137, 1140 (1934),
      “The phraseology of contracts of insurance is that chosen by the insurer and the contract in fixed form is tendered to the prospective policy holder who is often without technical training, and who rarely accepts it with a lawyer at his elbow.”

      . Section 7-103 thereof makes it a misdemeanor to operate a motor vehicle that is not covered by either a.policy of insurance in the specified amount or other form of security approved by the Administrator of Motor Vehicles.


author: Davidson, J.,

text:
    DIENER ENTERPRISES, INC. v. GERALD J. MILLER et al.
    [No. 23,
    September Term, 1976.]

      Decided April 6, 1977.

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

      Eugene P. Smith, with whom were Leonard T. Kardy and Judith D. O’Neill on the brief, for appellant.

      Thomas Penfield Jacksonr with whom were Arthur C. Elgin, Jr., and Jackson, Campbell & Parkinson on the brief, for appellees.
   Davidson, J.,

delivered the opinion of the Court.

In February, 1966, the appellant, Diener Enterprises, Inc. (buyer), and the appellees, Gerald J. Miller, et al. (sellers), entered into negotiations for the sale of an 1-1 (Light Industrial) zoned property. On 24 February 1966, the contract of sale was executed. An addendum to that contract was signed by the buyer and signed and sealed by the sellers on 1 March 1966. On 15 August 1966, the property was conveyed. In the Circuit Court for Montgomery County, the buyer sued the sellers for damages allegedly resulting from either fraud (count one) or breach of contract (count two). Judge H. Ralph Miller granted the sellers’ motion for summary judgment on both counts.

I

Fraud (Count One)

In its declaration, the buyer alleged that at various times before the conveyance of the property the sellers made certain misrepresentations, which, in pertinent part, are as follows: 1) that under the 1-1 zoning category an apartment hotel could be built “as a matter of right;” 2) that “a good and valid permit” would issue for the construction of an apartment hotel; and 3) that “no legal action had been or would be filed” to prevent such permit from issuing. It claimed that it was damaged because an apartment hotel could not be constructed on the land.

The trial court, concluding that Marathon Builders, Inc. v. Polinger, was dispositive, determined that the buyer had no right to rely upon any of those alleged misrepresentations. Assuming without deciding that Marathon establishes that a buyer of real property has no right to rely upon representations concerning the uses to which property may be put under applicable zoning and subdivision laws, that case is not dispositive. Marathon does not establish that a buyer may not rely upon a representation either that a “good and valid permit” would issue or that legal action had not or would not be filed to prevent a building permit from issuing. We shall, however, affirm on the ground that the buyer failed to show that any of the alleged misrepresentations was the Droximate cause of its injury.

The Court of Appeals and this Court have previously considered the element of causal connection in fraud cases. In Lustine Chevrolet v. Cadeaux, this Court said:

“It is well settled in Maryland that in order to recover in an action for fraud, the plaintiff must show that: 11 the representation made was false; 21 its falsity was either known to the speaker, or the misrepresentation was made with such a reckless indifference to truth as to be equivalent to actual knowledge; 31 it was made for the purpose of defrauding the person claiming to be injured thereby; 41 such person not only relied upon the misrepresentation but had a right to rely upon it in the full belief of its truth, and would not have done the thing from which the injury resulted had such misrepresentation not been made; and 51 he actually suffered damage directly resulting from such fraudulent misrepresentation.... ‘It is well settled by all the authorities that the fraud must work an actual injury on the party complaining .. ..’ ... Recently the Court of Appeals . . . explicated the concept of causal connection in fraud cases when it said:
‘One suing for fraud or deceit must establish that he sustained damage by reason of the fraud, and that his injury was the natural and proximate consequence of his reliance on the fraudulent act.’ (Citations omitted.l
Thus it is clear in Maryland that in order to recover for fraud, the plaintiff must show not only that he would not have performed the act from which the injury resulted but for the misrepresentation, but also that the fact misrepresented was the proximate cause of the injury.” (Emphasis in original. Citations omitted.)

Here, assuming that there were misrepresentations as to the then applicable zoning regulations, the existence of a valid building permit and the pendency of litigation, it would not be sufficient for the buyer to show only that it had the right to rely upon these misrepresentations and would not have purchased the property but for them. Additionally, it would have to show that any or all of these misrepresentations made it impossible to build an apartment hotel, thus causing the alleged injury.

Viewed in the light most favorable to the buyer, the facts here neither show nor support a rational inference that any or all of the alleged misrepresentations caused the buyer’s injury. The record shows that on 15 September 1965, the then owner’s application for a building permit authorizing the construction of an apartment hotel on the 1-1 zoned property was denied. On 30 November 1965, the County Board of Appeals for Montgomery County decided that an apartment hotel was a permitted use in the 1-1 zone and, in effect, required the permit to issue. On 16 December 1965, Montgomery County appealed from this decision. On 23 February 1966, Montgomery County agreed to dismiss its appeal and to issue a building permit authorizing the construction of an apartment hotel containing a maximum of 472 dwelling units. A provision of this agreement required that within 90 days a nearby property owner execute and record enforceable covenants to preserve and maintain 5.5 acres of land as open space to be used for recreational and park purposes.

On 25 January 1966, the County Council for Montgomery County enacted an ordinance which prohibited the construction of apartment hotels on land zones other than R-CBD (Multiple-Family, Central Business District Residential) unless preliminary plans had been filed by 25 January 1966, and final working plans were filed by 25 April 1966. On 1 July 1966, a building permit for the construction of an apartment hotel on the subject property was issued. At the buyer’s request, it was extended for six months from 1 January 1967.

