text:
    CARL S. HELLMANN v. SMITH-MAYFLOWER, SMITH’S MOVING AND STORAGE COMPANY, INC.
    (No. 239,
    September Term, 1980.]

      Decided December 11, 1980.

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

      Melvin G. Bergman for appellant.

      Charles L. Richards for appellee.
   Moore, J.,

delivered the opinion of the Court.

The storage company appellee received into its warehouse approximately 10,000 pounds of appellant’s personal property in May, 1971. Four years later, on May 10, 1975, when storage charges were long overdue and exceeded $2,000, the company sold the property at public auction for $760. In June 1978, appellant filed a two million dollar lawsuit against the company, seeking compensatory and punitive damages for alleged breach of contract, conversion and fraud. The warehouseman counterclaimed for the balance due above the net proceeds of sale. After a two-day bench trial, the court (Latham, J.) found for the appellee in the principal action and awarded it a judgment for $1,338 on the counterclaim. The inevitable appeal is based upon alleged violations of the Uniform Commercial Code in connection with the sale. We affirm, for the reasons stated.

I

Carl S. Hellmann, appellant, a consulting engineer for more than thirty years, resided with his mother in a 21-room house on Jocelyn Street in the District of Columbia. In the spring of 1971, his mother decided to sell the house and Mr. Hellmann was confronted with the necessity of removing his belongings on very short notice — about two weeks. He called appellee, Smith-Mayflower, Smith’s Moving and Storage Company, Inc. ("Smith’s”), and it was willing to accommodate him. Appellant had many yeárs’ experience in packing and packaging. He himself packed more than 150 cartons with his goods but made no inventory of their contents. The cartons, together with a number of glass bookcases, "rosewood” shelves, cabinets, slide trays, 2 oscilloscopes and a generator, were picked up by a Smith’s moving crew on May 25, 1971. A "Warehouse Receipt and Contract,” signed by appellant and appellee’s foreman, listed all the individual cartons simply as cartons, a number of them having the prefix "sm.,” presumably for "small.” Under the caption, "Condition,” all the cartons bore the abbreviation, "PBO,” meaning "packed by owner.” The shelves, bookcases and other items above mentioned were separately listed. The weight of the entire lot appears on the document as "10080.”

No insurance was placed by Hellmann on his property nor was an "excess valuation” declared by him in the contract document entitled "Service-Order Invoice” which was also signed by Hellmann and the foreman.

Appellant paid $236.80 to the foreman on May 25, 1971. With the exception of that payment and $300 in cash picked up at his apartment in Washington by Smith’s at a much later date, no charges were ever paid by appellant, despite repeated requests. Periodic notices were sent to him that his property was to be sold at public auction because of the unpaid charges. Such sales were held by Smith’s once or twice annually. Over the years, however, appellant "talked his way out.” In telephone conversations with Arthur Clarendon Smith, Jr., an officer of appellee, he repeatedly succeeded in getting additional time by representing that a pending lawsuit in the Circuit Court for Montgomery County .would yield funds with which to pay the delinquent charges.

Hellmann’s day of reckoning, however, ultimately arrived. After notice and advertising, the particulars of which are related infra, his goods and those of 39 other individuals were sold at public auction at Smith’s plant in Alexandria, Virginia on May 10, 1975. The gross amount realized by the sale of the Hellmann lot was $760.

Appellant apparently took his time to determine the next move. On June 27, 1978, he filed a three-count declaration against Smith’s. In Count I, it was alleged that Hellmann "was the owner and collector of rare sets of books, reports, items and other property ... in excellent condition”; that while it was stored at Smith’s warehouse in Gaithersburg, Maryland, an agreement was entered into between Hellmann and the president of Smith’s that "the storage bills would be paid as soon as the plaintiff received a monetary award in a previous suit and to have [sic] insurance placed on the stored property”; that this agreement had been breached by the sale of the property and that Hellmann had been "deprived of a valuable and irreplaceable collection of books, catalogs [sic], manuscripts, etc., arid other valuable goods.” A judgment for one million dollars was prayed.

Count II alleged that the sale was "commercially unreasonable,” was made "fraudulently, maliciously, and with intent to injure the plaintiff’ and that "as a result of defendant’s conversion, the plaintiff was damaged in the amount of one million dollars.” Punitive damages in the same amount were also prayed. The third count alleged a fraudulent representation that Hellmann would be allowed to keep his property in storage "for an indefinite period of time” and that Smith’s "fraudulently, maliciously and wrongfully sold plaintiffs property in a commercially unreasonable manner despite plaintiffs reliance on said representation. ...”

The court below, in an oral opinion, held that no agreement between Hellmann and Smith had been entered into, as alleged in Count I. With respect to Counts II and III, the court confined itself to the requirement of the Commercial Code, Art. 7-210 (2) (f), that newspaper advertisements of public sales to enforce a warehouseman’s lien "must include a description of the goods.” The court concluded that there had been compliance with the statute.

On appeal, three questions are presented:

1) Whether the trial court was clearly erroneous in ruling that the legal advertisements were sufficient under U.C.C. § 7-210 (2) (f).
2) Whether the trial court was clearly erroneous in ruling that the Auction Sale Notice to appellant was sufficient under U.C.C. § 7-210 (2) (c).
3) Whether the trial court was clearly erroneous in failing to find an agreement not to sell the stored goods.

II

In Maryland, a warehouseman’s statutory lien is conferred by Md. Com. Law Code Ann. § 7-209 (1) which provides, in part:

"(1) A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law.”

Here, the existence of the lien is not challenged; the controversy arises out of the enforcement of the lien which is governed by § 7-210. Subsection (1) thereof pertains to goods stored by a merchant in the course of his business and makes "commercial reasonableness” the standard for foreclosure proceedings in all cases except non-commercial storage. As the Official Comment states:

"The latter [non-commercial storage] embraces principally storage of household goods by private owners; and for such cases the detailed provisions as to notification, publication and public sale, found in Section 33 of the Uniform Warehouse Receipts Act, are retained in subsection (2). The swifter, more flexible procedure of subsection (1) is appropriate to commercial storage.”

The provisions of subsection (2), therefore, are controlling here:

"(2) A warehouseman’s lien on goods other than goods stored by a merchant in the course of his business may be enforced only as follows:
(a) All persons known to claim an interest in the goods must be notified.
(b) The notification must be delivered in person or sent by registered or certified letter to the last known address of any person to be notified.
(c) The notification must include an itemized statement of the claim, a description of the goods subject to the lien, a demand for payment within a specified time not less than ten days after receipt of the notification, and a conspicuous statement that unless the claim is paid within that time the goods will be advertised for sale and sold by auction at a specified time and place.
(d) The sale must conform to the terms of the notification.
(e) The sale must be held at the nearest suitable place to that where the goods are held or stored.
(f) After the expiration of the time given in the notification, an advertisement of the sale must be published once a week for two weeks consecutively in a newspaper of general circulation where the sale is to be held. The advertisement must include a description of the goods, the name of the person on whose account they are being held, and the time and place of the sale. The sale must take place at least fifteen days after the first publication. If there is no newspaper of general circulation where the sale is to be held the advertisement must be posted at least ten days before the sale in not less than six conspicuous places in the neighborhood of the proposed sale.” (Emphasis added.)

Appellant first attacks Smith’s compliance with that portion of subsection (f) above which requires the newspaper advertisement to include a "description of the goods.” The appellee placed advertisements in The Washington Post and The Washington Star-News. The latter advertisement read in part:

"SMITH’S MOVING & STORAGE CO., INC.
611 South Pickett Street Alexandria, Virginia, 22304
Auctioneer’s sale of personal effects, household goods, appliances, china, glass, silverware, etc., for storage charges. Notice is hereby given that on Saturday, May 10, 1975, at 10:00 A.M., until all sold at PUBLIC AUCTION at 611 South Pickett Street, Alexandria, Virginia, to enforce lien for storage charges, etc., due and unpaid, all goods, paintings and personal effects in storage with SMITH’S MOVING & STORAGE CO., INC., in the name of ....” (Emphasis added.)

A list of forty names followed in the above advertisement, one of which was that of the appellee, Carl Hellmann. It appeared three times in successive weeks on April 19, 26 and May 3, 1975. An identical advertisement twice appeared in The Washington Post,

The appellant contends that because his goods did not consist of household goods, appliances, china, glass and silverware, the advertisement did not conform to the requirements of § 7-210 (2) (f). He testified that his lot included approximately 3600 technical books, pamphlets and a "complete research facility” including laboratory equipment, a variety of machine tools and vacuum pumps, all of which he valued in excess of $150,000 or $200,000.” He also testified that in his telephone conversations over the years with Mr. Smith and other representatives of the storage company, he described the technical nature and value of his property.

No Maryland cases, and few cases elsewhere, have dealt with the narrow issue of the sufficiency of a "description of the goods” in a newspaper advertisement of a sale to enforce a warehouseman’s lien. The obvious purpose of such a requirement is to "insure that those who might be interested in buying the items will be present at the sale.” Grundy v. Clark Transfer Co., Inc., 42 N.C. App. 308, 256 S.E.2d 732, 736 (1979). In Maritime World Corp. v. Grefe Steel Warehouse Corp., 154 N.Y.S.2d 684 (1956), the court addressed the issue of whether there was an inadequate description of the goods in an advertisement which was required to be placed by a warehouseman before a sale of the goods pursuant to a prior comparable law, § 118 of the General Business Law. The Court concluded:

"We believe the statute intended to require that the property to be sold be identified, that the advertisement contain 'enough information to alert buyers and invite competition’ so that the storer will have 'the advantage of time, place and publicity’ in the sale of the goods.”

