text:
    JEWEL ANN STEVENSON v. STATE OF MARYLAND
    [No. 96,
    September Term, 1977.]

      Decided October 19, 1977.

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

      Gerald A. Kroop for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Leroy Handwerger, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Acton, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The right to trial by jury and the concomitant right to plead not guilty, thus requiring the State to prove guilt beyond a reasonable doubt, are so fundamentally ingrained in our law as not to require support by citation of authority. Not quite so well established, but recognized as a basic principle, is the opportunity for an accused to plead guilty. Such a plea is, as we have indicated, an opportunity, not a right. Indeed, the court may refuse to accept a plea of guilty, enter a plea of not guilty, and direct the question of guilt vel non to be adjudicated. Md. Rule 731 c. Furthermore, the court is empowered, “when justice requires,” to strike a guilty plea anytime before sentencing, Rule 731 fl, and under certain conditions, within three (3) days after sentence. Rule 731 f2.

Ordinarily, when a plea of guilty is tendered and accepted, the case proceeds on a statement of fact, which, so long as the dictates of Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969); Davis v. State, 278 Md. 103, 361 A. 2d 113 (1976); and Miller v. State, 32 Md. App. 482, 361 A. 2d 152 (1976) are satiated, is legally sufficient.

There is, however, a new specie of plea that the prosecution and the criminal defense bar have been utilizing with growing frequency. We refer to the “plea of not guilty upon an agreed statement of fact.” That hybrid of a plea finds no express support in the Rules relative to Criminal Causes, ch. 700.

This appeal seeks to raise the question of whether the trial judge must accept such a plea. The posture of the case as it reaches us, however, precludes our undertaking to answer that cryptogenic quandary. We now explain why we are so estopped.

Jewel Ann Stevenson, appellant, was charged on two (2) indictments with receiving stolen goods and forgery. She initially sought to enter a plea of not guilty and to submit the issue on an agreed statement of fact to Judge John R. Hargrove in the Criminal Court of Baltimore. Judge Hargrove refused to hear the case in that manner. Appellant’s attorney protested the trial judge’s declination to proceed on the proposed basis, questioned the possibility of an immediate appeal, but ultimately pled his client guilty to the first counts of each indictment. Judge Hargrove sentenced appellant to concurrent three year terms of incarceration.

In this Court, appellant poses the following questions to us:

“1. Does the trial court have the right to refuse to hear a case on an agreed and stipulated statement of fact pursuant to a plea of not guilty?
2. Did the appellant’s subsequent guilty plea lack the essential voluntariness and unconditionality because the court refused to accept a plea of not guilty on an agreed stipulated statement of fact?”

By the plea of guilty subsequent to the aborted effort to proceed by way of a plea of not guilty on “an agreed and stipulated statement of fact,” the appellant has removed the first question from our consideration. This is so because a plea of guilty eliminates all defects in the proceeding except those that go to the jurisdiction of the court. Deyermond v. State, 19 Md. App. 698, 313 A. 2d 709 (1974); Waller v. State, 13 Md. App. 615, 284 A. 2d 446 (1971); Fix v. State, 5 Md. App. 703, 249 A. 2d 224 (1969). Nevertheless, the propriety of the acceptance of the plea, measured by a constitutional yardstick, is subject to appellate review. English v. State, 16 Md. App. 439, 298 A. 2d 464 (1973). See also Davis v. State, 278 Md. 103, 361 A. 2d 113 (1976).

We shall turn then to appellant’s second issue and gauge her plea of guilty by the strictures of the Constitution as pronounced by the Supreme Court of the United States in Boykin v. Alabama, supra, and explicated by the Court of Appeals in Davis v. State, 278 Md. at 114, 361 A. 2d at 119. There, Judge Digges, writing for the Court, said:

“[W]e conclude that Boykin does not stand for the proposition that the due process clause requires state trial courts to specifically enumerate certain rights, or go through any particular litany, before accepting a defendant’s guilty plea; rather, we think Boykin merely holds that the record must affirmatively disclose that the accused entered his confession of guilt voluntarily and understanding^.”

See Edwards v. State, 32 Md. App. 398, 361 A. 2d 131 (1976).

An examination of the record of the case sub judice reveals that appellant’s plea of guilty was both voluntarily and intelligently made. When interrogated by her counsel, appellant affirmatively stated that she understood the nature of the proceedings, and she conceded her actual guilt. She was informed of the maximum sentences that she could receive, yet she said she freely and voluntarily wished to plead guilty. Appellant’s constitutional rights to a trial by jury, confrontation and cross-examination of witnesses were waived ex cathedra. Judge Hargrove, as was his prerogative under then Md. Rule 720, now Md. Rule 731 c, accepted the plea of guilty as knowingly and voluntarily made.

Although counsel for appellant contends in this Court that the trial judge’s “[i]mproper refusal of ... [the plea of not guilty on ‘an agreed stipulated statement of facts’] left the ... [appellant] with no alternative but to enter a guilty plea ...”, that assertion must fall in the light of actual events. Judge Hargrove made it perfectly clear to appellant and her attorney that they could proceed, on a plea of not guilty, to trial before a jury or the court. Moreover, it was definitely and unambiguously established on the record that the court would not accept a “conditional” guilty plea. The choice put to appellant was 1) trial, by court or jury, on a plea of not guilty, or, 2) waive that right through a knowing, voluntary and unconditional plea of guilty. She chose the latter.

The record discloses that appellant’s plea was entered by her with an intelligent understanding of its consequences, and that she freely and voluntarily shucked the cloak of presumption of innocence. The plea, as entered in the case sub judice fully satisfies Boykin, Davis and Miller. Indeed, we would be hard pressed to find a case wherein the effect of a guilty plea was explained in greater detail to the accused or more intelligently made. Appellant will not now be heard to complain that she has been brought down by a self-inflicted wound made by a dart she fashioned from her own feathers.

Judgments affirmed.

Costs to be paid by appellant.

      . At the time of the happening of the events leading to this appeal, guilty pleas were controlled by then Md. Rule 721. The Rules relating to Criminal Causes, ch. 700 were amended by order of the Court of Appeals on January 31,1977, effective July 1,1977. New Rule 731 c provides:
      “The court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea. The court may accept the plea of guilty even though the defendant does not admit that he is in fact guilty if the court is satisfied that there is a factual basis for the plea. If the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty.”

      . Rules 731 fl and 731 f2 embellish former Rule 722.

      . Rule 731 c.

      . Rule 731 a provides that, “[a] defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. In addition to any of these pleas, the defendant may interpose the defense of insanity as permitted by law.” See former Rule 720.

      . There is a variety of reasons why counsel use such a plea, e.g., it is less .time consuming than a plea of guilty, minimizes post conviction attack on counsel, and provides the possibility that if an essential element of a charged offense is omitted from the statement that the “evidence” will be insufficient to convict.

      . But see Barnes v. State, 31 Md. App. 25, 35, 354 A. 2d 499, 505-06 (1976) wherein then Chief Judge Orth, for this Court, pointed up the distinction between an agreed statement of facts and evidence offered by way of stipulation.

      . We are not to be understood as to imply that the trial judge’s rejection of the manner of proceeding initially sought by appellant was a defect. The answer to that question must await the matter’s being properly raised on appeal.

      . Chief Judge Murphy and Judge Eldridge, while concurring in the result, do not read Boykin so broadly.

      . See n. 1, supra.

      . But see n. 6, supra.

      . Based on Aeschylus [525-456 B.C.], Fragment 135, (Plumptre’s translation), a Libyan fable which relates, “That once an eagle, stricken with a dart, [s]aid, when he saw the fashion of the shaft, ‘With our own feathers, not by others’ hands,'[a]re we now smitten.’ ”


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    POTOMAC ELECTRIC POWER COMPANY v. ALFRED H. SMITH et al.
    [No. 97,
    September Term, 1977.]

      Decided October 19, 1977.

    The cause was argued before Moylan, Menchine and Davidson, JJ.

      Hal C. B. Clagett, with whom were Geoffrey D. Cant and Sasscer, Clagett, Charming & Bucher on the brief, for appellant.

      Ronald A. Baradel, with whom were Hartman & Crain on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Potomac Electric Power Company (condemnor) filed a petition for the condemnation of certain lands of Alfred H. Smith and Mary W. Smith, his wife, (owners) for the construction, operation and maintenance of electric power and energy transmission lines.

Owners’ property prior to the taking comprised 26.788 acres of land in Prince George’s County. A parcel of 6.873 acres of that land, consisting of a bisecting strip 350 feet wide traversing the land, was to be acquired in fee simple. Along both sides of the fee simple strip an easement 75 feet wide was to be acquired for cutting, trimming and removing trees and brush.

The bisecting strip divided the remaining land of owners into two severed parcels. One, a parcel comprising 1.9 acres lying to the west of the taking, was severed without road access. The second, comprising 15.215 acres, lies to the east of the taking, its access unaffected.

The geological characteristics of the land and the differing views of witnesses respecting the effect thereof upon its fair market value are essential factors to which consideration must be given in a resolution of the subject dispute. We shall, accordingly, summarize the evidence relating thereto to set the stage for our discussion of the legal issue.

