text:
    SHERMAN DUNCAN, alias James Fitz and CORNELL SMITH v. STATE OF MARYLAND
    [No. 967 (On Remand),
    September Term, 1974.]

      Decided December 28, 1976.

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

      Dennis M. Henderson, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Arnold M. Zerwitz, Assistant Public Defender, on the brief, for appellants.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert S. Rothenhoefer, State’s Attorney for Frederick County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellants, Sherman Duncan (alias James Fitz) and Cornell Smith, were jointly arrested in Frederick County on June 18, 1973. They were jointly charged in a two-count indictment with (1) grand larceny and (2) receiving stolen goods. Although both ultimately elected court trials, a difficulty in arranging for legal representation by Duncan resulted in a trial severance. Smith was tried in the Circuit Court for Frederick County by Judge Robert E. Clapp, Jr., on January 22, 1974, and was found guilty of the first count, charging grand larceny. Duncan was tried in the Circuit Court for Frederick County by Judge Ralph G. Shure on January 24, 1974, two days later, and was found guilty of the second count, charging the receipt of stolen goods. Notwithstanding the separate trials, the evidence produced was so virtually identical and the issues here presented are so overlapping in significant part, that it serves the purpose of judicial husbandry to consolidate the consideration of these appeals within a single opinion. Any minor differences in the relevant testimony will be noted.

The key contention raised by each defendant is that the stolen goods were turned up by the police in the course of an allegedly unconstitutional search of the automobile with which both appellants were linked by several witnesses. Duncan, in the course of his trial, moved to suppress the fruits of that search. His motion was denied. Smith, by a written motion filed just before his trial commenced, moved to suppress the physical evidence. His motion recited:

“1. That your Petitioner was arrested on a public street in the City of Frederick, Maryland without an arrest warrant. That the police after arresting the Petitioner proceeded to search a car in which Petitioner was a passenger and without the Petitioner’s permission or with a search warrant.
2. That evidence was illegally seized by the police and should not be introduced at trial.”

Evidence bearing on the motion was adduced during the course of the trial. Smith’s motion was also denied.

Both appellants initially appealed their convictions to this Court. In Duncan and Smith v. State, 27 Md. App. 302, 340 A. 2d 722, we affirmed. Our affirmance was based upon our conclusions (1) that neither appellant had demonstrated standing to contest the warrantless search of the automobile and (2) that they could not avail themselves of the automatic standing of Cecil Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L.Ed.2d 697 (1960), because of our belief that the very notion of automatic standing had been eroded to the point of extinction by the Supreme Court’s later decision in Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968). In Duncan and Smith v. State, 276 Md. 715, 351 A. 2d 144, the Court of Appeals reversed our decision, holding that automatic standing was still the constitutional law of the land. The Court of Appeals remanded the case to us to determine the search and seizure issue upon its merits.

It is axiomatic, of course, that the resolution of the standing question, either in favor of the appellants or in favor of the State, has no bearing upon the ultimate decision upon the Fourth Amendment merits. Standing is simply the key to the courtroom, giving one access to the adjudicative process but not foretelling success or failure as a result of that process. Because it is now the law of the case that both appellants have standing, they are entitled to litigate the Fourth Amendment merits and we turn our attention, therefore, to the merits.

The victimized store in this case, Montgomery Ward’s, is located in the Fredericktown Mall on the north side of U.S. Route 40 just west of the city of Frederick. Until several bags of stolen merchandise still containing the price tags were recovered by the police from the trunk of a white Mercury at approximately 5 p.m. on June 18, 1973, the personnel at Montgomery Ward’s did not realize that a larceny had taken place. The security personnel at the nearby J. C. Penney store, also located in the Fredericktown Mall, were, however, very alert to an attempted larceny of their merchandise at approximately 4 p.m. Two Negro males had been observed putting clothing into big trash bags and then carrying them out of the store, where they were set in trash cans just outside of a Pappy’s Restaurant. A security officer took up a surveillance point to observe whoever might come by to retrieve the merchandise temporarily “stashed” in the trash cans. He observed two Negro males approach in a white Mercury, with a damaged front end, and bearing Maryland license tags KR 4679. When they, in turn, observed him, they drove off at a high rate of speed, “laying down rubber.” The police were immediately notified.