Id. at 688. Accord, Webb v. Downes, 93 Minn. 457, 101 N.W. 966 (1904).

After a careful examination of the testimony and exhibits in this case, we cannot find that the trial court erred in holding that the description of the goods in the newspaper advertisement satisfied the requirements of the statute. First we observe, however, that if the contract documents had been otherwise than as heretofore described, and had they contained a description of the technical nature of appellant’s property as claimed by him in his testimony, our conclusion would have been otherwise. See Grundy v. Clark Transfer Co., Inc., supra. The facts and circumstances of this case are, to be sure, unique. Appellant himself is an engineer with a wide range of knowledge and experience, including technical knowledge in the area of packaging. The documents which he signed do not even remotely support his position that the storage included "a complete research facility” or 3600 technical books, many of them out of print and irreplaceable. He packed the goods, declared no unusual value, and failed to supply an inventory to the warehouseman. Telephone conversations with representatives of the warehouseman, after he was substantially in arrears, do not make up the deficiency in the Warehouse Receipt and Contract to which resort was made by Smith’s personnel when the time came to prepare an advertisement of the public auction of his goods. To hold otherwise would be to impose upon the warehouseman, under the circumstances of this case, an altogether unjust and unreasonable burden.

Ill

Appellant’s second contention is that the auction sale notice sent to him by Smith’s was insufficient under § 7-210 (2) (c) of the Uniform Commercial Code. That section provides:

"(c) The notification must include an itemized statement of the claim, a description of the goods subject to the lien, a demand for payment within a specified time not less than ten days after receipt of the notification, and a conspicuous statement that unless the claim is paid within that time the goods will be advertised for sale and sold by auction at a specified time and place.” (Emphasis added.)

Again, the only error alleged by Hellmann was in the description of the goods contained in the notification. The record discloses that a registered letter, dated March 21, 1975, was sent to Hellmann’s last known address. It was a printed "Auction Sale Notice” and stated the chargés due, gave notice of an upcoming auction sale if such charges were not paid by a certain date, and described the property as "various cartons, slide trays, glass front cabinet, glass book case, many mise, items....” Below the above description was the routine printed language which stated, "[hjousehold goods, personal effects, appliances, paintings, china, glass and silverware as itemized on Inventory 20192.”

We think it plain that the "Auction Sale Notice” sufficiently described the goods for purposes of subsection (c). The description was more than adequate to put appellant on notice that his entire lot would be sold at auction if storage payments were not made. Appellant had but one lot in storage. No. 20192 was assigned to his entire lot and that number appeared on the "Auction Sale Notices.” There was no reason for appellee to sell only a portion of Hellmann’s goods in light of the increasing storage debt. Furthermore, appellant never objected to the same description contained in many prior notices. We, therefore, find no error.

IV

Finally, appellant avers that the trial court was clearly erroneous in failing to find an agreement between the parties not to sell the stored goods until the termination of Hellmann’s other lawsuit; and he also claims that because no termination date for the storage contract was given, the warehouseman was bound, under § 7-206 (1) to give Hellmann at least thirty days to pay his charges and remove his goods, instead of the twenty days notice provided.

First, appellant’s reliance on § 7-206 is misplaced. That provision is inapplicable in the instant case because the warehouseman chose to pursue his remedy under § 7-210 (2). We agree with the appellee that § 7-206 is an alternative remedy which may be pursued by the warehouseman in certain circumstances before resort to § 7-210. It is not appropriate to proceed under § 7-206 when a warehouseman elects to foreclose his statutory lien directly under § 7-210.

"(1) A warehouseman may on notifying the person on whose account the goods are held and any other person known to claim an interest in the goods require payment of any charges and removal of the goods from the warehouse at the termination of the period of storage fixed by the document, or, if no period is fixed, within a stated period not less than thirty days after the notification. If the goods are not removed before the date specified in the notification, the warehouseman may sell them in accordance with the provisions of the section on enforcement of a warehouseman’s lien (§ 7-210).”

Second, after a careful review of the record, we find that the trial judge was not clearly erroneous in finding no separate agreement between the parties concerning the payment of the storage charges. The court had before it conflicting versions of the same transaction and chose to believe the appellee. Maryland Rule 1086.

Judgment affirmed; costs to be paid by the appellant.

      . Presumably he did so in response to appellee’s slogan, "Dont Make a Move Without Calling Smith’s.”

      . Appellant testified that he wrote the packaging specifications for the Civil Aeronautics Administration of the United States Government.

      . An examination of the contract reveals alternative means for a shipper (bailor) to place a value upon his goods for purposes of the warehouseman’s liability. In conspicuous red type, the contract provides:
      "The customer agrees that the company’s liability per item including contents is 30(2 per lb., unless the customer declares excess valuation and pays the additional costs. ’’(Emphasis added.)
      Appellant did not declare a higher valuation for his goods nor did he sign on the line provided after the statement, "I agree that the Company’s Liability per item including contents is 30(2 per pound.” Furthermore, below the above provisions, also in red type, are two signature spaces following the statement, "[t.]he above is hereby accepted by me and I agree to the terms and conditions set forth herein.” On the line designated "Shipper’s Signature,” no signature appeared. Immediately below on the "Foreman’s Signature” line was the signature of Braxton, the foreman handling the moving of Hellmann’s goods. Hellmann’s signature, however, did appear on the contract following a provision which stated that the moving covered by the contract was satisfactorily completed. At trial, he was reasonably certain that the signature was his.

      . Ironically enough, Hellmann’s pending action was against the Bethesda Transfer and Storage Company. Asked why he delayed enforcing his lien and postponed sales from auction to auction, Mr. Smith testified "[b]ecause I was hoping he would pay up and knowing that it was first — it was not good business to have to make a sale in case he would pay up. It was a calculated risk on my part that he would come forth and he Was very persuasive and I believed him.”

      . The statute of limitations was not raised by Smith’s.

      . The allegation of a conversion is presumably referrable to Md. Com. Law Code Ann. § 7-210 (9) which provides in part that in case of wilful violation of the requirements for sale to enforce a warehouseman’s lien, the warehouseman "is liable for conversion.”

      . Smith testified that in addition, advertisements in local papers were published and circulars were distributed to attract larger crowds to the auction.

      . Other descriptions of the goods given in writing by Hellmann to Smith’s in the years preceding the sale were not entirely consistent. For example, in a letter from Hellmann to Smith’s dated October 30, 1973, he described his goods as "mainly comprising a lot of books, papers, and other personal items.” Yet, in another letter, dated April 12, 1974, Hellmann states, "the goods which are stored with you are NOT simply junk or discards; they are quite valuable, both intrinsically and to me personally. An auction of these goods in this area and at this time will probably not bring an appreciable amount or percentage of their actual and true worth. This is so because they are not the ordinary type of goods, but are very specialized materials. As such, they will enjoy a realistic market only at certain places such as New York City or London, Berlin, etc., since these are the standard marketplace for such items.”

      . Several cartons containing appellant’s goods were opened by Smith’s employees shortly before the auction sale, but after publication of tljie newspaper advertisements. The testimony reveals that the purpose of displaying the goods was to allow interested buyers an opportunity to inspect them. It is interesting to note that even after several cartons were opened, Smith’s employees saw nothing unusual or scientific in nature except the technical books.

      . Roy Hansen, an officer of the company, testified in the proceedings in this connection: "Q... [D]id you also in preparing for these sales, look through the shipper’s inventory? A Yes, that was looked at. Q And did you do that in this case? A Yes.”

      . § 7-206 is entitled "Termination of storage at warehouseman’s option.” Subsection (1) reads as follows:


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    NORTHLAND INSURANCE COMPANY v. H. DAVID WALLS, Ind. & t/a H. D. Walls Trucking Company et al.
    [No. 243,
    September Term, 1980.]

      Decided December 11, 1980.

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

      Samuel II. Smalkin for appellant.

      James C. Hubbard, with whom were Nier, Jarrell & Hubbard on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

In this case we are concerned with the responsibility of an insurance company to provide a defense to its insured in a tort action arising out of an automobile accident.

Northland Insurance Company (Insurer), the appellant, issued to H. David Walls (Insured), the appellee, a policy of automobile liability insurance. Insured financed the annual premium of $5,984.00 through Tifco, Inc., a premium finance company. A down payment of $1,795.00 was made, leaving an unpaid balance of $4,189.00. This amount, plus a finance charge of $194.27, a total of $4,383.27, was to be paid in nine installments of $487.03 each, due on the 11th of each month, the first such payment to be made on December 11, 1976. The insured duly remitted the installments due on December 11,1976 and January 11,1977, but failed to remit the installment due on February 11, 1977. On March 18, 1977, Tifco, Inc., after giving the insured the notice required by statute, sent a "Notice of Cancellation” to Insurer to be effective as of 12:01 a.m., March 18, 1977.

At the time the subject insurance policy was issued, it was filed on behalf of the insured in the states of Connecticut, North Carolina, and South Carolina. Insurer neglected to notify the proper authorities in those states of the cancellation of the policy on March 18, 1977. The insurer claims that, for that reason, a cancellation notice was issued on July 18, 1977, notifying those authorities of cancellation of the policy, effective August 22, 1977. Under date of August 5, 1977, the insurer’s agent sent a letter to the insured informing him that the cancellation notice, dated July 18, 1977, did not supersede or replace the finance company’s cancellation of March 18, 1977.