Owners’ land carried, as a non-conforming use, a lawful right to mine sand and gravel. All necessary permits for the exercise of that lawful right were extant at the time of the filing of the petition to condemn and the land then was being utilized for that purpose.

A real estate appraiser called as a witness by condemnor had testified that the southern portion of Prince George’s County included “in excess of 358,000 acres of land that does have gravel deposits available.” He added that “. . . my basic experience has been that the significance of gravel deposits on a tract does not tend to create a higher value than that which is normally established in the market for other uses. This has been my experience dealing with gravel people and in marketing property and also in my observations of appraisal of many, many properties throughout this area.”

He stated that his appraisal had taken into consideration the fact that gravel was to be found upon the land and acknowledged that the existence of ongoing mining operations upon it “would be an increment of value of just land value.” This witness, using the comparable sales approach to value, admitted he knew of no sale “in the southern end of the county that actually sold as an operation [such as the subject] where it was business and land combined.” He acknowledged as well that he possessed no knowledge concerning the quality or quantity of the deposits upon the land.

Condemnor offered no other testimony relating to the presence of gravel deposits or to the effect, if any, of such deposits upon the fair market value of the land being condemned.

Owners offered the testimony of an expert witness who said that 3.479 acres of the land in the area actually taken in fee simple contained gravel of very uniform grade. The stratum was described by this expert witness as a deposit of “better material than I have examined [since 1967].” The witness testified that gravel deposits in Virginia, North Carolina and Maryland averaged 70% sand and 30% gravel whereas the land within the area taken contained 60% gravel and 40% sand. He explained that this circumstance caused the subject site to be “very much better” than the average site. That witness said that test borings indicated 163,273 tons of gravel were within the area taken.

There was no testimony by any witness respecting the worth or value of gravel either mined or in place. There was no suggestion by any witness that the mineral content should be the subject of separate evaluation.

Only two witnesses gave a monetary evaluation of the damages resulting from the taking. A real estate appraiser was called as a witness by the condemnor. Alfred H. Smith, one of the property owners, gave evidence in his own behalf.

The appraiser for the condemnor expressed the opinion that the direct and consequential damages resulting from the taking were $31,150.00. Smith expressed the opinion that the direct and consequential damages resulting from the taking were $243,670.00. The inquisition found by the jury fixed the damages at $113,048.30.

Condemnor’s appeal thus states the question presented:

“Did the Court commit reversible error in instructing the jury; and in failing to instruct that in arriving at the fair market value of the property, it could not use the multiplication method?”

Owners contend: (a) that the suggested issue is not properly before this Court; and (b) that in any case, there was no error in the instructions of the trial court.

Stripped to bare bone, condemnor’s contention is that the trial judge erred in refusing to give the jury “a cautionary instruction concerning the multiplication method.”

The manner in which the subject of the use for valuation purposes of a multiplication method arose, itself has given rise to owners’ contention that the issue was not properly preserved by appellant.

' The owners requested the trial court to give, inter alia, the following Instruction No. 1:

“The measure of compensation to defendant is to be the fair market value of the property, which value depends upon the uses for which the property is available, and any special utility which may enhance its value in the market is an element to be considered.
“The land is to be valued as land with the factor of mineral deposits given due consideration. Thus the value of the land as stone land suitable for quarrying is a proper subject of your consideration.
“Further, you may give consideration to the quantity & quality of mineral that can be extracted and to the value thereof purely as evidence for arriving at the value of the land, although you may not use-the most obvious method of multiplying unit value times quantity ”

The trial judge,-acting sua sponte, struck out that portion of the requested instruction that related to a multiplication method. His reason for doing so becomes crystal clear from his comments in the course of colloquy concerning the owners’requested instruction:

“THE COURT: . .. There’s been no figures mentioned. So they won’t multiply anything. . .. They don’t know what a multiplying unit value times quantity — there’s never been any evidence in this case that — so why should I tell them about something that’s not in evidence and not an issue in this case? You can tell them. I don’t have any objection to what you say.”

During that colloquy counsel for condemnor expressed no mutual desire for incorporation in the charge of language relating to a multiplication method such as was requested by owner. Neither did he then object to the trial court’s action in deleting it. The nature of his expressed objection to the third paragraph of owners’ requested Instruction No. 1 is shown by the following quotation from the record extract:

“MR. CLAGETT: With respect to the third paragraph, may it please the Court, the second line there. I would strike the word that can be extracted and to the value and substitute in quality so that the reading thereof would be further you may give consideration to the quantity of minerals and quality thereof purely as evidenced in arriving and I would insert fair market value of the land.
THE COURT: Do you object to that? You want me to add the quantity and the quality of the mineral that can be extracted? I don’t see any objection to that.
MR. HARTMAN: If we add and quality?
THE COURT: Yes.
MR. HARTMAN: No objection.
MR. CLAGETT: So the record will reflect my objection to that extraction I am asking that the two sentences to that comma be able to read further you may give consideration to the quantity of the mineral and quality thereof purely as evidenced for arriving at a fair market value of the land.
THE COURT: All right. After I give them these instructions you can put it on the record.”

The trial judge incorporated in his charge to the jury the language of the third paragraph of owners’ requested Instruction No. 1 as amended. The objection by counsel for the appellant to that portion of the charge was articulated as follows:

“I except to that portion of paragraph three dealing with valuation of land with mineral deposits where it was considered that mineral can be extracted and the value, for the same reasons given before. I have no objections to substituting and amending by adding the word quantity and quality.... I would ask at this time that the instructions as set forth in the Smith vs ... be read as the Court approved it in that case, Smith vs. State Roads Commission.
THE COURT: All right. The only problem I have in that is that there’s no evidence in this case as to the value of any sand and gravel. I won’t allow any evidence on the value — I think I have covered it, Mr. Clagett.
MR. CLAGETT: I agree with that, Your Honor, but I think this jury should have the matter clarified with respect to the presence of such deposits contributing only to the value of the land as a whole. In other words, they cannot and must not value the minerals in place by any method to arrive at a value for the land. They must not attempt to value the minerals in place by any method.
THE COURT: I don’t think that’s the law. It’s on the record. Anything else?
MR. CLAGETT: No. I think that’s it.”

On this state of the record, owners urge: (a) that no objection to deletion of the reference to a multiplication method was made by appellant and (b) that no request for such an instruction was made by appellant. Ergo, they contend, the issue urged here by appellant is not before us, citing Maryland Rule 554 d and e.

The owners cite as well State Roads v. Creswell, 235 Md. 220, 201 A. 2d 328 (1964). That case dealt with rulings upon generalized motions to strike testimony. In one instance the Court of Appeals concluded that a partial striking of testimony by the trial judge complied fully with the apparent purpose of the motion to strike. In the second instance, the admitted evidence having been admissible in part, the general motion to strike all of the evidence was held inadequate, the Court of Appeals pointing out that, “The trial court was neither expected nor required to search the testimony and sift out the objectionable matter.” 235 Md. at 229,201 A. 2d at 332. We find the decision inapposite.

While the course followed by trial counsel for the condemnor does not fit a classical pattern of clear compliance with the demands of Rule 554 d and e, we are persuaded that the course followed by him was in substantial compliance with the rule and was sufficient to preserve the condemnor’s right to a review of the issue presented here. Merritt v. Darden, 227 Md. 589, 597-98, 176 A. 2d 205, 209-10 (1962).

Heavy reliance is placed by appellant upon the decision in Smith v. State Roads Commission, 257 Md. 153, 262 A. 2d 533 (1970), wherein the late Judge Finan, speaking for the Court of Appeals, said at 163 [538]:

“The meaning which we extract from the cases representing the majority view is that, the expert witness may definitely take into consideration as one of the factors in reaching his evaluation of the land as a whole the quantity and quality of the minerals present, and the value which they give to the land considered as a whole. However, in making this appraisal he must not value the minerals separate and apart from the land or aggregate the value of the minerals and the value of the land. Furthermore, it is our view that the expert witness should not utilize the in place unit value, or any unit value of the mineral, multiplied by the quantity in order to arrive at the evaluation of the minerals, as we think the result thus obtained would be too speculative for the reasons which have been heretofore expressed in this opinion.”

We see nothing in Smith v. SRC, supra, to indicate that the cautionary instruction approved in that case is requisite in every condemnation of land containing mineral deposits. We reiterate that there simply was no evidence in the subject case concerning “the in place unit value or any unit value of the mineral.”

In such circumstances we agree with the trial judge that in the absence of any such evidence, the instruction sought directly by the appellee and implicitly by the appellant would have required him “to tell [the jury] about something not in evidence and not an issue in this case.”

However correct the proposed instruction was as an abstract principle, it bore no relationship to the evidence presented. In Levine v. Rendler, 272 Md. 1, 13, 320 A. 2d 258, 265 (1974), it was said:

“A litigant is entitled to have his theory of the case presented to the jury, but only if that theory of the case is a correct exposition of the law and there is testimony in the case which supports it. Fowler v. Benton, 245 Md. 540, 548-49, 226 A. 2d 556 (1967), and Schaefer v. Puhlix Parking, 226 Md. 150, 152-53, 172 A. 2d 508 (1961). As Judge Prescott put it for the Court in Schaefer, ‘The trial courts, in presenting their instructions to the juries, are not required to give the juries merely abstract statements of the law that have no relation to the facts of the case being tried.’ ”

This principle has particular relevance where its effect might confuse the jury. Cf. Baltimore v. State Roads Comm., 232 Md. 145, 154, 192 A. 2d 271, 276 (1963).