On 18 April 1967, the County Council amended the text of the zoning ordinance to provide, in pertinent part, that permits already issued for the construction of apartment hotels in other than an R-CBD zone “shall become null and void within ninety days unless construction has proceeded beyond excavation and foundation work and the right to use such land for an apartment hotel shall be terminated.” On 28 July 1967, the buyer was notified that, because construction had not progressed to the extent required by the ordinance, its permit was “null and void” and its “right to develop this property for an apartment hotel ha[d] terminated.”

The record shows that until 18 July 1967, the buyer was in possession of a building permit which authorized construction of an apartment hotel on the subject property. Until that time, the applicable zoning regulations permitted such construction under appropriate circumstances. There had been no challenge to the validity of the permit and there had been no challenge to the County’s dismissal of its appeal. Thus, there is nothing to show that before 18 July 1967, the buyer could not have built an apartment hotel on the subject property. Consequently, the record establishes that the sole cause of the termination of the buyer’s right to build an apartment hotel was its failure to comply with the provisions of the 18 April 1967 ordinance. Under these circumstances, any misrepresentations which may have been made by the sellers cannot be regarded as the cause of the buyer’s inability to build an apartment hotel.

Subsequently, there was a challenge to the dismissal of the County’s 16 December 1965 appeal from the Board of Appeals’ 30 November 1965 decision, which had, in effect, required the issuance of a building permit for an apartment hotel on the subject property. In a letter dated 20 September 1967, the then County Attorney for Montgomery County indicated that the provision of the 23 February 1966 agreement to dismiss, which required the execution and recording of enforceable covenants within 90 days, created a condition precedent which had not been fulfilled. He asserted that the County was “no longer bound” by the agreement. More particularly, he stated that, because the condition had not been fulfilled, “Montgomery County did not and has not dismissed the appeal.” No such appeal was processed.

The County’s assertion that litigation was pending because it had not dismissed its appeal was made two months after the buyer’s right to construct an apartment hotel had terminated. Thus, “pending litigation” cannot be regarded as the cause of the buyer’s inability to build.

We hold that under the circumstances of this case, there were no facts to show a causal connection between the alleged misrepresentations and the harm suffered by the buyer. The trial court was correct in granting a motion for summary judgment.

II

Breach of Contract (Count Two)

In its declaration, the buyer alleged that the sellers breached certain express “assurances, representations and warranties.” These were, in pertinent part, essentially the same as the statements alleged to be misrepresentations in the fraud count. It again claimed that it was damaged because an apartment hotel could not be constructed on the land.

The trial court concluded that the statute of limitations barred this claim and granted the motion for summary judgment. We shall again affirm on another ground.

In order to recover upon an alleged breach of warranty, when a sale of personal property is involved, it is necessary to show that the breach was the proximate cause of the damage. Assuming without deciding that under appropriate circumstances recovery is possible for a breach of an express warranty when a sale of real property is involved, and applying the same principle, there would be no recovery here. We have previously held that the statements alleged to be misrepresentations were not the cause of the buyer’s inability to build an apartment hotel. Similarly, these same statements, even assuming that they were express warranties which were breached, did not cause the buyer’s damage. Even assuming without deciding that the statute of limitations did not bar the claim, the trial court was correct in granting the motion for summary judgment.

Judgment affirmed.

Costs to be paid by appellant.

      . 263 Md. 410, 423, 288 A. 2d 617, 624 (1971).

      . A decision which is correct for a reason other than that relied upon- by the trial court will not be disturbed on appeal. Aubinoe v. Lewis, 250 Md. 645, 649, 244 A. 2d 879, 881 (1968); Lease v. Upper Potomac River Comm., 179 Md. 543, 544, 20 A. 2d 498, 499 (1941); Robinson v. State, 17 Md. App. 451, 460, 302 A. 2d 659, 664 (1973).

      . Empire Realty Co., Inc. v. Fleisher, 269 Md. 278, 284, 305 A. 2d 144, 147 (1973); Reynolds v. Evans, 123 Md. 365, 367, 91 A. 564, 565 (1914); Lustine Chevrolet v. Cadeaux, 19 Md. App. 30, 35, 308 A. 2d 747, 750-51 (1973).

      . 19 Md. App. 30, 34-35, 308 A. 2d 747, 750-51 (1973).

      . Dietz v. Moore, 277 Md. 1, 4, 351 A. 2d 428, 431 (1976); Lawless Adm’rx v. Merrick, 227 Md. 65, 70, 175 A. 2d 27, 30 (1961); Baltimore County, Maryland v. Archway Motors, Inc., 35 Md. App. 158, 160, 370 A. 2d 113, 114 (1977).

      . We need not consider the buyer’s contention that certain portions of the sellers’ affidavit in support of their motion for summary judgment did not comply with Maryland Rule 610 b. The facts set forth in those portions, which allegedly were not based upon personal knowledge of the affiant, are not material.

      . See Erdman v. Johnson Brothers Radio & Television Co., Inc., 260 Md. 190, 195, 271 A. 2d 744, 746 (1970); Sheeskin v. Giant Food, Inc., 20 Md. App. 611, 620-21, 318 A. 2d 874, 880 (1974), aff'd., Giant Food, Inc. v. Washington Coca-Cola Bottling Co., Inc., 273 Md. 592, 332 A. 2d 1 (1975).