On June 13, 1977, a truck owned by insured became involved in an accident. In November, 1978, a suit arising out of the accident was filed in the Circuit Court for Caroline County which terminated on March 13,1980, with judgment in favor of the insured. The insurer declined to furnish a defense to insured in the tort action; so the insured filed this declaratory judgment action, which resulted in a decree holding that the subject policy was still in force on June 13, 1977. The chancellor, Clayton C. Carter, found that the policy had not been effectively terminated for three reasons: (1) The insurer failed to give the insured the notice of cancellation which the policy required; (2) The insurer failed to notify the Connecticut, North Carolina, and South Carolina authorities of the policy cancellation on March 18, 1977; and (3) The insurer failed to return the unearned policy premium to Tifco within 60 days. We affirm on the basis of the first of the reasons listed.

The policy contained the following provision:

"This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy, written notice stating when not less than forty-five days thereafter such cancellation shall be effective; except that if the named insured fails to discharge when due any of his obligations in connection with the payment of premium for this policy or any installment thereof, whether payable directly to the company or its agent or indirectly under any premium finance plan or extension of credit, this policy may be cancelled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective.” (Emphasis added).

The chancellor found that, under this provision, the insurer was obligated to give the insured 10 days notice of any cancellation for non-payment of premiums. The insurer argues that the provision is not applicable here. It contends that the provision is applicable only when the policy is cancelled by "the company” and not when, as here, the policy is cancelled at the request of the insured or his agent.' *5 The insurer finds support for its argument in Davis v. Roddie, 274 A.2d 297 (N.J. Super. 1971), Sweers v. Malloy, 281 N.Y.S.2d 693 (App. Div. 1967), and Stone v. Travelers Insurance Company, 242 N.Y.S.2d 583 (Sup. Ct. 1962). Each of these cases indicates that a policy provision requiring notice to the insured prior to cancellation by the insurer is inapplicable where the request for cancellation is made by a premium finance company acting as the agent of the insured.

These cases are inapposite because it does not appear that the policy provisions required that the insurer give notice of cancellation for failure to make payments due under a premium finance agreement. In the instant case, the policy provision specifically requires such notice. We agree with the chancellor that, under this policy, the insurer obligated itself to give notice to the insured of any cancellation, regardless of whether such cancellation was for failure to make payments to it or to a premium finance company. Any other interpretation would make meaningless the language in the provision which we emphasized above.

There is no need for us to discuss the other reasons given by the chancellor to support his decree.

Decree affirmed.

Appellant to pay the costs.

      . Md. Ann. Code art. 48A, § 486F (b), provides: "Not less than ten (10) days written notice shall be mailed to the insured of the intent of the premium finance company to cancel the insurance contract or contracts unless the defaulted installment payment is received within said ten (10) day period.”

      . Md. Ann. Code art. 48A, § 486F (f) provides:
      "Whenever an insurance contract is cancelled in accordance with this section, the insurer shall return whatever gross unearned premiums are due under the contract to the premium finance company for the account of the insured or insureds within a reasonable time not to exceed 60 days after the receipt by the insurer of the notice of cancellation, or after the completion of any payroll audit necessary to determine the amount of premium earned while the policy was in force. The audit shall be performed within 60 days after the receipt by the insurer of the notice of cancellation.”

      . A clause in the premium finance agreement between the insured and Tifco provided: "Insured hereby appoints Tifco as its attorney-in-fact to cancel any or all of the aforementioned policies * *


author: Liss, J.,

text:
    HOWARD COUNTY, MARYLAND v. NICHOLAS MANGIONE
    [No. 303,
    September Term, 1980.]

      Decided December 11, 1980.

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

      Pamela B. Sorota, Assistant County Solicitor for Howard County, with whom was Timothy E. Welsh, County Solicitor for Howard County, on the brief, for appellant.

      Bernard F. Goldberg for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellee, Nicholas Mangione, filed a motion to dismiss this appeal under the provisions of Maryland Rules 1035 b 1 and 1036. In his motion, appellee stated that he applied to the Board of Appeals for Howard County (the Board) for a special exception which would have permitted him to construct sheltered housing on a parcel of land which he owned in Howard County, Maryland. A hearing was held before the Board at which a number of protestants appeared and testified as to their objections to the granting of the special exception. On May 7, 1979, the Board denied the request for the special exception. On May 17, 1979, appellee filed a timely appeal to the Circuit Court for Howard County; the Board was designated as the appellee in that appeal. A hearing was held before the presiding judge (MacGill, J.), and on January 30,1980, the court entered an order remanding the case to the Board for the purpose "of granting the special exception sought upon such conditions and safeguards as the Board may find appropriate under the regulations and the evidence.”

On February 28, 1980, the members of the Board of Appeals — as individuals and as a whole —- entered an appeal from the Circuit Court for Howard County to this Court, in which they designated themselves as appellants. It is to be noted that a number of individuals owning property adjacent to the Mangione tract appeared as protestants in the original hearing before the Board, but in the hearing before the circuit court, and in this appeal none of these individuals participated as "aggrieved parties.” It is also to be noted that while an assistant county solicitor appeared on behalf of the Board at the original hearing and before the circuit court, Howard County never entered the original proceedings as a party to the case or as an "aggrieved party.”

Appellee contends that Howard County, whose name was entered as appellant in this case by our clerk’s office, has no standing to appear as a party in these proceedings as Howard County was not a party to the proceedings in the circuit court. The appellant did not contend either in its reply brief to the motion to dismiss or in oral argument that Howard County under these circumstances is a proper party to this appeal. Therefore, the sole question remaining to be decided in the disposition of appellee’s motion to dismiss is whether the Board of Appeals, a quasi judicial board has standing to appeal as an "aggrieved party” from a circuit court reversal on appeal of a decision of the Board. This issue goes to the question of the Court’s jurisdiction to hear this appeal. This issue may be raised for the first time on appeal. Rule 1085.

In order to determine the Board’s standing, we must examine the Howard County Charter which created the Board.

On November 5, 1968, pursuant to Article XI-A of the Maryland Constitution, the voters of Howard County, Maryland adopted a charter form of government, which, among other things, provided for a County Board of Appeals to hear and decide all appeals relating to zoning, with the exception of zoning map amendments.

Pursuant to the provisions of the enabling legislation, the Howard County Charter in Section 501 (d) provides for the means of appeal as follows:

Within thirty days after any decision of the Board of Appeals is entered, any person, officer, department, board or bureau of the County, jointly or severally aggrieved by any such decision, may appeal to the Circuit Court for Howard County, in accordance with the Maryland Rules of Procedure. The Board of Appeals shall be a party to all appeals and shall be represented at any such hearing by the Office of the County Solicitor.

Section 121 D, of the Howard County Zoning Regulations (1977) provides that an appeal may be taken from the determination of the circuit court to the Court of Special Appeals.

It is conceded that the Board of Appeals of Howard County is an administrative body acting in a quasi-judicial capacity, and it is also conceded that there are numerous Maryland cases which deny such a body standing to appeal to a review court the reversal of one of its decisions. See Maryland Board of Registration for Professional Engineers v. Armacost, 286 Md. 353, 407 A.2d 1148 (1979); Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 331 A.2d 55 (1975); Board of Zoning Appeals for Town of Elkton v. Guns, 259 Md. 368, 269 A.2d 833 (1970); City of Baltimore v. Borinsky, 239 Md. 611, 212 A.2d 508 (1965); Maryland Board of Pharmacy v. Peco, Inc., 234 Md. 200, 198 A.2d 273 (1964); Board of Zoning Appeals v. McKinney, 174 Md. 551, 199 A. 540 (1938).

In McKinney, supra, the Court of Appeals in expressing the philosophy supporting its legal conclusion that a quasi judicial board had no standing to appeal, quoted from 4 C.J.S., Appeal & Error §205 (1957):

As a general rule a court or board exercising judicial or quasi judicial functions, not being a party to its proceedings, and not having any legal interest in maintaining its determination, can neither appeal from a judgment or order of a court reversing the proceedings nor be heard on appeal. [174 Md. at 563.]

The Board of Zoning Appeals in that case was held not to be a party to the proceedings as the Board "has no interest in it different from that which any judicial or quasi judicial agency would have, ... is in no sense aggrieved by the decision ... has no statutory right of appeal, [and] had no power to take this appeal, [which] must be dismissed.” 174 Md. at 564.

Our review of the statutory provisions establishing the Board of Appeals convinces us that not in the enabling legislation adopted by the Maryland Legislature in Article 25A, Section 5 (U), nor in the Howard County Charter adopted by the voters of Howard County, nor in the several enactments of the Howard County Code or Zoning Regulations by the Howard County Council has the Board of Appeals ever been granted the express right of appeal from an adverse decision of the circuit court to this Court.

Appellant suggests that by designating the Board as a "party to all appeals” and by requiring the county solicitor to represent the Board at any hearing on appeal, Section 501 d of the Howard County Charter implicitly granted to the Board the right to appeal in its own name from an adverse decision of the Circuit Court for Howard County. We do not agree. The enabling legislation which created the Board spells out the exclusive method for court review of the proceedings before it. Article 25 Section (U) reads, in pertinent part, as follows:

Any person aggrieved by the decision of the board and a party to the proceedings before it may appeal to the circuit court for the. county .... Any party to the proceeding in the circuit court aggrieved by the decision of the said court may appeal from such decision to the Court of Special Appeals. The review proceedings provided by this subsection shall be exclusive.

Appellant contends that it is aggrieved when its decision is reversed at the circuit court level. By analogy, if this reasoning were adopted by this Court, a district court judge might well feel that he was an "aggrieved party” if a conviction were reversed on appeal de novo in the circuit court. Certainly, the district court judge would have no right to appeal or ask for certiorari even if he perceived the involvement of a constitutional question.