We think the suggested cautionary instruction would be calculated to confuse in the absence of the slightest intimation by the court or by any witness that the sand and gravel present upon the land should be separately evaluated.

The trial judge included in his charge to the jury the following:

“Now, in making your determination, I further instruct you as a matter of law that the measure of compensation to Mr. Smith is to be the fair market value of the property, which value depends upon the uses for which the property is available and any special utility which may enhance its value in the market is an element to be considered. This land that you have heard testimony to, which you have seen, is to be valued as land with a factor of mineral deposits given due consideration. Thus that the value of this land as stone land suitable for quarrying is a proper subject for your consideration.”

We think that this specific instruction sufficiently informed the jury that separate evaluations of the land and its mineral contents were impermissible.

The legislature has prescribed by statute the damages to be awarded where part of a tract is taken. The parts of the Real Property Code Article appropriate here read as follows:

“§ 12-104. Damages to be awarded.
(b) Where part of tract taken. — The damages to be awarded where land, or any part of it, is taken is the fair market value of the part taken, but not less than the actual value of the part taken plus any severance or resulting damages to the remaining land by reason of the taking and of future use by the plaintiff of the part taken. The severance or resulting damages shall be diminished to the extent of the value of the special (particular) benefits to the remainder arising from the plaintiffs future use of the part taken.
“§ 12-105. Fair market value; assessed value.
(b) Fair market value. — The fair market value of property in a condemnation proceeding is the price as of the valuation date for the highest and best use of the property which a vendor, willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay, excluding any increment in value proximately caused by the public project for which the property condemned is needed. In addition, fair market value includes any amount by which the price reflects a diminution in value occurring between the effective date of legislative authority for the acquisition of the property and the date of actual taking if the trier of facts finds that the diminution in value was proximately caused by the public project for which the property condemned is needed, or by announcements or acts of the plaintiff or its officials concerning the public project, and was beyond the reasonable control of the property owner.”

The court’s instructions respecting damages were not less favorable to the condemnor than would have been the case if the above quoted statute had been read to the jury.

We are persuaded that viewed as an entirety, the trial court’s charge fairly and fully instructed the jury as to the applicable law governing their determination of the damages resulting from the condemnation of owners’ land by the condemnor. Finding no error, we shall affirm.

Judgment affirmed.

Costs to be paid by appellant.

      . Prince George’s County, Maryland and the State of Maryland, joined as respondents for the purpose of protecting any claim for unpaid taxes, are in no way concerned with the subject appeal.

      . The owner of land is at least presumptively competent to testify to his estimate of its value. Greater Balto. Con. Mkt. A. v. Duvall, 255 Md. 90, 93, 256 A. 2d 882, 884 (1969). His competence in this case was not attacked.

      . Multiplying total quantity of material in place by a unit price.

      . The deletions and additions shown were made by the trial judge.

      5. 257 Md. 153, 262 A.2d 533 (1970).

      . Rule 554 d and e read as follows:
      “d. Objection.

      If a party has an objection to any portion of any instruction given, or to any omission therefrom, or to the failure to give any instruction, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection. Opportunity shall be given to make the objection in open court out of the hearing of the jury upon application either orally or in writing, made before or after the conclusion of the charge.
      e. Appeal.

      Upon appeal a party in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no other errors or assignments of error in the instructions shall be considered by the appellate court.”

      . Prior codifications of the statutes similarly worded were declared to have been “a restatement of the preexisting case law.” Stickell v. City of Baltimore, 252 Md. 464, 473, 250 A. 2d 541, 546 (1969), and cases therein cited.


author: Liss, J.,

text:
    DENNIS J. LINDNER et ux. v. PETER J. WOYTOWITZ et al.
    [No. 135,
    September Term, 1977.]

      Decided October 19, 1977.

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

      Peter V. Gargano for appellants.

      Joseph L. Woytowitz, with whom was Peter J. Woytowitz on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

Dennis Lindner and his wife Jennifer are the appellants in this controversy arising out of their purchase of a one-acre lot located in the Tenth Assessment District of Baltimore County, at the intersection of Sweet Air and Manor Roads, being a part of the subdivision known as the Quinn Subdivision. The appellees, Peter J. Woytowitz and his wife, purchased the entire 103-acre tract which is comprised in the subdivision in 1969. In August of 1969 they conveyed by deed the entire tract to Co-Far Holding Corporation, a straw corporation, and in that deed imposed certain restrictions, covenants and agreements on the land. In September 1969 the land was conveyed to Manor Development Corporation, the stock of which is fully owned by the appellees. Since the original restrictions were imposed, a total of 26 lots have been conveyed to purchasers, and in each instance the deeds of conveyance to the purchasers have referred to and incorporated the aforesaid restrictions, covenants and agreements.

The appellants purchased their lot in October of 1972 and pursuant to the requirements of the restrictions submitted for approval the plans and specifications for the erection of a one-family dwelling which were approved by the appellees. Appellants erected the proposed dwelling on the lot and were residing there at the time that the controversy between the parties began. The pertinent portions of the restrictions which are the subject matter of this case are stated as follows:

“No building, fence, wall, hedge, or other structure shall be commenced, erected, placed or altered in structure or color, on any lot, until the plans and specifications ... have been approved in writing by the developer, his assigns or duly appointed agent. ... In the event of a failure of'the purchaser or purchasers of lots in QUINN to obtain the required prior written approval of plans, specifications and grading studies, as established in this paragraph, said purchasers agree to reimburse the developer or his assigns for all costs and expenses to which he may have been put as a result of said failure, including but not limited to court costs and attorneys’ fees.” (emphasis supplied).

In the summer of 1976 appellants, concededly without prior approval, erected on their premises an above-ground type swimming pool of rigid construction, with a vinyl pool liner, placed on a mound of sand which was level with the ground. The top of the pool rose four feet above ground and had a diameter of eighteen feet. Accessories included a ladder for entering the pool and a water purifying apparatus outside the pool.

On July 24,1976, a meeting was convened by Woytowitz at his home with four of the residents of. the subdivision in attendance. A request for permission by another resident to erect a fence around an in-ground swimming pojol was considered. One of the residents raised a question concerning the above-ground pool erected by the appellants without permission; and, after discussion, it was unanimously agreed that the pool was not suitable or,desirable for the subdivision. It was determined at that meeting that two other above-ground pools had also been erected without prior permission, and the appellees notified all of the offending lot owners that the installation of the above-ground pools without the requisite permission was a violation of the restrictive covenant contained in their deeds. The offending property owners were advised that the violations were to be corrected by removal of the above-ground pools. Appellants refused to comply and appellees filed a bill of complaint in the Circuit Court for Baltimore County in which they prayed that the court require removal of the above-ground pools and that they be awarded legal costs and other expenditures necessitated by the violation.

Testimony taken at the Circuit Court (DeWaters, J. presiding) disclosed that a neighbor of the appellants living at 3 Marmaduke Court had erected a similar above-ground pool in 1973, without prior permission, and that another neighbor had done likewise in 1975. Neither of the neighbors had been notified of any objection to their actions until after the meeting at the appellees’ home in July of 1976.

At the conclusion of the testimony and argument of counsel, the trial court concluded that the restrictive covenants were still in full force and effect; that the above-ground swimming pool was a structure within the meaning of the covenants; that no prior permission had been obtained for the erection of the structure, and that the equitable doctrine of laches did not bar the enforcement of the restrictions in that there had been no abandonment of the uniform scheme of development. Based on these conclusions, the trial court issued a decree granting the relief prayed by the appellees and directed that the above-ground pool be removed within 60 days. It is from this decree that this appeal is filed by the appellants.

In its ruling the trial court refused to allow the appellees any recovery for legal costs and other expenditures incurred by reason of the violation of the covenants. From this portion of the court’s ruling the appellees have entered a cross appeal.

Appellants raise five issues to be considered by this Court. They are stated as follows:

1. Did the lower court err by holding that the appellees established the fact that a uniform scheme or plan of development was proven which prohibited above-ground swimming pools?

2. Did the lower court err in finding that the language of restrictive covenant number two precludes the erection of an above-ground swimming pool?

3. Did the lower court err in finding that the appellees were not prevented from enforcing the restrictive covenant number two on the theory of abandonment?

4. Was the lower court’s ruling directing the appellants to remove the above-ground swimming pool too broad, based on the language in restrictive covenant number two?

5. Did the appellees fail to prove the allegations set forth in their bill of complaint with competent testimony?

(1)

The law of Maryland with respect to restrictive covenants was extensively discussed by Judge Hammond (later Chief Judge) of the Court of Appeals in Turner v. Brocato, 206 Md. 336, 345, 111 A. 2d 855, 860 (1954). There, citing with approval from McKenrick v. Savings Bank of Baltimore, 174 Md. 118, 128, 197 A. 580, 584 (1938), it was said:

“These cases sufficiently establish as the law of this state these principles: That one owning a tract of land, in granting a part thereof, may validly impose upon the part granted restrictions upon the use thereof for the benefit of the part retained, and upon the part retained for the benefit of the part granted, or upon both for the benefit of both; that, where the covenants in the conveyance are not expressly for or on behalf of the grantor, his heirs and assigns, they are personal and will not run with the land, but that, if in such a case it appears that it was the intention of the grantors that the restrictions were part of a uniform general scheme or plan of development and use which should affect the land granted and the land retained alike, they may be enforced in equity . . . .”