Mrs. Mary Joan Maher lived on Grove Hill Road, a residential cul-de-sac, located just south of U.S. 40 across from the entrance to the Fredericktown Mall. At approximately 4 p.m. on June 18, she observed a white Mercury drive off the road and park on her front lawn. Two Negro males, strangers to her, alighted from the car, turned away when they saw her looking out of the door, and walked back toward Route 40. She notified the police. The two appellants were ultimately arrested as they were walking along the road several hundred yards away. Mrs. Maher and another neighbor identified them as the occupants of the white Mercury. The Mercury was the car that had been observed a few minutes earlier by the security officer of J. C. Penney’s.

A warrantless search of the trunk of the automobile produced the goods stolen from Montgomery Ward’s. This was the corpus delicti. The two witnesses from Grove Hill Road (with a peripheral assist from the security man at J. C. Penney’s and the proximities of time and place) established the criminal agency of the appellants. The entire case hinges upon the question of whether the police, upon the merits of the Fourth Amendment, were or were not acting reasonably when they conducted the warrantless search of the trunk of the automobile.

We hold that the police action was not unreasonable and that the stolen goods produced from the automobile trunk were properly admitted in evidence. The police were summoned to Grove Hill Road by a resident of that street who complained about the white Mercury. The Mercury was parked not upon the street but as Mrs. Maher testified, “on her front lawn.”

We believe that the police action was ultimately reasonable for either of two different reasons. There is emanating from the recent Supreme Court decisions of Cady v. Dombrowski, 413 U. S. 433, 93 S. Ct. 2523, 37 L.Ed.2d 706 (1973), Cardwell v. Lewis, 417 U. S. 583, 94 S. Ct. 2464, 41 L.Ed.2d 325 (1974), and South Dakota v. Opperman, 428 U. S. 364, 96 S. Ct. 3092, 49 L.Ed.2d 1000 (1976), the new constitutional notion that the police have a “community caretaking function” with respect to automobiles which bears upon the question of Fourth Amendment reasonableness. The general philosophy of the Supreme Court in this regard was stated by Justice Rehnquist in Cady v. Dombrowski, at 413 U. S. 441:

“Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

The Cady v. Dombrowski opinion went on to point out that when “community caretaking” was involved, the warrantless police activity was not based exclusively upon the predicate of exigency arising out of mobility under the Carroll Doctrine. The Court drew the distinction, at 413 U. S. 441-442:

“Although the original justification advanced for treating automobiles differently from houses, insofar as warrantless searches of automobiles by federal officers was concerned, was the vagrant and mobile nature of the former .. . warrantless searches of vehicles by state officers have been sustained in cases in which the possibilities of the vehicle’s being removed or evidence in it destroyed were remote, if not nonexistent.”

Even more pertinent to the factual situation now before us are the words of Chief Justice Burger, writing for the majority of the Supreme Court, in South Dakota v. Opperman, at 49 L.Ed.2d 1005:

“In the interests of public safety and as part of what the Court has called ‘community caretaking functions,’ Cady v. Dombrowski, supra . .. automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.”

In the situation now before us, where a homeowner has called the police to make a complaint, the taking of the automobile into police custody because it is illegally parked upon a woman’s front lawn is as compellingly reasonable as the taking of an automobile into police custody after it has been damaged at an accident scene. The present case of getting the automobile off of the lawn is more compelling than the impounding of a vehicle which has violated the parking ordinances. In South Dakota v. Opperman, supra, the Supreme Court went on to list three legitimate purposes which serve to make reasonable police intrusions into the interior of an automobile following its seizure. With respect to the third of these, the Court said, at 49 L.Ed.2d 1005:

“In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.
These caretaking procedures have almost uniformly been upheld by the state courts, which by virtue of the localized nature of traffic regulation have had considerable occasion to deal with the issue.”

In the case at bar, the police had good cause to check further in an effort to ascertain if the vehicle had “been stolen and left abandoned.” As we ourselves pointed out in this regard when the case was first before us:

“Indeed, the somewhat bizarre leaving of the automobile on a front lawn in a strange residential neighborhood and then walking an appreciable distance away with no discernible destination is at least as compatible with abandoning a ‘hot’ car as with the sensible parking of a car rightfully possessed.” 27 Md. App. at 308.