The general rule restricting the participation of an administrative body in litigation affecting its decisions has been stated in 2 Metzenbaum Zoning 1048-49 (2d ed. 1955), which quoted DiCillo v. Chester Zoning Board of Appeals, 158 Ohio St. 302, 109 N.E.2d 8 (1952), as follows:

Admittedly, the board does represent the interest that the public has in having appeals correctly heard and decided .... However, it does not follow that the board or any of its members as such may become partisans when one of its decisions is questioned on an appeal to a court. Sufficient partisan representation of any interest of the public in warding off appellate attacks on the decisions of the board, can be furnished ... by 'any person aggrieved or by any officer of the township [other than members of the board as such] affected by any decision of the administrative officer.’

It is true that in McKinney, supra, the Court of Appeals recognized that some administrative boards and agencies are permitted to participate in litigation affecting their decisions — but only under the circumstances spelled out in that case. The Court said:

There are administrative boards and agencies ... the functions of which are so identified with the execution of some definite public policy as the representative of the State, that their participation in litigation affecting their decisions is regarded by the Legislature as essential to the adequate protection of the State’s interests. But in such cases it will be found that the Legislature in clear and unmistakable language has conferred upon them the right, and charged them with the duty, of taking a part in such litigation. [Emphasis added.] [174 Md. at 561.]

This is not the situation in the case at bar. Appellant admits the Legislature has not in clear and unmistakable language conferred upon the Board the right and/or duty of taking part in the appeal of any reversal of its decisions at the circuit court level. Appellant attempts to differentiate itself from similar boards created by charter in other Maryland counties on the ground that these other boards are not designated either by charter or statute to be a "party” to the proceedings in the circuit court for those jurisdictions. Appellant suggests that the designation of the Board of Appeals as a "party to all appeals” indicates that the framers of the Howard County Charter had in mind that the appellant be a party for purposes other than to produce the record and to notify the parties. See Md. Board of Pharmacy v. Peco, Inc., supra. Appellant contends that by making the Board a "party to all appeals”, the charter designates the Board of Appeals as the representative in interest of the people of Howard County for the purpose of upholding the integrity of the zoning laws of Howard County.

The acceptance of this argument, we believe, would change the role of the Board from its quasi judicial obligation to decide the issues which come before it fairly and impartially to that of an advocate and defender of its decisions once they are challenged on appeal. While it may be administratively expedient to require the Board to be a party in the circuit court in order to provide that court on appeal With all the pertinent information which the Board had before it and upon which the Board reached its conclusion, there is nothing in this scheme which suggests that the charter intended to clothe the Board with the duty to represent Howard County in upholding the integrity of its zoning laws.

Section 121 D. of the Howard County Zoning Regulations (1977) designates those "aggrieved persons” who may appeal for judicial review from any decision of the Board of Appeals:

1. Any person, persons, taxpayer, officer, department, board or office of the County, jointly or severally aggrieved by any decision of the Board of Appeals, may appeal to the Circuit Court for Howard County by petition, duly verified, setting forth that such decision of the Board is illegal, in whole or in part, and specifying the ground of the illegality.
6. The Court may modify, reverse, or affirm, wholly or partly, or may remand for further consideration, any decision of the Board of Appeals. When a case is remanded for further consideration, the testimony, if any taken in court, shall be made available to the Board. The costs of preparing a printed record of such testimony shall be made a part of the costs of the case.
7. An appeal may be taken from the determination of the Circuit Court to the Court of Special Appeals of Maryland.

We find nothing in the charter, as proposed and adopted by the voters of Howard County, which even remotely suggests that in the event of an adverse decision in the circuit court upon appeal from the Board’s quasi judicial rulings, that the Board is authorized to litigate the circuit court’s conclusions in this Court. Even if, arguendo, such a role reversal were constitutionally permissible, which we doubt, in order to effectuate the legislative purpose the Board’s right to appeal would be required to be spelled out in clear and unmistakable language. This the charter does not do.

We conclude that the Board of Appeals of Howard County does not have standing to appeal in this case and that the motion to dismiss must, therefore, be granted.

Motion to dismiss granted.

Costs to be paid by appellant.

      . The creation and jurisdiction of the Howard County Board of Appeals was specifically authorized and delineated in the Express Powers Act, Article 25A, Section 5 (U) of the Maryland Annotated Code (1957, 1973 Repl. Vol., 1980 Cum. Supp.), which states, in part, as follows:
      Section 5. The following enumerated powers are hereby granted to and conferred upon any county or counties which shall hereafter form a charter under the provisions of said Article 11A of the Constitution, that is to say:
      (U) County Board of Appeals
      To enact local laws providing (1) for the establishment of a county board of appeals ... (4) for the decision by the board on petition by any interested person ...: Provided that upon any decision by a county board of appeals it shall file an opinion which shall include a statement of the facts found and grounds for its decision.

      . Whether the jurisdiction, of this Court can be extended or limited by a county charter provision providing standing to appeal where none exists by express statutory authority is a constitutional question which was not raised before us. Under these circumstances, we will not consider the question. See Attorney General v. Johnson, 282 Md. 274, 278 n.2, 385 A.2d 57 (1978).


author: Moore, J.,

text:
    RONALD FRANCIS ELCHIN v. STATE OF MARYLAND
    [No. 312,
    September Term, 1980.]

      Decided December 12, 1980.

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

      James R. White for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Frank Weathersbee, Deputy State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

An unfortunate shooting incident resulted in appellant’s conviction, on September 25, 1979, by a jury in the Circuit Court for Anne Arundel County (Childs, J.), of manslaughter and use of a handgun in the commission of a felony. On the manslaughter count, a five-year suspended sentence was imposed. For the handgun violation, the appellant received a minimum five-year mandatory sentence pursuant to Md. Ann. Code art. 27, § 36B. On appeal, he challenges the handgun conviction.

I

The salient facts are as follows: Appellant, Ronald Francis Elchin, 34, was returning home from work in his automobile, a two-door Corvette, late in the evening of December 15, 1978. To reach his residence on the Severn River in Anne Arundel County, he had to traverse a private lane which services three other homes in the vicinity. Driving along the lane, he noticed an automobile parked off to the left in a grassy clearing. Appellant was aware that the area was frequently used by trespassers as a lover’s lane and was often strewn with litter. Elchin stopped, left his vehicle, and approached the other car, a Pontiac with a glass "T-type” roof through which one could observe the occupants in the front seat. They were two teenage males; the victim of the shooting, George Kelley North, was in the driver’s seat. The other male, Victor O. Willey, was in the front passenger seat and was rolling a cigarette. Two teenage females were sitting in the back.

Elchin asked the group to leave because it was private property but they exhibited an unwillingness to do so. After a little more conversation, Elchin advised them that he was going to call the police, and returned to his own car. He backed it slightly to block the lane so as to prevent the interlopers from departing before the police arrived. He then proceeded to walk to his home nearby, and as he walked, he "heard people banging” on his car. From his home, he called the county police and requested an officer. Elchin then secured a gun that was kept in his house and placed it in a holster which he strapped to his body. When asked why, he responded, "[t]o protect my property, I knew there was two of them, I — never dreamed what was going to happen next.” He returned directly to his car, walking past the North vehicle. The area was "extremely dark.”

Elchin testified that he intended to wait for the police inside his car but the door handle was jammed and, therefore, the door would not open. The two males exited the Pontiac, 22 feet away, and began walking towards him. Elchin testified that he told the two males "I have a gun, just stay right over there.” Willey stated that no warning was given. Elchin also testified that he then fired four warning shots but that the youths continued to approach him. He thought that North and Willey were approximately five to eight feet in front of him when he fired two more shots, the first of which was aimed "low.” Elchin testified that he raised the pistol to fire the last shot at the boys. North dropped to the ground and died almost instantly from two gunshot wounds to the chest. The Willey youth was not hit. Elchin then ran to a nearby firehouse where he surrendered the pistol and requested an ambulance, saying he had just shot somebody.

A search of the trunk of the Pontiac after the incident revealed beer, liquor, hashish oil, hashish, cocaine and marijuana. At the time of his death, North had a blood alcohol content of .18 per cent.

The case was submitted to the jury on charges of second degree murder, manslaughter, and the use of a handgun in the commission of a felony. As previously stated, guilty verdicts were rendered for manslaughter and the handgun violation. On appeal, the following questions are presented:

"L Did the court err in submitting the handgun charge to the jury without instructing them fully on the handgun law in Maryland, including the legislative purpose, which is part of the statute?
"II. Did the Court err in refusing to give preliminary instructions to the jury prior to the taking of the testimony and did the Court err in failing to give final instructions in the proper order to the jury after testimony had been completed?”

II

Initially, we agree with the appellee that the appellant’s claimed exception below to the trial court’s refusal to read in its jury instructions the legislative purpose contained in Article 27, § 36B (a) is not found in the record. Maryland Rule 757 f. The record reveals that a portion of defense counsel’s exceptions subsequent to the court’s advisory instructions were "completely unintelligible” despite warnings by the court reporter that "he wasn’t being picked up.” Here, appellant failed to correct the transcript. See White v. State, 8 Md. App. 51, 54, 258 A.2d 50, 51 (1969). Maryland Rule 1027 b. Nevertheless, we will consider the merits of the argument.

Appellant contends that the court did not instruct the jury fully as to the handgun statute, Article 27, § 36B, because it failed to include the legislative policy contained in subsection (a) in its instructions. The instructions relating to the handgun count were as follows:

"If you find beyond a reasonable doubt that the defendant used a handgun during the commission of a felony, and a felony would include second degree murder, then that is a crime and the defendant should be found guilty of Count 4 if you so find. Now, you have been addressed as to the possible penalties for that count. I advise you that you should not,, in your deliberations, to sway [sic] or be persuaded by any possible penalty because that is not your province, that is the province of the Judge in connection with the guidelines issued to him by the legislature. It is not your province to determine what sentence should be served in the event you find him guilty on any of these, crimes.”