The evidence in this case established without question that the restrictions imposed upon the land were intended by the grantors to be part of a uniform general scheme or plan of development. Each person purchasing in the subdivision was advised of the restrictions; each deed contained specific reference to the covenants and restrictions; and no house, fence or other structure, with the sole exception of the above-ground swimming pools, was erected without prior submission of the plans and specifications to the developer. The test for determining whether there is a common plan or scheme of development which permits the inference of intent that the restrictions were not for the personal benefit of the grantor but rather for the common advantage and benefit of all who purchased from him, has been stated as:

“where there has been proof of a general plan or scheme for the improvement of the property, and its consequent benefit, and the covenant has been entered into as part of a general plan to be exacted from all purchasers, and to be for the benefit of each purchaser, and the party has bought with reference to such general plan or scheme, and the covenant has entered into the consideration of his purchase.” Mulligan v. Jordan, 50 N.J. Eq. 363, 364-65, 24 A. 543, 544 (1892).

(2)

Appellants contend that even assuming that the restrictions are valid, the restriction against the erection of any “structure” on the lot without prior approval does not apply to above-ground swimming pools. We do not agree.

Structure is defined in Black’s Law Dictionary (4th ed. 1968) as “Any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner. C. K. Eddy and Sons v. Tierney, 276 Mich. 333, 267 N.W. 852, 855.”

The case of Bloomfield v. Parizot, 88 N.J. Super. 181, 211 A. 2d 230 (1965) is on point. In that case, above-ground swimming pools were erected in violation of the zoning ordinance of the city of Bloomfield without first securing a building permit. Defendants contended that the pools were not structures within the meaning of the building code. The pools were quite similar to the pools here involved, being constructed of wooden studs with a plywood wall and a vinyl pool liner. They were placed on a sandbed level with the ground. The tops of the pools were above ground with a deck around the perimeter. The court held that a structure is defined as “any production or piece of work, artificially built up or composed of parts and joined together in some definite manner.” Id. at 185, 211 A. 2d at 233. Our review of the record convinces us that the above-ground swimming pool erected in this case was a structure as contemplated by the restrictive covenant in the deed and required the approval of the developer before it could be erected.

(3)

Appellants next assert that the appellees have abandoned their rights to enforce the restrictive covenants and that violations of the covenant have been acquiesced in by the Woytowitzes so as to make the covenant unenforceable. They rely upon the fact that two similar above-ground swimming pools were erected in the development in violation of the restrictions. There was conflicting evidence as to whether the appellees were aware of the installation of the pools which had proceeded without prior permission. The appellees admitted to knowing of the erection of one of the pools but claimed reluctance to enforce the restriction because the pool was being used by an invalid child of the owner. They denied knowledge of the other two violations. From these facts appellants sought to have the trial court conclude that there had been an abandonment of the restrictions.

An intention to abandon is essential. The question whether there has been such an abandonment is in each case a question of fact and must be established by evidence clear and unequivocal of acts of a decisive nature. The Court of Appeals in Kirkley v. Seipelt, 212 Md. 127, 128 A. 2d 430 (1957), a case involving the installation of metal awnings in violation of restrictions requiring prior submission and approval, said:

“The real crux of the inquiry in determining whether there has been such a change in the neighborhood so as to defeat the covenant is to ascertain the purposes to be accomplished by the imposition of the restrictions. [W]e think the reasons for them were to develop an attractive and inviting community. From the evidence, it is apparent the reasons and objects for placing the restrictions on the property are as active and as alive today as they were when first imposed.” Id. at 135,128 A. 2d at 435.

The trial court which had the advantage of seeing and hearing the witnesses concluded that the appellees had enforced the restrictions as to the 26 lots already sold in the development and clearly intended to continue to enforce them as to the 77 lots remaining to be sold and developed. From our reading of the record we are unable to find that the trial court was clearly erroneous. Rule 1086.

(4)

Appellants contend that the trial court’s order directing that the above-ground swimming pool be removed was too broad. We do not agree. The pool was erected without the prior submission and approval required by the covenants and restrictions accepted by the appellants when they purchased the property. See Speer v. Turner, 33 Md. App. 716, 366 A. 2d 93 (1976).

We point out that nothing in this opinion would preclude the appellants from submitting to the appellees for approval the plans and specifications for an above-ground swimming pool. Appellees would then be required to approve or disapprove in accordance with the principles enunciated in a number of cases, the most recent of which is Harbor View Improvement Ass’n v. Downey, 270 Md. 365, 372, 311 A. 2d 422, 426 (1973), where the Court of Appeals, quoting with approval its opinion in Carroll County v. Buckworth, 234 Md. 547, 200 A. 2d 145 (1964), said:

“Restrictions in similar terms requiring submission and approval of plans have been upheld in Peabody Heights Co. v. Willson, 82 Md. 186, 32 A. 386; Jones v. Northwest Real Estate Co., 149 Md. 271, 131 A. 446; and in Kirkley v. Seipelt [supra]. The latter cases show that approval or disapproval must be reasonable and that power must be exercised in good faith.”

See also 20 Am. Jur. 2d Covenants, Conditions, etc. § 183 (1965); and Annot., Restrictive Covenant Consent to Build, 40 A.L.R.3d 864 (1971).

(5)

Appellees sustained the gravamen of their case when they produced testimony that the appellants had erected the “structure” involved in this case without prior submission to and approval by the appellees in violation of the existing restrictions and covenants. We find no merit in the appellants’ argument as to the sufficiency of the evidence.

(6)

Cross appellants, the Woytowitzes, contend that the trial court erred in refusing to allow reimbursement to them for costs and expenses to which they have been put as a result of the appellants’ failure to abide by the covenants and restrictions, that reimbursement to include, but not be limited to, court costs and counsel fees. The short answer to their appeal is that they have not established any right to-such an award. The original suit was filed by the appellees in proper person, both by the Woytowitzes and by Manor Development Corp. No testimony as to any expenses incurred by the cross appellants was offered in the trial court. While the request for reimbursement was made in the original bill of complaint and was disposed of by the trial court in its decree, there is no evidence from which we could conclude that the trial court was clearly erroneous in its conclusion that the cross appellants were not entitled to counsel fees or other reimbursement. Md. Rule 1086.

Decree affirmed; costs of original appeal to be paid by appellants; costs of cross appeal to be paid by cross appellants.

      . The cross appeal filed by the Woytowitzes as to the issue of counsel fees will be addressed in section 6 of this opinion, infra. For the purpose of convenience, those sections dealing with the original appeal will refer to the Lindners simply as appellants and the Woytowitzes as appellees.


author: Moore, J.,

text:
    LEWRON TELEVISION, INC. v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA
    [No. 40,
    September Term, 1977.]

      Decided October 20, 1977.

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

      Jay V. Strong, Jr., with whom was Edward L. Blanton, Jr., on the brief, for appellant. -

      Jeffrey L. Gibbs, with whom were I. Duke Avnet and George H. Cohen on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal, involving the application of the long-arm statute, Md. Cts. & Jud. Proc. Code Ann. § 6-103 (1974), to a labor union International, has already acquired a three-year history. Plaintiff-appellant has not, thus far, advanced beyond the stage of service of process. Our mandate leaves it at the starting line.

I

In September 1974 the plaintiff, Lewron Television, Inc., a Maryland corporation, filed a Declaration in the Superior Court of Baltimore City charging the defendant, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (hereinafter the “International”) with intentional •interference with contractual relations, and seeking more than $11 million in compensatory and punitive damages. The International is an unincorporated association which maintains its principal office in New York City. Service of process was made in Baltimore upon an officer of Local 833 of the union. The defendant International moved to quash service on the ground that the Local was an entity separate and distinct from the International, and was not authorized to accept service on behalf of the International. On January 2, 1975, Judge James W. Murphy granted the motion to quash, with leave to reissue under the Maryland Rules.

Plaintiffs summons was reissued and, in February 1975, Walter F. Diehl, the President of the International, was served by mail in New York City, pursuant to Rule 107. Defendant filed a new motion to quash service, stating that the Declaration failed to allege any facts tending to show that the defendant was doing business in Maryland, as required under the long-arm statute, or that jurisdiction would be consistent with Fourteenth Amendment due process. On May 22, 1975, Judge Murphy granted the second motion to quash, finding plaintiff had “failed to establish that Defendant directly or by an agent ‘regularly does or solicits business, engages in any other persistent course of conduct in the state or derives substantial revenue from goods, food, services or manufactured products used or consumed in the state.’ See: Zinz v. Evans & Mitchell Industries, 22 Md. App. 126.”