Our conclusion that the police had no choice but to take charge of the vehicle in their “community caretaking function” is fortified by the responses they received when they initially accosted the appellants. At the trial of Duncan, Lt. Gary Heerd testified that the two appellants affirmatively disclaimed any interest in or knowledge of the car:

“I myself asked them if this was their vehicle or if they knew whose vehicle it was and they denied it. They said it was not their car. They did not know whose it was or how it got there.”

Similar testimony was produced at the trial of Smith. Pvt. Maybush testified:

“.. . Lt. Heerd came up and asked the subjects, was it their vehicle and if they had any knowledge how the vehicle got there and both of them stated that it was positively not their vehicle. They had never seen it before.
Q. What did they state?
A. They said positively it was not their vehicle and they had never seen it before. Didn’t know how it got there.
Q. They had no knowledge of that vehicle?
A. No, sir.”

Lt. Heerd again testified:

“When they were brought to the scene of the car I myself asked them whether, in fact, that was their car or if they knew whose car it was. They denied it. They did not know whose car it was or who had the car.”

Det. Corp. Himes also testified:

“[ A]t the time they denied any knowledge of the car that was parked in the yard. They repeatedly stated that they had no connection with it, had not driven it there, had not parked it there and answers of that nature.”

Neither appellant took the stand. Neither appellant at any time offered any evidence to contradict that given by the State.

Those responses made by the two appellants to the police persuade us, furthermore, that the police action was reasonable upon yet a second and independent ground — that of abandonment. The case law dealing with the subject of abandonment makes it clear that abandonment within the contemplation of the Fourth Amendment is not the same and is not so strict as abandonment within the contemplation of property law. As was held in United States v. Edwards, 441F. 2d 749 (5th Cir. 1971), at 753:

“Whether or not the facts reveal a complete abandonment in the strict property-right sense is not the issue. Mr. Justice Frankfurter in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), admonishes that it is unnecessary and ill-advised to import into this law of constitutional search and seizure the subtle distinctions of private property law. Mr. Justice Goldberg in United States v. Ventresca, 880 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), stresses that the Fourth Amendment is not to be applied in a hypertechnical manner but with a common sense approach.
It seems clear by any good sound ordinary sense standard that Edwards abandoned any reasonable expectation to a continuation of his personal right against having his car searched under these circumstances, and thus lost his Fourth Amendment rights, and we so hold.”

And see Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buffalo L. Rev. 399 (1971), at 402:

“It [abandonment] is ordinarily a question of fact, is never presumed, and does not require the performance of any ritual. Ultimately, it is a question of intent. Since, however, the conclusive effect of abandonment under the fourth amendment is the termination of an individual’s right, or expectation, of privacy in a particular piece of property, its existence is finally a question of federal constitutional law, and not one governed by local property concepts.”

In the United States v. Edwards case, the defendant, in his automobile, attempted to flee when a traffic officer tried to stop him for speeding. After a high-speed chase, the defendant missed a turn, ran partially off of the roadway and brought his car to a stop. He jumped out of the car and fled on foot. The officer searched the automobile and recovered contraband. In sustaining the warrantless automobile search, the United States Court of Appeals for the Fifth Circuit held, at 751, 753:

“Defendant’s right to Fourth Amendment protection came to an end when he abandoned his car to the police, on a public highway, with engine running, keys in the ignition, lights on, and fled on foot. At that point defendant could have no reasonable expectation of privacy with respect to his automobile.
The circumstances here were not sufficiently compelling to make involuntary the choice to abandon his car to the pursuing officer. Having done so, Edwards accepted the risk that the officer would search the car, thus losing his right to constitutional protection.”