The omitted preamble of Article 27, § 36B, containing the legislative purpose, states:

"(a) Declaration of policy. — The General Assembly of Maryland hereby finds and declares that:
(i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;
(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
(iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
(iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.”

Appellant’s point is that the instant offenses did not occur "on the streets and public ways,” and he seizes upon the language of the "Declaration of policy” in Article 27, § 36B (a) above, that a substantial increase in the number of persons killed or injured is traceable, in large part, "to the carrying of handguns on the streets and public ways....” (Emphasis added.) We find no merit in appellant’s argument that it was error for the court to exclude from its instructions the legislative purpose found in § 36B (a). A violation of subsection (d) does not depend upon the carrying or use of a handgun on the streets and public ways because there is no language to that effect anywhere in that subsection.

There is no ambiguity in the statute, and therefore no need to resort to its "Declaration of policy.” See Gibson v. State, 204 Md. 423, 432, 104 A.2d 800, 804-05 (1954); Neal v. State, 45 Md. App. 549, 556-58, 413 A.2d 1386, 1390-91 (1980).

Elchin relies upon Dillon v. State, 27 Md. App. 579, 342 A.2d 677 (1975), aff’d, 277 Md. 571, 357 A.2d 360 (1976), wherein the trial court’s charge included the reading of the preamble found in subsection (a). In Dillon, however, defense counsel objected to the inclusion of that subsection in the court’s instructions; on appeal, this Court found "no prejudicial effect” and affirmed the conviction. Judge Menchine, speaking for the Court, stated:

"Inclusion of a pertinent statute within the court’s advisory instruction is proper. Parker v. State, 7 Md.App. 167, 254 A.2d 381, cert. den. 91 S. Ct. 1670, 29 L.Ed.2d 150. We have been referred to no Maryland case — and we have found none — in which a declaration of legislative policy incorporated within a penal statute was read to the jury. The Supreme Judicial Court of Massachusetts, however, twice has ruled upon the question. In Commonwealth v. Sansone, [252 Mass. 71], 147 N.E. 574 (1925) it was said at 575:
'It is not error for the trial court in the course of a charge to state the legislative purpose in enacting the statute upon which the indictment is based.’

Again, in Commonwealth v. Brunelle, Mass., 277 N.E.2d 826 (1972), it was said at 831:

'A judge may inform a jury about the legislative purpose of a statute, if he does so accurately.’ ”

Dillon, supra, 27 Md. App. at 588-89, 342 A.2d at 682-83.

In affirming this Court, it is significant that the Court of Appeals, although also finding no prejudicial error, spoke with disfavor of the trial court’s inclusion of the preamble of Article 27, § 36B in its instructions:

"Even though, as the Massachusetts court opined in Commonwealth v. Brunelle, supra, the trial judge may 'have been wiser to have avoided entirely the risk of prejudice’ in reading verbatim the preamble of the statute, and may have, with greater deftness, undertaken to remove from the minds of the jury any apparent confusion concerning the identity of the charges set forth in the separate counts, we do not find that a recitation of the legislature’s 'Declaration of Policy’ constituted error. Although we do not encourage such a practice, the recitation of the 'Declaration of Policy’ did no more than relate the purposes behind the enactment of the statute ... was accurately stated,... and was an aid and means of enlightment to the deliberations of the jury as judges of the law, in construing the provisions of Art. 27, § 36B(d). . . .” (Emphasis added.)

Dillon, supra, 277 Md. at 585, 357 A.2d at 369. Appellant’s reliance on Dillon is misplaced. The Court of Appeals and this Court did not find error in the reading of the preamble in the court’s charge; but the case simply does not support appellant’s contention that it was error for the lower court to decline to read it. Therefore, we reject his first contention.

Ill

Appellant’s second argument embraces two points. First, he contends that the lower court erred in refusing to give preliminary instructions to the jury prior to the taking of testimony. Appellant cites no authority to support his proposition. Suffice it to say, preliminary instructions are within the trial court’s discretion. Indeed, under Maryland Rule 757, pertaining to advisory instructions in criminal cases, even the giving of final instructions is discretionary unless requested by a party. In a recent case, the Court of Appeals noted, "Rules 757(b) and 757(d) define an 'instruction’ as a communication from the j udge to the jury made after the close of the evidence. Ordinarily, preliminary remarks do not perform the function of jury instructions.” Lansdowne v. State, 287 Md. 232, 243, 412 A.2d 88, 94 (1980) (Emphasis added) (trial judge who explained the term "reasonable doubt” in preliminary instructions committed reversible error by refusing the accused’s request to explain that term again after the close of the evidence).

The second point presented by the appellant is that, although the final instructions were basically complete as given, the court erred in failing to give them in the "proper order” and that the instructions, which included a supplemental charge, served to confuse and confound the jury. Again, appellant’s objection is absent from the record. Maryland Rule 757 f. Therefore, it is not preserved for review. Maryland Rule 1085. However, even if we were to consider it, we would find no merit in this argument. The instructions, taken as a whole, accurately stated the law. As this Court stated in Shotkosky v. State, 8 Md. App. 492, 261 A.2d 171 (1970), "[i]t is not necessary for this Court to decide that the instructions as given were the clearest of all possible instructions. It is sufficient that the instructions taken as a whole correctly stated the law.” Id. at 508-09, 261 A.2d at 181. We therefore affirm.

Judgments affirmed; appellant to pay the costs.

      . By deed, appellant had an easement in the lane.

      . On cross-examination appellant said he told the police that the reason he returned to his car with a gun was to protect himself, and to keep the people there until the police arrived, although "that was not the prime reason.”

      . In a prior statement given to the police, Elchin said that he did not tell the youths that he had a gun.

      . Appellant described the size of the youths as "big” and stated that he feared for his life. North, age 19, was 5' 9" and weighed 210 pounds. Willey was 6' and weighed 175 pounds.

      . Article 27, § 36B (d) provides:
      "(d) Unlawful use of handgun in commission of crime. — Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”

      . In Dillon, Judge Levine filed a dissenting opinion in which Judge Eldridge joined. In his dissent, Judge Levine reasoned that the instruction was both erroneous and prejudicial.

      . As stated in 3 ABA Standards for Criminal Justice, ch. 15-3.6 (e) (2nd ed. 1980):
      "Before the taking of evidence, the court may give preliminary instructions to the jury deemed appropriate for their guidance in hearing the case. After the arguments are completed, the court should give the jury all necessary instructions.”

        See generally Annot., 89 A.L.R.2d 199, 200 n.2 (1963).


author: Gilbert, C. J.,

text:
    GILLIS LEE v. STATE OF MARYLAND
    |No. 322,
    September Term, 1980.]

      Decided December 12, 1980.

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

      Robert S. Sherman, with whom was Richard W. Winelander on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William Swisher, State’s Attorney for Baltimore City, and Barbara Salkin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

THE ISSUE —

This appeal tests the perimeters of the second prong of the rule articulated in Bell v. State, 286 Md. 193, 406 A.2d 909 (1979), concerning the "bad faith conduct” of a prosecutor that causes a defendant to move for a mistrial.

THE LAW—

Writing for the Court in Bell, Judge Orth declared:

"The teaching of the Supreme Court cases is clear. Retrial is not barred as violative of the Double Jeopardy Clause of the Fifth Amendment when a mistrial is declared at the behest or with the consent of the defendant unless such error or misconduct, sufficient to justify the declaration of a mistrial, was committed by either the prosecutor or the court with the intention of (1) forcing the defendant to move for or consent to a mistrial, or (2) prejudicing his prospects for an acquittal if the trial continued to a verdict. It is 'bad-faith conduct by judge or prosecutor’ with such intent that prohibits retrials.
The keystone of the test formulated and consistently followed by the Supreme Court is the requirement of 'intent.’ And intent is implicit in 'bad-faith.’ Thus, the test does not encompass negligence. See Illinois vs. Sommerville, 410 U.S. 458, 93 S. Ct. 1066, [35 L.Ed.2d 4251 (1973). 'Intentional’ and 'negligent’ are mutually exclusive. It is true that the greater degree of negligence, the closer the error comes to being intentional. That is, an error by judge or prosecutor which appears to be 'gross negligence’ may, of course, provide some evidence of intent. But if what seems to be negligent is so gross as to warrant a determination that the act was in fact intentional, it is not then negligent.” (Footnotes omitted.) Id. at 204-05, 406 A.2d at 915.

The appellant in the instant case, Gillis Lee, concedes that "the State . .. did not want or seek a mistrial.” Hence, we need not and do not concern ourselves with Bell’s other tine. Instead, we shall focus our attention strictly upon whether the State so acted, in the matter before us, as to prejudice appellant’s "prospects for an acquittal if the trial continued to verdict.”

Bell was never intended to address all situations in which evidence concerning the accused’s criminality is offered. Indeed, the purpose of the State’s proceeding to trial in the first place is to offer evidence demonstrating beyond a reasonable doubt that the accused did what he did at the time and place alleged by the State.

We make explicit that Bell condemns those instances where the prosecutor intentionally forces a defendant into moving for a mistrial or prejudices the defendant’s prospects for a fair verdict that is based upon the legally admissible evidence. Judge Moylan, in a concurring opinion in Jones v. State, 44 Md. App. 417, 433, 409 A.2d 725, 733 (1979), aff'd, 288 Md. 618 (1980), pointed out that when the SupremeCourt of the United States and the Court of Appeals of Maryland speak of intentionally forcing the defendant to move for a mistrial, the word "intentional” has a more narrow meaning than a "mere general intent.” Jones was recently affirmed by the Court of Appeals. See Jones v. State, 288 Md. 618, 420 A.2d 1241 (1980).