Prior to the court’s ruling, plaintiff had prepared a “Response” to defendant’s reply to a memorandum of points and authorities in opposition to the motion to quash. This document, in which plaintiff requested time for discovery proceedings, had evidently not been received when the motion to quash was granted. Therefore, on June 12, 1975, Judge Murphy vacated the judgment previously entered, and granted the plaintiff sixty days to complete discovery on the question of whether jurisdiction over the defendant was conferred by the long-arm statute.

Following discovery, a hearing was held on June 1, 1976 before Judge Shirley B. Jones and, after the submission of post-hearing briefs by both parties, defendant-appellee’s motion to quash service on the ground of lack of jurisdiction was granted. This appeal was taken from Judge Jones’ ruling.

II

The ultimate question before us may be stated quite succinctly: Did the defendant International have the requisite “minimum contacts” with the State of Maryland to be subject to suit on a cause of action which did not arise in this State? The lower court twice answered this question in the negative, and we agree.

In determining whether the Maryland courts may exercise in personam jurisdiction over an out-of-state defendant, the provisions of the long-arm statute, Md. Cts. & Jud. Proc. Code Ann. § 6-103 (1974), must be satisfied in a manner not inconsistent with the due process clause of the Fourteenth Amendment to the federal constitution. Malinow v. Eberly, 322 F. Supp. 594 (D. Md. 1971). Due process is, of course, the primary consideration, and its requirements were enunciated by the Supreme Court in the now familiar case of International Shoe Co. v. Washington, 326 U. S. 310 (1945), in an opinion by Chief Justice Stone:

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 326 U. S. at 316. (Citations omitted; emphasis added.)

Although due process may be satisfied where the contacts of the out-of-state party are relatively few based on the “quality and nature of the activity,” Id. at 319, “it has been generally recognized that the casual presence of the corporate agent or even his conduct of single or isolated items of activities are not enough to subject it to suit on causes of action unconnected -with the activities there. Id. at 317. (Emphasis added.) See also Hanson v. Denckla, 357 U. S. 235 (1958); McGee v. International Life Insurance Co., 355 U. S. 220 (1957).

The Maryland long-arm statute, now codified at § 6-103 of the Courts Article, was enacted in 1964 for the purpose of extending personal jurisdiction over out-of-state parties to the fullest extent constitutionally permissible. Malinow v. Eberly, supra, at 598; Van Wagenberg v. Van Wagenberg, 241 Md. 154, 215 A. 2d 812, cert. denied, 385 U. S. 833 (1966); Geelhoed v. Jensen, 277 Md. 220, 352 A. 2d 818 (1976); and “the reach of the statute will largely depend upon whether Maryland in persona,m jurisdiction may be asserted under the Fourteenth Amendment.” Krashes v. White, 275 Md. 549, 559, 341 A. 2d 798, 804 (1975).

It is not disputed that the instant appeal involves only the application of § 6-103 (b) (4) of the statute. This section provides:

“(b) In general. — A court may exercise personal jurisdiction over a person who directly or by an agent:
“(4) Causes tortious injury in the state or outside of the state by an act or omission outside the state if he regularly does or solicits business, engages in any other persistent course of conduct in the state or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the state [.]” (Emphasis added.)

While in personam jurisdiction thus may be obtained over an out-of-state defendant even where the alleged injury has occurred outside Maryland, in such a case due process requires “other contacts between the [defendant] and the state [to] be fairly extensive before the burden of defending a suit there may be imposed .. . without offending ‘traditional notions of fair play and substantial justice.’ ” F. James, Civil Procedure 640 (1965); Ratliff v. Cooper Laboratories, Inc., 444 F. 2d 745, 748 (4th Cir.), cert. denied, 404 U. S. 948 (1971); Egeria, Societa di Navigazione Per Azioni v. Orinoco Mining Co., 360 F. Supp. 997 (D. Md. 1973).

Ill

Having stated the constitutional and statutory guidelines which govern our decision in this case, we shall relate the operative facts as we have gleaned them from the record.

The International, as previously noted, is an unincorporated association having its principal office in New York. It maintains no office in Maryland, but does have a branch office in Los Angeles, California. Approximately 900 local unions throughout the United States and Canada are affiliated with the International. It has approximately 65,000 members of whom approximately 190 are members of two locals in this State. It maintains no bank accounts in Maryland, has no accounts receivable from Maryland nor any interest in Maryland real property, nor does it have any investments of any kind within the State.

None of the acts of the International upon which plaintiffs claims are based was committed in Maryland. Rather, the alleged tortious conduct occurred in New York and California.

The Constitution of the International sets forth the purposes of the organization, and explains the powers of the International vis-a-vis the locals. Such purposes are expressed, in Article One, Section 2, as the improvement of social and economic conditions for employees in the various fields of endeavor encompassed by the union’s membership, the assurance of employment for members, and the maintenance of fair wage payments. The membership of the International comprises, for the most part, the members in good standing of all locals holding a charter from the International.

Several sections of the Constitution indicate powers which the International holds over its local units. Article Seven, Section 9 states that the International President may order the officers of a local to submit its books and records for inspection whenever it may be deemed expedient. Section 10 of the same article allows the President to order members to refrain.from rendering service to employers who may be indebted to other members. The President is further given the pcwer, by Section 16, to invoke sanctions against local unions for failure to meet financial obligations to the International, or even, in certain emergency situations, to “take over all books, records, credits and property of such union of every nature whatsoever. . . .”

Revenues from the local are derived by the International for certain items, described in Article Fourteen of the Constitution: a “per capita tax” is imposed on locals in accordance with their active and retired membership; and a charter fee of $100 is also charged locals wishing to affiliate with the International. In addition, a defense fund has been established through assessment of individual members, such monies to be used to defray legal and other expenses, where a local was “faced with an unauthorized strike or a lock-out.”

Article Nineteen of the International’s constitution focuses upon the “Powers and Duties of Local Unions.” This Article makes clear that the locals are autonomous bodies, independent in all major respects, except for the fact that they have chosen to associate themselves with a central advisory unit, 'namely, the International. Section 2 is particularly revealing, and we quote it in its entirety:

“Section 2. Home Rule.
Home Rule is granted to all affiliated local unions of this Alliance and this shall be construed to confer upon each local union the authority to exercise full and complete control over its own affairs; provided, however, that no local union shall take any actions or adopt any laws which conflict with any portion of the Constitution and By-Laws.” (Emphasis added.)

The affiliated locals, under Section 3, are empowered to adopt their own constitutions and by-laws for self-government, although the approval of the International President is required for such documents. Further evidence of the autonomy of the locals is provided in Section 15, which permits locals to “execute written contracts with local managers and other employers regulating conditions of employment of all members within their jurisdiction.” Each local was authorized “to fix the scale of wages within its jurisdiction.”

We note also, from an affidavit of the International’s President contained in the record, that the sum of the local’s powers is quite broad: the local has its own constitution and by-laws; maintains its own treasury; nominates and elects its own officers; conducts its own meetings; collects its own fees and dues; passes upon the qualifications of all membership applicants; “engages in its own organizing activities, negotiates its own contracts with employers and administers such contracts on its own including the handling of grievances with employers”; institutes its own legal and arbitration proceedings and enters into settlements without approval by the International; determines its own expenditures, and, “in general, establishes its own policies, vis-a-vis employers and with respect to internal matters and conducts its own affairs without supervision by the International.” (Emphasis added.)

IV

As we understand appellant’s position, two closely related arguments must be considered in determining whether the International should be subject to the jurisdiction of the Maryland courts. First, we must decide whether the activities of the International in Maryland satisfy the “minimum contacts” test of due process. Second, it must be determined whether the relationship between the International and the locals in Maryland is one of principal and agent, whereby the activities of. the local are to be attributed to the International, thereby complying with due process and the requirements of the long-arm statute. We now consider the cases on both issues.

The appellant relies heavily in its brief upon a New Jersey case in which the same International before us now was a party. In Moran v. International Alliance of Theatrical Stage Employees, 52 A. 2d 531 (N.J. Ch. 1947), plaintiff, a New Jersey resident and unemployed projectionist, filed a bill in equity against the defendant International and a New Jersey local to compel acceptance of his membership application. The court noted that the International exercised a degree of centralized supervision over its constituent locals, and often sent representatives to assist the locals in various matters. The chancellor found that the International was amenable to service of process in New Jersey, stating:

“I am of the opinion that an association which grants rights and imposes duties on its individual members wherever located and which claims every state of the Union as its field of operation through the establishment in those states of component parts of its organization, by which units or agencies it engages in activities designed to further the objects for which it was organized, which objects can be achieved only through the operation of its units, should be regarded as voluntarily submitting itself to the jurisdiction of those states when duly served with process and should not be permitted to say that it is amenable only to the courts of the state in which it maintains its headquarters.” 52 A. 2d at 534.

We do not regard the Moran case as persuasive authority. The decision contains no mention of the then newly-enunciated due process jurisdictional requirements in International Shoe, supra, and it is somewhat unclear, because of a dearth of reported facts, as to whether the court relied upon the International’s own contacts with New Jersey, or the activities of the local, as agent for the International. Furthermore, the injury alleged by the plaintiff occurred in New Jersey, by virtue of the union’s refusal to accept his membership application in that state.

The activities of Internationals were found to be of sufficient scope for jurisdiction to be exercised locally in International Union of Operating Engineers v. J. A. Jones Construction Co., 240 S.W.2d 49 (Ky. 1951) and Edgar v. Southern Railway Co., 49 S.E.2d 841 (S.C. 1948). In Jones, the local and International had a common constitution, delegating all supervisory rights to the International; labor agreements were also subject to the approval of the International. In Edgar, the International had established committees for adjustment of disputes with employers, and it prosecuted all activities as would a local labor union. The above two cases were cited with approval in Beaty v. International Association of Heat & Frost Insulators, 102 S.E.2d 763 (N.C. 1958), in which the court held that the International was “doing business” in North Carolina where it exercised complete dominion over the activities of local units and supervised contract negotiation with employers. The Beaty court noted: “International unions with Charter provisions similar to the ones here considered have, through their control and dominance of local unions, been held, in well-considered cases in other States, to be doing business in places other than the place of their residence.” 102 S.E.2d at 766-767. See also Spica v. International Ladies Garment Workers' Union, 130 A. 2d 468 (Pa. 1957).

The rule in every jurisdiction which has considered this issue appears to be that the degree of control exercised by the out-of-state International over its constituent local determines whether the International will be subject to the jurisdiction of the courts of the forum. One of the most significant controls of the International is its participation in collective bargaining negotiations with employers. In Brooks v. International Brotherhood of Boilermakers, 114 N.W.2d 647 (Minn. 1962), plaintiff alleged that the defendant International had wrongfully ratified and refused to investigate the local’s expulsion of him from its chapter. The court, in considering whether the International was subject to suit in Minnesota, noted that it had engaged in extensive control over the local’s activities, including participation in collective bargaining agreements with employers. It was held that the exercise of jurisdiction over the International was constitutional, especially in view of the fact that plaintiff’s cause of action was “closely tied up with the harm resulting from defendant’s many activities in (the] state....” 114 N.W.2d at 654. See also Calagaz v. Calhoon, 309 F. 2d 248 (5th Cir. 1962).

Other cases have considered the more narrow question of whether the local may be considered the “agent” of the International for purposes of satisfying due process and statutory requirements for the exercise of jurisdiction. We note, before discussing those cases, that the mere fact that an International and its constituent locals are “separate entities” does not establish that the local may not be the agent of the International, as suggested in the International’s brief in this case. But see United Slate Tile and Composition Roofers Local 80 v. United Brotherhood of Carpenters and Joiners of America Local 101, 185 Md. 32, 42 A. 2d 913 (1945) and Martin v. United Slate, Tile and Composition Roofers, 189 Md. 383, 56 A. 2d 28 (1947).

In EEOC v. Raymond Metal Products Co., 385 F. Supp. 907, 911 (D. Md. 1974), aff'd in part, rev’d in part, 530 F. 2d 590 (4th Cir. 1976), “[t]he presence or absence of an agency relationship between the [International and local] [was] the critical factor in determining [the] Court’s jurisdiction over the International.” See also Moody v. Albemarle Paper Co., 271 F. Supp. 27, 29 (E.D.N.C. 1967). The court in Raymond Metal Products, in an opinion by Chief Judge Northrop, held that agency was established as between the International and the local, and service upon the local was sufficient to obtain jurisdiction over the International. The existence of an agency relationship was based upon a provision in a labor-management agreement between the local and the employer that the former would act as representative for the International.

The issue before the court in Isbrandtsen Co. v. National Marine Engineers’ Beneficial Association, 9 F.R.D. 541 (S.D.N.Y. 1949), was again whether a local, subordinate association was the agent of the national association, thereby validating service upon the business manager of the local in a suit against the national union. The court held in this case that service upon the local was improper, since the “national and local [were] autonomous entities,” 9 F.R.D. at 544, the local having its own officers, distinct from the national’s officers, and being capable of retaining its own assets in the event its charter was revoked by the national. Further, the constitution of the national union, viewed as a whole, did not indicate an agency relationship with the local. Id. at 543.

Finally, in Claycraft Co. v. UMW, 204 F. 2d 600 (6th Cir. 1953), the issue presented was “whether District 50 and the International [were] separate autonomous entities, or whether District 50 [was] merely a part of the International and an agency through which it carriefd] on its work.” 204 F. 2d at 601. The court found that the local union was an agent for the International, since District 50 did not have its own constitution, and “ ‘general and complete supervision over, and administration of the affairs of the District,’ ” under its “rules,” were in the hands of an administrative officer of the International. Id.

V

It is clear in this case that the activities of the International itself in Maryland are not of sufficient magnitude for it to be constitutionally subject to the jurisdiction of the courts in this state. A very small percentage of its membership, less than one-third of one percent, resides in Maryland, and its activities in Maryland have been limited to rare occasions when it has participated in collective bargaining conferences, at the request of the local. The International and local are “separate entities,” having their own by-laws and constitutions. Certainly, there is an affiliation between the two organizations. We do not believe, however, that the connection between them is such as to render the local a mere arm of the International, whereby the local’s activities and those of the International may properly be considered one and the same.

Jurisdiction over the International in Maryland may not be obtained under the long-arm statute or in a manner consistent with due process. The law is settled that the contacts of an out-of-state entity must be “fairly extensive” before it will be subject to the jurisdiction of the forum, where the cause of action occurred outside the forum’s boundaries. International Shoe Co. v. Washington, supra; Ratliff v. Cooper Laboratories, Inc., supra. None of the plaintiffs claims, by any stretch of the imagination, may be said to have arisen in Maryland, caused injury in Maryland, or to be connected in any way with this jurisdiction. Since the plaintiff has obviously conducted business in the two states where its causes of action appear to have arisen, in both of which the International maintains business offices, it is clear to us that Maryland has no legitimate interest in this matter, and no power to subject the defendant to the jurisdiction of its courts.

Judgment affirmed; appellant to pay the costs.

      . The International further stated, in answer to plaintiffs interrogatories, that it “does not participate in bargaining between employers and locals unless the local encounters a serious disagreement with the employer and asks the International for assistance... but,.. [the International] has no power to consummate an adjustment unless it meets with the approval of the affected local.” We are further told that the International has been called upon to render such assistance to its Baltimore locals only four times in the past ten years.

      . The opinion in Moran sets forth insufficient facts for us to determine whether the International, at that time, had any greater degree of control over its locals than it does now.

      . The issue discussed herein was not a part of the matter appealed.

      . We fail to understand the appellee’s contention that a “separate legal entity,” i.e., the local, can never be an agent for the International, in view of the fact that its counsel represented the International in the above case.


author: Wilner, J.,

text:
    ARCHWAY MOTORS, INC. v. WALTER F. HERMAN
    [No. 415,
    September Term, 1977.]

      Decided October 20, 1977.

      The cause was argued before Morton, Melvin and Wilner, JJ.

      Charles F. Obrecht, Jr., for appellant.

      William R. Lenhard and Edward L. Zamarin for appellee.
   Wilner, J.,

delivered the opinion of the Court.

The question before us is whether the Circuit Court of Baltimore City erred in refusing to grant specific performance and ancillary monetary relief upon finding a breach of a contract for the sale of real estate. We think it did.

The appellant, Archway Motors, Inc., owned two parcels of real estate in Baltimore City that it wished to sell. One parcel appears to be unimproved; the other is improved by 92 brick garages. We are concerned with the second, or improved, parcel.

Archway employed A. J. Billig & Co., auctioneers, to sell the two parcels at public auction. Billig advertised the sale in The Daily Record on March 4, 1975, which was the same day as the auction. The advertisement generally described the property, gave notice of the time and place of the sale, and stated:

“TERMS OF SALE: A cash deposit or certified check for $500.00 on each parcel at time of sale. Balance to be paid in cash in 30 days. All adjustments as of date of sale. Cost of all documentary stamps and transfer taxes to be paid by purchaser. Time is of the essence.”

The auction was conducted on the premises in accordance with the notice. Appellee, Walter Herman, who happens to be the real estate, business, and finance editor of the Baltimore News American, attended the auction and was the successful bidder for the improved parcel. To evidence his purchase, he signed the following contract:

“I, Walter F. Herman, have this day purchased at Public Auction for the price of $675 the Fee Simple Garage Properties situated in rear of 3500 W. Franklin Street, and 500 block Edgewood St. — in rear of 3500 block Edmondson Ave., more fully described in the Daily Record advertisement of March 4,1975, from Archway Motors, Inc., Owners, of which a deposit of Five Hundred ($500.00) Dollars has been paid. Balance of purchase money to be paid IN CASH within 30 days. Time is of the essence. All rents, taxes, and expenses to be adjusted to date of sale. Subject to any and all agreements, restrictions, covenants and easements of record affecting the same, if any. All documentary stamps to be borne by purchaser. All transfer taxes to be paid by purchaser. The Daily Record Advertisement of March 4, 1975 is hereby incorporated herein.”

On March 26, 1975, Archway’s president, Alan Abramson, wrote to appellee at his home address reminding him of the contract, and stating:

“Under the terms of the contract the balance of the purchase price is to be paid and final settlement is to occur within 30 days; this, of course, means by April 4,1975. Time is of the essence.”