The general intent to do something, which may at a later time be declared "to be a foul, is almost always present.” The use of prejudicial questions on direct or cross-examination "or the introduction of tainted evidence represent! s] conscious and intended actions.” What is meant by the Bell Court’s use of "intentional” is "overreaching,” an act that "contemplates a specific intent above and beyond the mere general intent.” It is the specific intent to commit a foul, the deliberate "hitting below the belt” or the calculated "personal foul” performed with the thought in mind that the foul might well be detected for what it is. By borrowing from the game of football for an analogy, we liken that specific intent to force a mistrial to a defensive back’s wilful and deliberate interference with the offensive team’s down field pass receiver. The defense knows that by performing the illegal act that constitutes the foul, he will probably be caught and his team penalized. Nevertheless, the offender prefers to take the penalty rather than give up the touchdown that most likely would occur were the foul not committed. In football, commission of such a foul may be expedient, but in the trial of a case, it is a reprehensible specific intention that triggers the Double Jeopardy Clause protection.

THE INSTANT CASE —

During the trial of appellant in the Criminal Court of Baltimore (Bell, J.) on a charge of robbery with a dangerous and deadly weapon, as well as other allied charges, a critical point arose during the testimony of the prosecutrix-victim.

The witness, Paulette Malloy, on direct examination by the Assistant State’s Attorney, related that she based her identification of Gillis Lee, as the robber who held up the store in which she worked, on April 30, 1979, on what she saw that day. When asked if she had seen appellant since the April robbery, the witness said that she had seen the appellant in the store at another time, and at that time, the store was also robbed. The answer was not responsive. The "other time, . .. the store was also robbed” was prior to the April 1979 robbery.

The appellant promptly moved for a mistrial, and the same was granted by Judge Bell.

Subsequently, the matter was called to trial before Judge James W. Murphy. Appellant, citing Bell, moved to dismiss the indictment on the ground that any trial would be in derogation of appellant’s constitutional protection against double jeopardy.

Barbara Salkin, the Assistant State’s Attorney at the aborted trial, testified before Judge Murphy that although she knew of Ms. Malloy’s knowledge concerning the earlier robbery, she did not furnish that information to appellant’s counsel or to Judge Bell. Her reasons for not doing so were relatively simple. First, she had instructed Ms. Malloy on a number of occasions not to mention the first robbery. Second, the prosecutor knew the evidence, if used, would tend to prove guilt through another uncharged crime. Ms. Salkin categorically denied that she purposely brought about a mistrial. Indeed, inasmuch as Ms. Malloy was the State’s first witness, there was apparently nothing to be gained by the State as a result of a mistrial.

Notwithstanding Ms. Salkin’s disavowal of any underhanded or ulterior motive in dealing with the examination of Ms. Malloy, nor appellant’s inability to point to any advantage the State might have reaped from the mistrial, appellant steadfastly argued that Bell dictates that the prosecution may not continue because the Double Jeopardy Clause acts as an insurmountable barrier to the State.

Appellant misconstrues Bell. As we noted at the outset, Bell is directed towards the purposeful causing, by the State, of a defendant’s successful moving for a mistrial so as to afford the State the opportunity to try the defendant anew. "Purposeful,” as used in Bell, includes within its ambit such gross negligence that, when viewed impartially, amounts to intent. It is "overreaching,” irrespective of prosecutorial intent, to the point where the defendant is deprived of a fair trial.

The prosecutor in the case now before us specifically cautioned the witness not to refer to the prior robbery. There is nothing within the record from which it can fairly be inferred that the prosecutor sought or wanted a mistrial, nor can it in all fairness be inferred that she endeavored to deprive the appellant of a fair trial. Having admonished the witness not to mention the earlier uncharged robbery, there was little the prosecutor could do to prevent either the "blurt” or the unresponsive answer given by the witness. About the only way of being absolutely certain that the witness would not reveal the prior incident would be to keep the witness from the stand. That would be ideal for the defendant because the State would be without its principal witness. Bell does not require that drastic action on the part of the State.

Moreover, even if the Assistant State’s Attorney had notified the judge and the appellant’s counsel of the prior robbery, that knowledge by them would not have prevented the witness from blurting appellant’s alleged involvement in the prior robbery. Furthermore, no disclosure by the State to the defense was required inasmuch as the information can hardly be characterized as exculpatory.

Judge Murphy did not err in refusing to dismiss the Criminal Information on the ground that the mistrial placed the defendant in double jeopardy.

Order denying motion to dismiss afGrmed.

Costs to be paid by appellant.

      . Whether the evidence was properly admitted is not an issue in this case. We do not decide it.


text:
    SISTERS OF MERCY OF THE UNION IN THE UNITED STATES OF AMERICA et al. v. GAUDREAU, INC.
    [No. 334,
    September Term, 1980.]

      Decided December 12, 1980.

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

      Thomas N. Biddison, Jr., for appellants.

      William M. Nickerson for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

PREFACE

The difference between negligence and malpractice is the matter of a degree. If an individual, through carelessness or disregard, commits or omits to perform a certain act or duty upon, or directed towards another, he is said to be negligent. When the negligence arises out of a relationship between a layman and a professional and is directly attributable to the professional care, treatment, advice, representation, services, or conduct, negligence is by verbal alchemy transmuted into malpractice.

THE INSTANT CASE —

The instant case is between Sisters of Mercy of the Union in the United States of America and Mercy Villa, Inc. (hereinafter referred to as "the Sisters”) and Gaudreau, Inc., (Gaudreau), a firm of architects.

From the record it is apparent that the Sisters were desirous of constructing a retirement home for the Sisters of Mercy. Sister Mary Faith McKean, the Provincial Administrator of the Order contacted Gaudreau in early 1972 for the purpose of obtaining Gaudreau’s services in the planning, designing, and construction of the retirement home. Bellona Avenue, in the Baltimore Metropolitan area, was chosen as the site for the home, Mercy Villa, Inc.

A contract between the parties was signed on May 1,1972. Gaudreau designed the building and selected the materials that were used. Lawrence Construction Company was engaged to build the Villa.

Construction was completed in June 1974, and the Sisters moved into the building. Defects in the building were observed both before and after occupancy. Included among those defects were "leaking water causing multiple problems such as stained carpet and discolored tiles.” Additionally, there "were structural cracks, faulty ventilation, heating and insulation, and ill-fitting doors and windows.” Notwithstanding that the discrepancies were called to Gaudreau’s attention, "[m]any of them remained uncorrected well into 1975.” The water leakage was first noticed in 1974. The Sisters aver that they were not aware of either the source of the leak or the responsibility for it. Repeated attempts by the roofing contractor to fix the leak were unsuccessful. Finally, in April 1979, the Sisters sought legal assistance. Their counsel engaged the services of an independent estimator who specialized in construction and fire loss appraisals. Another architect was also employed. Those two persons reported to the Sisters’ lawyer that the leakage problems "were to a great extent attributable to a faulty design” by Gaudreau.

After attempts to negotiate with Gaudreau failed to produce results satisfactory to the Sisters, they, pursuant to a clause in the agreement of May 1,1972, between Gaudreau and themselves, sought to compel arbitration. The part of the agreement upon which the Sisters relied provides:

"ARTICLE 11
ARBITRATION
11.1 All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law.
11.2 Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.
11.3 The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.” (Emphasis supplied.)

Gaudreau responded by filing a petition in the Circuit Court of Baltimore City in which it asserted that the Statute of Limitations had run, and that as a result, the arbitration should be stayed. Apparently to bolster their chance at arbitration, the Sisters filed a cross-petition in which they sought to compel Gaudreau to submit the claim to the American Arbitration Association.

On December 18, 1979, a hearing was held before Judge Joseph H. H. Kaplan, who denied the Sisters’ petition to compel arbitration and granted, on the basis of the Statute of Limitations, Gaudreau’s request for a stay of arbitration.

THE PROBLEM —

Unwilling or unable to drink "the lees of defeat,” the Sisters have appealed to this Court where they posit to us that:

"The Lower Court Erred in Holding That the Statute of Limitations in Professional Malpractice Cases Begins to Run Upon the Noting of the First Trivial Injury, Whether or Not the Cause of That Injury Was Known.
A. The Statute of Limitations in professional malpractice cases cannot be tolled before the victim is aware of the cause of his injury.
B. The Sisters did not know, nor could they be reasonably expected to know, of the cause of the water damage.”

We see the issue before us as simply: Is this action barred by the Statute of Limitations? Patently, if the statute is applicable to the controversy, it is at an end. On the other hand, if the statute does not apply, the Sisters will be able to pursue redress through arbitration.

THE LAW —

The general Statute of Limitations in tort actions is found in Md. Cts. & Jud. Proc. Code Ann. (1980 Repl. Vol.) § 5-101.

"A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.”

The statute governs malpractice cases. McClees v. Cohen, 158 Md. 60, 148 A. 124 (1930). The statute is plainly worded and easy to apply once it is ascertained when the cause of action accrued. Levin v. Friedman, 271 Md. 438, 317 A.2d 831 (1974).

The difficulty that arises with respect to the statute is in determining just when a particular action accrued so as to trigger the statute.