On either April 3 or April 4, appellee called Mr. Abramson and, according to Abramson, acknowledged receipt of the March 26 letter and said that he was ready to settle for the property. Abramson suggested that appellee have an attorney handle the settlement. Appellee said that thajt would not be necessary, and instead asked Abramson to have the deed prepared and sent to him. Within ten days, Abramson executed and acknowledged a deed for the property, which, along with a settlement sheet showing a balance due Archway of $284.78, he mailed to appellee at his home address. Abramson and his secretary testified that these documents were duly deposited in the U. S. mail, properly addressed, on April 14, 1975. Appellee denied ever receiving them.

Nothing further occurred until six months later. On August 14,1975, Archway received a formal notice from the City Department of Housing and Community Development that the condition of the subject property violated various sections of the City Building Code, and that these violations would have to be corrected either by razing or rehabilitating the garages. This was the first notice Archway had of any violations. It responded to the notice by letter dated August 18, in which it informed the Department that the property had been sold to appellee.

After apparently checking the Land Records and finding that the deed to appellee had not been recorded, the Department, on September 8, 1975, warned Archway that unless the violations were corrected, legal action and possible penalties would ensue. This was no idle threat; for, on December 4, 1975, Archway was summoned into the District Court and tried for the violations. The court entered probation before judgment pending a determination of ownership of the property, conditioned upon Archway placing the garages in a condition satisfactory to the Department, short of actual razing or rehabilitation.

To comply with this condition, Archway claims to have expended $2,507.96 for materials and labor, the labor being supplied by some of Archway’s regular employees. It also was required to pay the 1976-77 real estate taxes on the property, amounting to $513.13.

On January 16,1976, Archway filed a Bill of Complaint, in which it asked for an order requiring appellee to record the deed and for a judgment for $25,000 damages. In the alternative, the Bill asked that, if the original deed were lost or destroyed, the court order appellee to accept and record a new deed, to be effective April 15,1975, and for “such other and further relief as the nature of this cause may require.” For the next two months, efforts were made to serve appellee at both his home and his place of business, without success. Summonses were issued on January 16, February 2, February 23, and March 16, all of which were returned “non est.” Finally, on March 23, appellee was served at his home by a private process server. He failed to respond to the summons; and on May 6, 1976, a Decree Pro Confesso was entered against him, notice of which was sent to him at his home by the Clerk of the Court.

On May 19, 1976, appellee sent a letter to the Clerk on News American stationery in which he stated that he had never been served with any papers, didn’t know how a decree could be entered, and that “if this is the way the Baltimore City courts handle things of this sort, then it bears investigation.” He signed the letter as “Business Editor”. The Clerk responded to appellee’s letter, advising him of the Return of the Private Process Server and inviting him to view the file during normal court hours.

At this point, appellee retained counsel, who, on September 27, 1976, moved to set aside the Decree Pro Confesso. His motion was granted, and on October 13, 1976, ten months after the Bill of Complaint was filed, appellee filed an Answer to it. The case was tried December 2,1976.

In his Answer, and at trial, appellee asserted that he had never received the deed from Archway, and that the contract was void because of a misrepresentation as to the potential use of the property.

The chancellor rejected the first defense, correctly, we think, on the basis that whether or not appellee received the deed was irrelevant. He had entered into the contract; and, as buyer, it was his obligation to proceed with settlement.

As to the claim of misrepresentation, appellee testified that, in an attempt to induce him to bid on the property, Mr. Billig had told him that (1) there were no “violations” on the property, and (2) he could rent out “the center sections” to contractors for $200 per month. Mr. Billig denied making any such representations. He testified:

“We said the properties were sold as is, where is and how is. We guaranteed the title to be free and clear and merchantable.”

With respect to the question of “violations”, the fact is that, at the time of the auction, there had been no violation notices issued; and thus, even if such a representation had been made, it would have been true. Moreover, in testifying about his alleged conversation with Mr. Billig, appellee stated that he had told Billig, “I don’t believe with the condition here there are no violations; it’s a little strange.”

On the question of whether the garages could be rented commercially, appellee stated that “several months later” he checked with the Zoning Board and discovered that the garages could only be used for residential purposes. This was not persuasive to the chancellor, however, for, in ruling on the issue of misrepresentation, he stated:

“I can’t believe he was misled or induced, as he characterized it. ... I think what he did was decide after he made it [the contract] that it was a bad deal, and notwithstanding that he wasn’t going to go ahead and invest any more money into what he considered a bad deal. Perhaps he acted hastily, perhaps not. That is not before me. The point is he is certainly more than an initiated [sic, uninitiated?] buyer that normally attends these sales. He can stand on a par with all the professional real estate agents as far as I’m concerned. I am not persuaded one way or another that he was misled, induced or ill-advised or there was any misrepresentation to him.”

Thus, in effect, the chancellor found the contract to be valid and binding on appellee, and his breach of it to be legally inexcusable. The evidence clearly supports those findings.

The chancellor then stated:

“The question in my mind is really what relief to afford here. I don’t believe that Mr. Abramson should be in a position of being continually subject to Housing Court violations. Perhaps that’s why his counsel is strenuously urging the Court to decree specific performance of the contract of sale. On the other hand, I don’t know whether decreeing specific performance in the case of Mr. Herman would, in fact, accomplish the desired result. It is not a matter of simply appointing a trustee, and I don’t feel that a decree of specific performance, if in fact it is going to be ignored, would accomplish much. I wouldn’t want to have to face the prospect of holding a contempt hearing on Mr. Herman. I don’t enjoy that sort of thing.”

From this and other colloquy between the chancellor and counsel for appellant, it is evident that the chancellor assumed that appellee would simply ignore a court decree of specific performance; and that, as a result, either the decree would be a “nullity”, or that the court would be put to the distasteful task of enforcing it through contempt proceedings.

On that basis, the chancellor denied the request for specific performance. With respect to damages, he rejected Archway’s request to be compensated for the $2,507 expended to that point to satisfy the Department of Housing and Community Development, and refused to consider any future cost that would be required to correct the violations. Instead, on April 25, 1977, nearly five months after the hearing, the chancellor issued an Order that $1,045.18 (including the $500 deposit) be paid by appellee as damages for his breach. The Order contains no breakdown or explanation of how this amount was calculated.

In this appeal, Archway contends that it was entitled to specific performance, and that the chancellor abused his discretion in refusing to grant it. Additionally, Archway claims that it is entitled to ancillary compensation for losses caused by appellee’s delay in performance, measured from April 4, 1975, to the date of actual performance, including reimbursement for all sums expended by Archway to comply with the order of the District Court.

I.

Specific Performance

Specific performance is considered an extraordinary equitable remedy which may be granted, in the discretion of the chancellor, where more traditional remedies, such as damages, are either unavailable or inadequate.

This extraordinary remedy has been particularly recognized as appropriate where the contract is for the sale of land because of the presumed uniqueness of land itself, no parcel being exactly like another. Although it has most frequently been granted at the behest of the buyer to compel the seller to convey the land, the criteria justifying its use have also been found operative where the seller is its seeker. Thus, the Restatement of Contracts § 360 (1932), states:

“Damages are regarded as an inadequate remedy for the breach of a promise
(a) to transfer any interest in specific land, or
(b) to buy and pay for such an interest, so long as the transfer has not yet been made;
and specific performance will be decreed, subject to the rules stated in § § 359-380.”

The rules in § § 359-380 are not applicable to this case, and thus the statement stands as expressive of the law. In Comment c. to § 360, the authors discuss the inadequacy of damages as a seller’s remedy, as follows:

“Before conveyance has been made by the vendor his remedy in damages is not an adequate one. He can not get judgment for the full price, because he still has the land. His damages are usually measured by the contract price less the value of the land retained; but the land is a commodity that has no established market value, and the vendor may not be able to prove what his real harm will be. Even if he can make this proof, the land may not be immediately convertible into money, and he is deprived of the power to make new investments. Prior to getting a judgment, the existence of the contract, even though broken by the vendee, operates as a clog on salability, so that it may not bq possible to find a purchaser at any fair price. In addition, the fact that specific performance is available to the vendee is of some weight, because of the rule as to mutuality of remedy (see § 372 (2)).”

In general support of the Restatement rule, and offering additional reasons why specific performance is, or should be, available to the seller, is Corbin, On Contracts, § 1445 (1964). See also 81 C.J.S. Specific Performance, § 77c (1977); Pomeroy Specific Performance of Contracts, § 6 (3d ed. 1926).

That specific performance is not only available but a preferred remedy to a contract seller of land is firmly rooted in the law of Maryland. In Maryland Clay Co. v. Simpers, 96 Md. 1 (1902), the court stated, at pages 5 and 6:

“If the purchaser may compel the vendor by such a proceeding to convey the land, there ought to be no reason why the vendor cannot require the purchaser to pay the stipulated price and accept a conveyance. One of the essential requisites of a contract that may be enforced is mutuality....
“It can scarcely be said that a contract is mutual — that it operates alike on both parties — when one of them to it may invoke a remedy for its non-fulfillment which is denied to the other for a similar breach. If the purchaser may invoke the jurisdiction of equity, as he undoubtedly may, because he is entitled to have the specific land he has bought; then the vendor is equally entitled to appeal to the same jurisdiction to compel the purchaser to take the land and to pay the price agreed to be paid.”

Continuing, the court concluded, on pages 6 and 7:

“In other words, if one of the parties to a contract for the sale of land has the right to its specific execution, then both have that right; and if one has not that right then neither has the other. This remedy has been applied in Maryland when invoked by the vendor of land. Wilson v. Blount, 93 Md. 30; Canton Co. v. B. & O. R. R. Co., 79 Md. 424.”

The court dismissed the contention that a seller’s right to damages barred the use of specific performance, noting, on pages 7 and 8:

“It is the established doctrine that specific execution of a contract will not be decreed where there is an adequate and complete remedy at law by way of compensation in damages.... But it is equally well settled in Courts of equity ‘that in general the legal remedy of damages is inadequate in all agreements for the sale or letting of land, or of any estate therein; and therefore in such class of contracts the jurisdiction (of equity) is always exercised, and a specific performance granted, unless prevented by other and independent equitable considerations which directly affect the remedial right of the complaining party.’ 1 Pom. Eq., sec. 221. The reason for this rule is obvious. The measure of damages for a refusal to take the land and to pay the price agreed to be paid would, in an action at law, be the difference between the real value of the land sold and the contract price. . . . Now, the difficulty of proving the actual value of the land makes the standard by which the vendor’s damages are to be measured exceedingly uncei-tain. The [buyer] has not taken possession of the land and hence the vendor cannot proceed at law for the recovery of the purchase money or declare specially on the contract of sale, but would be remitted to an action for a breach of the contract. In this situation, confronted in a Court of law by a standard as a measure of damages which would be uncertain in its result for such a breach, there cañ be no adequate remedy for the vendor other than in a Court of Equity where the purchaser may be decreed to accept a conveyance and to pay the amount which he has contracted to pay.”

Some of these concepts were succinctly reaffirmed in McKeever v. Realty Corp., 183 Md. 216 (1944), where the Court said:

“Where land, or any estate therein, is the subject matter of an agreement, the equitable jurisdiction is firmly established. Whenever a contract concerning real estate is in its nature and incidents entirely unobjectionable, it is as much a matter of course for a court of equity to decree its specific performance as it is for a court of law to give damages for its breach. 4 Pomeroy, Equity Jurisprudence, 5th Edition, Sec. 1402. The reason for the rule is that the measure of damages in a court of law for breach of a contract for conveyance of land is uncertain, and there can be no adequate remedy other than in a court of equity where specific performance can be decreed.”

Finally, with respect to the adequacy of damages, if the rules laid down in these cases are not clear and controlling, Md. Ann. Code art. 16, § 169 is. It provides:

“No court shall refuse to specifically enforce a contract on the mere ground that the party seeking its enforcement has an adequate remedy in damages, unless the party resisting its specific enforcement shall show to the court’s satisfaction that he has property from which such damages may be made, or shall give bond, with approved security, in a penalty to be fixed by the court, to perform the contract or pay all such costs and damages as may, in any court of competent jurisdiction, be adjudged against him for breach or nonperformance of such contract.”

There is nothing in the record to show compliance with the conditions of this statute by appellee. The purpose of the statute, which was first enacted in 1888, was defined by the Court of Appeals in Neal v. Parker, 98 Md. 254 (1904), as follows:

“It was doubtless the policy of the Legislature in adopting it to do away with the technical defenses to proceedings in equity instituted to compel parties to live up to their undertakings, and it was designed to preclude individuals who had entered into binding contracts from repudiating them at pleasure by merely electing to pay such damages for their breach as a jury in an action of law might assess.”

It is true, of course, that the question of whether specific performance should be decreed, even with respect to a contract for the sale of land, is within the sound discretion of the chancellor. However, as has been stated on numerous occasions, by both the Court of Appeals and this Court:

“The exercise of the court’s discretion.. . . must not be arbitrary and is controlled by established principles of equity. Where a contract for the sale of real estate is fair, reasonable and certain in all of the terms, it is as much the duty of a'court of equity to decree specific performance as it is for a court of law to award damages for breach of contract.”

Boyd v. Merc.-Safe Dep. & Trust Co., 28 Md. App. 18, 22 (1975) and cases cited therein. See also Housing Eng. Co. v. Andrew Co., 184 Md. 290 (1945).

What the chancellor had before him was a contract that was clear, certain, fair, and reasonable; and, having rejected factually the defense of misrepresentation, without equitable defense. The potential hardship to appellee occasioned by the violation notices issued subsequent to the execution of the contract, and which were not extant at the time the parties made their agreement, is not a bar to specific performance. As the Court held in Glendale Corp. v. Crawford, 207 Md. 148, 154 (1954):

“The fairness or hardship of a contract is to be judged as of the time when it was made and no subsequent change which may make it less beneficial to one of the parties is material unless the change is in some way the fault of the party seeking its specific execution.”

See also Pomeroy, supra, § 186.

There is no evidence here that the “change” was the “fault” of Archway. It was, in fact, only a confirmation of what appellee said he suspected when he examined and purchased the property.

It is clear that the only reason the chancellor denied Archway the specific performance it requested was his suspicion that appellee would ignore the decree and his concern over what may be required to enforce it. This is not a proper reason to withhold a remedy that, in this type of case, has been held to be a “matter of course”, a “duty”. In the first place, it was not appropriate for the chancellor to have assumed that appellee would ignore the decree. Appellee is apparently a sophisticated person who holds a responsible position in the community. Whatever may have been his difficulties in receiving letters, deeds, and summonses, there was no evidence before the chancellor that he would ignore a court decree. That he might do so is hardly a reason to deny appellant the relief to which it was entitled. Maryland Rule 685 provides ample methods of enforcing the decree, which are no more distasteful in this case than in any other.

As a positive defense, appellee claims that the contract was no longer operative in that settlement was called for by April 4, 1975, and the contract provided that time was of the essence. Thus, he says, since Archway failed to convey the property to him by that date, the contract expired and he is no longer bound under it. The chancellor apparently found no merit in this argument, and neither do we.

Although settlement was called for by April 4, and time was stated to be of the essence, a fair reading of the contract in light of the general practice prevailing with respect to real estate transfers, indicates that the initial obligation was on appellee to prepare a deed and to tender the balance of the purchase price. Thus, any default in concluding the settlement at the appointed time was his, and not Archway’s. This alone would have permitted Archway to seek specific performance.

What the record indicates, however, is that, by virtue of the telephone conversation between the parties on April 3 or 4, they mutually agreed to extend the time for settlement until Archway could prepare and execute the deed. Archway consented to assume a responsibility that was properly appellee’s, which it discharged with reasonable dispatch. The entire delay, without question, was due to appellee, who may not now convert it to his advantage.

II.

Ancillary Monetary Compensation

As noted earlier, in its Bill of Complaint, Archway asked for a judgment for damages or, in the alternative, what has become a standard prayer for such other and further relief as the nature of the cause may require. Proceeding apparently under this umbrella request, appellant asserts that it is entitled, as ancillary relief to specific performance, to be compensated for its losses and expenses attributable to appellee’s delay in performance. We agree.

It has long been recognized in Maryland and generally throughout the country, that, in decreeing specific performance, a court of equity may also award ancillary monetary damages to compensate the plaintiff for his losses arising from the defendant’s breach. See Walzl v. King, 113 Md. 550 (1910); Pomeroy’s Specific Performance of Contracts, supra, '§' 474; Miller’s Equity Procedure, § 673. It is also clear that such relief may be granted under a general prayer. Miller v. Talbott, 239 Md. 382 (1965); Powell v. Young, 45 Md. 494 (1877). The question is the proper measurement of the monetary compensation.

In Bernardini v. Stefanowicz Corp., 29 Md. App. 508 (1975), we quoted with at least tacit approval the following language from Ellis v. Mihelis, 384 P. 2d 7 (Cal. 1963):

“The compensation awarded as incident to a decree for specific performance is not for breach of contract and is therefore not legal damages. The complainant affirms the contract as being still in force and asks that it be performed. If the court orders it to be performed, the decree should as nearly as possible require performance in accordance with its terms. One of the terms is the date fixed by it for completion, and since that date is past, the court in order to relate the performance back to it, gives the complainant credit for any losses occasioned by the delay and permits the defendant to offset such amounts as may be appropriate. The result is more like an accounting between the parties than like an assessment of damages.”

To the same effect, we noted, was an annotation found in 7 A.L.R.2d 1204.

This is the prevailing law; it is required by the very theory upon which specific performance is itself based. Accordingly, Archway is entitled to be compensated by a monetary award for whatever losses and expenses it has, in fact, incurred that are properly attributable to appellee’s delay in performance.

We are in no position, on the record before us, to determine what the amount of a monetary award should be. Indeed, as appellee has yet to perform the contract, the total compensable losses may not be fully ascertainable. It would seem clear, however, that Archway is entitled to the unpaid balance of the purchase price plus reimbursement for taxes on the property from and after March 4,1975, the date of the contract, that it has paid, and the actual and reasonable expenses that it has incurred in order to comply with the order of the District Court.

We therefore remand the case to the Circuit Court of Baltimore City for the purpose of (1) entering a proper decree of specific performance, and (2) determining the proper amount of ancillary monetary compensation due to Archway and entering an appropriate order therefor.

Reversed and remanded for further proceedings in conformance with this opinion.

Appellee to pay the costs.