The late Judge Thomas B. Finan, writing for the Court in Mattingly v. Hopkins, 254 Md. 88, 92-93, 253 A.2d 904, 907 (1969), said of the then Md. Ann. Code art. 57, § 1 (the predecessor of Courts Art. § 5-101):

"Like most general rules of law, those pertaining to 'limitations’ become less than profound when an attempt is made to apply them to specific cases. Much has been written as to when 'limitations’ should start to run. Some courts have held the cause of action accrues when the defendant commits his wrong, others when the plaintiff discovers the wrong, and still others have held that it does not accrue until the maturation of harm. Sometimes the happening of the wrong, the knowledge of it and the maturation of the harm are simultaneous. When this occurs the recognition of the accrual of the cause of action is simple, when these elements happen sequentially it can become complex. Furthermore, there are nuances of difference in the accrual of the cause of action in cases arising out of actions ex contractu, as distinguished from actions ex delicto, and a further hybridization of actions arising out of professional malpractice and otherwise. An exhaustive discourse on the problems which emerge from the various combinations of events which spell out the accrual of the cause of action, is found in 63 Harv. L. Rev. 1177 (1950) and in 28 Md. L. Rev. 47 (1968). Both articles cite numerous cases and the trend of decisions. In 28 Md. L. Rev. 47, beginning at 61 there is a concise summary of 'The Situation in Maryland.’ See also Prosser, The Law of Torts (1964) § 30.”

See also Steelworkers Holding Co, v. Menefee, 255 Md. 440, 443, 258 A.2d 177, 178-79 (1969).

Cognizant of the fact that in some cases it would be grossly unfair to adopt an interpretation of the statute that would require its application accruing from the date of the breach of duty, the Court announced the "discovery rule.” Hahn v, Claybrook, 130 Md. 179, 180-81, 100 A. 83, 84 (1917). See Harig v. Johns-Manville Products, 284 Md. 70, 394 A.2d 299 (1978); American Home Assurance Co. v. Osbourn, No. 22 (C.S.A., filed November 7,1980). That rule applies to claims of medical malpractice. See Jones v. Sugar, 18 Md. App. 99, 102-03, 305 A.2d 219, 221-22 (1973).

With respect to malpractice cases, the Statute of Limitations may be likened to a time bomb, lying dormant. When a claimant discovers or should have, with due diligence, discovered that he or she has a cause of action against a wrongdoer for breach of duty, at that moment the detonating device is triggered, and the statute begins to tick away. If the action is not brought within three years of the moment of discovery, or the moment the cause of action should have been discovered, whichever is the earlier, the "bomb” explodes, and the claim is blown to oblivion.

At one time the "discovery rule” was limited in its scope to medical malpractice. Steelworkers Holding Co. v. Menefee, supra at 443, 258 A.2d at 179; Hahn v. Claybrook, supra; Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). As other types of professional malpractice cases arose, the rule was expanded to include accountants, Feldman v. Granger, 255 Md. 288, 257 A.2d 421 (1969); attorneys, Mumford v. Staton, Whaley & Price, 254 Md. 697, 255 A.2d 359 (1969); civil engineers, Mattingly v. Hopkins, supra; architects, Steelworkers Holding Co. v. Menefee, supra. Indeed, if we judge the future by the past, as Patrick Henry (1736-1799) suggested in his famous "Liberty or Death Speech” to the Virginia Convention in Richmond on March 23, 1775, there is reason to believe that the "discovery rule” will be applied to all cases of professional malpractice. Limitations in Professional Malpractice Actions, 28 Md. L. Rev. 47, 63 (1968).

It is apparent from the record that the Sisters first became aware of the leakage through the "roof and walls” as early as 1974. With Jobian patience, they tolerated the leakage for a period of five years before they were finally motivated to seek the advice of an attorney. The attorney, as we have previously observed, employed a building inspector and an architect. After their report to the Sisters’ attorney, the Sisters opted to sue, explaining that they "had no idea whatsoever as to why . . . [the leakage occurred nor whom] to blame.”

We do not doubt that what the Sisters say is true. Nevertheless, they knew that there was leakage and that it was a recurring thing. In our view and that of Judge Kaplan, they knew or should have known that the roof should not have leaked whenever it rained. They knew or should have known that the roof is supposed to protect the inhabitants from the elements, including rain. By _ the exercise of reasonable diligence, they could have ascertained the cause and the responsibility long before they did so and long before the Statute of Limitations had run its course. That they slept on their rights until the opportunity to bring a suit for breach of duty had expired is of their own doing.

We think the words of Judge Singley in Steelworkers Holding Co. v. Menefee, supra at 443-44, 258 A.2d at 179, are particularly applicable here. With slight modification, we adopt those words as dispositive of this matter:

"We have no hesitancy in saying that the same [discovery rule that is applied to medical doctors, lawyers, civil engineers and accountants] could be availed of in the case before us by [Gaudreau], an architect.”

Judge Kaplan correctly held the action to be barred by the Statute of Limitations.

Order granting stay of arbitration affirmed.

Costs to be paid by appellants.

      . The "lees” of wine are the bitter dregs that settle to the bottom of the vat. Thus, "lees of defeat” would be loosely the bitter taste of defeat. See Morris Dictionary of Word and Phrase Origins (Harper & Row, 1977).

      . The Bible, Book of Job.


author: Weant, J.,

text:
    PRINCE GEORGE’S COUNTY, MARYLAND v. COMMONWEALTH LAND TITLE INSURANCE COMPANY
    [No. 338,
    September Term, 1980.]

      Decided December 12, 1980.

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

      Michael P. DeGeorge, Associate County Attorney for Prince George’s County, with whom were Robert B. Ostrom, County Attorney for Prince George’s County, and Michael O.

      Connaughton, Deputy County Attorney for Prince George’s County, on the brief, for appellant.

      Carlton M. Green for appellee.
   Weant, J.,

delivered the opinion of the Court.

Before setting out the facts that spawned the instant appeal, we think it better to set out the questions that we have been asked to resolve. Stated simply, they are:

1. Did a lien [in favor of the appellant Prince George’s County, Maryland (P.G. County)] attach to the real property of Claude J. Hill prior to his conveyance to the insureds of the appellee [Commonwealth Land Title Insurance Company (Commonwealth)]?
2. Did the nunc pro tunc Order affect the property previously conveyed by Claude J. Hill?

For the reasons stated herein, our response to the above-stated queries must be in the negative.

— the facts —

On 7 April 1978, Prince George’s County filed a Declaration in the Circuit Court for Prince George’s County alleging that Claude J. Hill was indebted to it in the amount of Eighteen Thousand, One Hundred Fifty-eight Dollars and Twelve Cents ($18,158.12). On this same date Prince George’s County also filed a Motion for Summary Judgment.

Aside from a Motion Raising Preliminary Objection, which was denied, no pleadings were filed by Mr. Iiill. As a result, on 16 August 1978, the court ordered that summary judgment be entered in favor of the appellant. The corresponding docket entries of that date state in pertinent part: "Judgment entered in favor of the Plaintiff Prince George’s County, Maryland against the Defendant Claude J. Hill and is subject to ex parte proof.” Neither the order granting the motion for summary judgment, nor the docket entries pertaining to such, specify the amount that Mr. Hill owed Prince George’s County.

On the very next day Mr. Hill filed responsive pleadings, and on the day thereafter he filed a Petition to Set Aside Summary Judgment Entered by Default. This matter came before the court on 14 September 1978, at which time the court, in an oral opinion, resolved it in the following manner:

The Court, therefore, I believe, can satisfy both the plaintiff and the defendant in this case by not vacating the judgment, but by merely opening up the judgment, and therefore, the judgment will be opened up, and the matter will be set for trial.
That means the judgment still remains so that the defendant will be prohibited from disposing of his property without some escrow arrangements being made in the interim, and he can also have his day in Court.

Ignoring the latter portion of the trial court’s opinion, Claude Hill, on 8 October 1978, conveyed certain real property situated in Prince George’s County to persons whose title is insured by Commonwealth.

The event which directly precipitated the instant appeal occurred when the court, having considered the ex parte proof presented in conjunction with the previously granted motion for summary judgment,

ORDERED that judgment nunc pro tunc to August 16, 1978, be granted herein against defendant, Claude J. Hill, in the amount of Eighteen Thousand One Hundred Fifty-eight and 12/100 Dollars ($18,158.12), and .. . further
ORDERED that this Order shall not be considered to in any way vacate, reverse or supercede [sic] the Order of the Court entered on August 16, 1978. []

Obviously worried about the effect that the above-recited order might have on it, Commonwealth, on 29 October 1979, filed a Motion to Intervene and for Declaratory Judgment, wherein it sought among other things to have the court declare that "no lien attached in favor of Prince George’s County on the aforesaid real property of Claude J. Hill prior to its transfer to [its insureds].” When ruling on this declaratory judgment motion, the court, on 6 February 1980, held as follows:

Based on my review of these records, the transcript and so forth, I declare, and so find, that there was no valid judgment by Prince George’s County, against this individual, Hill, and at the time of the disbursement, and so forth, the intervenor should not have been put on notice that such a judgment existed, that no valid, full and final judgment was entered against Mr. Hill until January of 1979.

In essence, the court’s holding of February 6 rendered nugatory previous court orders which manifestly held otherwise. Not surprisingly, Prince George’s County has appealed the court’s February 6 ruling.

— the issues —

Maryland Rule 620, entitled "Lien of Judgment,” states at section a:

A judgment shall constitute a lien to the amount and from the date thereof upon all real estate of the judgment debtor lying in the county wherein the judgment was entered, and upon all leasehold interest and terms for years of the judgment debtor in land, except leases from year to year and leases for terms of not more than five years and not renewable. [Emphasis added].

We read this provision, particularly the italicized portions thereof, to mean that there is no lien until an amount has been specified. See Liquor Dealers Credit Control, Inc. v. Comptroller, 241 Md. 656, 217 A.2d 571 (1966), wherein the Court of Appeals stated at page 661, 217 A.2d at 574:

Since a lien predicated upon the rendition or entry of a judgment did not exist at common law, a judgment is not, in and of itself, a lien on either real or personal property. The right a judgment creditor has to a lien is therefore wholly statutory. Caltrider v. Caples, 160 Md. 392, 394, 153 Atl. 445 (1931).

Therefore, no lien attached to Claude Hill’s Prince George’s County property until 2 January 1980, the date the court’s order specifying the amount owed by Mr. Hill to Prince George’s County was filed.

As to the court’s comment in its oral opinion of September 14 that opening the judgment of 16 August 1979 rather than vacating such resulted in Mr. Hill’s property remaining encumbered, it did not have the intended effect, since no lien had attached originally. Had an amount been specified in the August 16 order, we would be constrained to hold otherwise. E.g., Adams v. James L. Leeds Co., 189 Pa. 544, 547, 42 A. 195, 196 (1899), wherein the Supreme Court of Pennsylvania stated:

The opening of a judgment which is a lien on real estate does not destroy or impair the lien, nor does it necessarily affect the lien of a levy made upon personalty under an execution issued on the judgment. The liens in either case may and should be continued pending the determination of the issues relating to the validity of the judgment, and to the nature and amount of the indebtedness represented by it. [Emphasis added].

The failure to designate the amount of indebtedness in the instant case is fatal also to the argument that "[a]ny uncertainty as to the amount of the judgment entered on August 16, 1978 is cured by making reference to the pleading, exhibits, and affidavits on file in the case.” As support for this contention, P.G. County states: "In the majority of jurisdictions which have addressed this question, it has been held that the amount of recovery, if not specified in the Court’s order, may be supplied from the record as a whole, including the pleadings and other instruments filed in the case. [46 Am. Jur. 2d Judgments § 76 (1969)].” While we have no dispute with the general proposition that resort to other portions of the record may be had where there is uncertainty or ambiguity as to the amount of a judgment, e.g., State v. Haney, 277 S.W.2d 632, 635-36 (Mo. 1955) and cases cited therein, we do not find such to be an appropriate measure in the instant case, where no uncertainty or ambiguity can be said to exist. Here the omission of the judgment’s amount was purposeful, as evidenced by the notation in the docket that the judgment was subject to ex parte proof. We can only assume that the introduction of the ex parte proof was intended to go to the issue of the indebtedness amount, since as soon as such proof was presented to the court, it ordered that "judgment nunc pro tunc to August 16, 1978, be granted herein against defendant, Claude J. Hill, in the amount of Eighteen Thousand One Hundred Fifty-eight and 12/100 Dollars ($18,158.12)

The fact that the court’s order of January 2 spoke of a "judgment nunc pro tunc to August 16, 1978,” leads us to a discussion of Prince George’s County’s second contention, i.e., that "[t]he judgment nunc pro tunc entered on January 2,1979 relates back to August 16,1978 and has priority over the interest obtained in appellee’s insureds.”

Black’s Law Dictionary (5th ed. 1979) at page 964 defines the term "nunc pro tunc ” as follows:

Lat. Now for then. In re Peter’s Estate, 175 Okl. 90, 51 P.2d 272, 274. A phrase applied to acts allowed to be done after the time they should be done, with a retroactive effect, i.e., with the same effect as if regularly done. Nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake. Seabolt v. State, Okl. Cr., 357 P.2d 1014.
Nunc pro tunc merely describes inherent power of court to make its records speak the truth, i.e., to record that which is actually but is not recorded. Simmons v. Atlantic Post Line R. Co., D.C.S.C., 235 F.Supp. 325, 330. Nunc pro tunc signifies now for then, or, in other words, a thing is done now, which shall have the same legal force and effect as if done at time when ought to have been done. State v. Hatley, 72 N.M. 377, 384 P.2d 252, 254.

The key phrase in the above-recited definition is "office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake.”

Our research has revealed that a number of our sister jurisdictions have ruled that the purpose of a nunc pro tunc entry is to correct a clerical error or omission as opposed to a judicial error or omission. In Bostwick v. Van Vleck, 106 Wis. 387, 390, 82 N.W. 302, 303 (1900), the Wisconsin Supreme Court, set out "[t]he test to be applied in determining whether an error in a judgment is of a judicial character, or a mere clerical mistake which may be corrected in the court where it was made at- anytime, saving intervening rights of third parties and with due regard to equitable considerations,” as being See generally 46 Am.Jur. 2d Judgments §§ 196-203 (1969). We are in agreement with the approach outlined above. See also Maryland, Delaware & Virginia R. Co. v. Johnson, 129 Md. 412, 416-17, 99 A. 600, 601-02 (1916); Sapero & Sapero v. Bel Air Plumbing & Heating Contractors, Inc., 41 Md. App. 251, 259, 396 A.2d 317, 322 (1979). Therefore, in the light of our previous discussion as to why a judgment amount was not specified on 16 August 1979, it becomes obvious that the use of a nunc pro tunc entry was inappropriate in the case sub judice.

whether the error relates to something that the trial court erroneously omitted to pass upon or considered and passed upon erroneously, or a mere omission to preserve of record, correctly in all respects, the actual decision of the court, which in itself was free from error. If the difficulty is found to be of the latter character, it may be remedied as a mere clerical mistake, which will not have the effect to change the judgment pronounced in the slightest degree, but merely to correct the record evidence of such judgment.

Accordingly, the judgment of the trial court shall be affirmed.

Judgment affirmed.

Costs to be paid by the appellant.

      . (Footnote added). This order, dated 27 December 1978, was filed 2 January 1979.

      . For a discussion of the distinction between opening and vacating a judgment, see 46 Am. Jur. 2d Judgments §§ 680, 787 (1969).


text:
    RAYMOND ARVIL MURPHY v. STATE OF MARYLAND
    [No. 343,
    September Term, 1980.]

      Decided December 12, 1980.

      The cause was submitted on briefs to Gilbert, C. J., and Thompson and Moylan, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Victoria Salner Keating, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Ann E. Singleton, Assistant Attorney General, Peter C. Cobb, State’s Attorney for Harford County, and John L. Dunnigan, Assistant State’s Attorney for Harford County, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

In the law of evidence, a line as sharp as a razor’s edge may separate evidence which is sufficient from evidence which is insufficient to prove the identity of a criminal defendant. Our task in this case is to hone the edge.

The precise problem of identification now before us had its roots in the events of October 21, 1979, when the appellant was stopped by Deputy J.R. Taylor of the Harford County Sheriff’s Department for operating a motor vehicle with a "loud exhaust.” At that time, the appellant failed to produce a driver’s license and gave his name as "Arvil Raymond Murphy” when questioned by the deputy. Deputy Taylor proceeded to "run a check” on this name by means of the Sheriffs computer tie-in with the Motor Vehicle Administration (MVA). The "check” was unproductive. The appellant was, therefore, issued a citation for operating a motor vehicle without a driver’s license. Subsequently, it was discovered that the appellant’s true name was "Raymond Arvil Murphy,” and that he had reversed his first and second names when he identified himself to the deputy. A second investigation was made through the MVA. It bore fruit. The driving record of "Raymond Arvil Murphy” showed that his license as an operator had been revoked since July 31, 1979. On the sole basis of this record, the appellant was convicted, in the Circuit Court for Harford County (Close, J.), of driving while his license was suspended or revoked and was committed to the County Detention Center for one year.

The issue before us is the sufficiency of the driving record as evidence identifying the "Raymond Arvil Murphy” thereon as the "Raymond Arvil Murphy” charged. The trial judge’s resolution of this issue was not clearly erroneous, Md. Rule 1086, and we, therefore, affirm.

Existing law states that "[e]ven if no witness physically identifies a defendant in the courtroom, identification by name is enough.” Sallie v. State, 24 Md. App. 468, 482, 332 A.2d 316, 324 (1975). This is not, however, an unqualified position, as shown by the Sallie Court’s quotation from 1 Wharton’s Criminal Evidence § 103 (Torcia 13th ed. 1972), where it was said:

"Identical names give rise to a presumption of identity of person. This presumption is slight when the name is common and there are many persons having the same name. It increases in strength with circumstances indicating the improbability of there being two persons of the same name at the same time and place, and where there is no evidence that there is any other person bearing that name. Identity, then can be presumed from names coupled with other circumstances.” Sallie v. State, supra at 482, 332 A.2d at 324. (Emphasis supplied.)

The evidence submitted must "show directly, or support a rational inference of, the facts to be established, or the inference supported, beyond a reasonable doubt or to a moral certainty....” Vincent v. State, 220 Md. 232, 237, 151 A.2d 898, 901 (1959). See also James v. State, 14 Md. App. 689, 288 A.2d 644 (1972); King v. State, 14 Md. App. 385, 287 A.2d 52 (1972).

In the instant matter, the names were both identical and uncommon. Additionally, the driving record at issue contained not only the appellant’s full name, but his height, weight, race, and sex. Those characteristics were subject to empirical confirmation at trial. We think these were sufficient "other circumstances” connected with appellant’s name identification to have passed the threshold of the strict standard of proof set forth by Vincent, James, and King, supra.

Unquestionably, the better practice in this case would have been for the State to introduce, along with appellant’s driving record, evidence of appellant’s date of birth and residence. Such evidence would have facilitated the establishment of the identification of appellant beyond a reasonable doubt and quite possibly eliminated the necessity of this appeal.

Judgment affirmed.

Costs to be paid by appellant.