In Jefferson v. State, 136 Ga. App. 63, 220 S.E.2d 71 (1975), a suspect was stopped by the police for non-possession of a driver’s license. He told the officer that the license was at his brother’s house and the officer followed him to that address in order to see the license. When they arrived at their destination, the defendant jumped out of his vehicle, ran around a corner, leaped a fence and got away. The officer searched the automobile that had been left behind. In sustaining the reasonableness of that warrantless automobile search, the Georgia Court of Appeals said, at 220 S.E.2d 73:

“The facts show that appellant made a free choice to leave his car on the street. ‘By this voluntary election, he lost his constitutional protection against the search and seizure of his car/ ”

See also Whitlock v. State, 124 Ga. App. 599, 185 S.E.2d 90 (1971), and State v. Achter, 512 S.W.2d 894 (Mo. App. 1974).

Under factual circumstances even more apposite to the case at bar, United, States v. Colbert, 474 F. 2d 174 (5th Cir. 1973), found abandonment where the defendants disclaimed any interest in the briefcases to be searched. Two defendants were convicted of the unlawful possession of sawed-off shotguns. They were both stopped for questioning as they walked the streets of Birmingham, Alabama, carrying briefcases. They set the briefcases down on the sidewalk. In response to questioning, they identified themselves as book salesmen. When the officers asked to see their wares, the defendants denied that they owned the two briefcases and said they had no knowledge about them. They began to walk away, leaving the briefcases on the sidewalk. The briefcases were warrantlessly searched by the police and revealed the sawed-off shotguns inside. In holding that the police conduct was reasonable, the United States Court of Appeals said, at 176-177:

“The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.. ..
The facts of this case show conclusively that Colbert and Reese abandoned their briefcases before the searches took place. In response to police questions they both disclaimed any interest in the briefcases and began to walk away from them. The police officers in no way compelled these actions. Under these circumstances appellants could entertain no reasonable expectation of privacy in them. Compare Lurie v. Oberhauser, supra, where a disclaimer of any ownership or possessory interest in a suitcase in the course of a police investigation was held sufficient without more to support a finding of abandonment.”

See also Lurie v. Oberhauser, 431 F. 2d 330 (9th Cir. 1970), and State v. Brown, 45 Ohio App. 2d 76, 341 N.E.2d 325 (1975) .

As the Supreme Court made unmistakably clear in Stone v. Powell, 428 U. S. 465, 96 S. Ct. 3037, 49 L.Ed.2d 1067 (1976) , the sole purpose of the exclusionary rule, reluctantly imposed at the cost of probative evidence, is to deter unreasonable police behavior. The ultimate touchstone is reasonableness. Upon either the rationale of their “community caretaking function” or the rationale of abandonment, we hold that the police conduct in the circumstances of this case was reasonable. The physical fruits of grand larceny found in the trunk of the abandoned and/or intrusively, as well as illegally, parked automobile were, therefore, properly admitted in evidence.

Judgments affirmed; costs to be paid by appellants.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    CREATIVE DEVELOPMENT CORPORATION v. CALHOUN BOND, Trustee CREATIVE DEVELOPMENT CORPORATION v. CALHOUN BOND, Trustee
    [No. 31,
    September Term, 1976.]
    [No. 486,
    September Term, 1976.]

      Decided December 29, 1976.

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

      Paul Mark Sandler, with whom were Cohan, Altman & Sandler on the brief, for appellant.

      Louis B. Thalheimer, with whom were William J. Rubin, H. Russell Frisby, Jr., and Cable, McDaniel, Borne & Bond on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

On May 15, 1973, Creative Development Corporation (Creative) granted to Calhoun Bond, Esquire, Trustee, a deed of trust securing the sum of $6,500,000 to be used in the purchase and renovation of Suburban Oaks, a building situated in the Pikesville area of Baltimore County. Creative proposed to convert the building from rental apartments to condominium units. Bond was the trustee designated by the lender, Chase Manhattan Mortgage and Realty Trust (Chase). Subsequently, on July 31, 1974, Creative granted a second deed of trust to Bond securing an additional $735,000. That sum was also advanced by Chase.

Approximately one year later, July 23, 1975, Bond, as trustee, commenced foreclosure proceedings under both deeds of trust as to sixty-eight condominium dwelling units that had not been released from the lien of the two deeds of trust, “... as well as the aggregate undivided interest in the common elements of Suburban Oaks Apartment Condominium appertaining to such units. . ..”

Bond asserted in his petition to foreclose that Creative had failed to pay the real estate taxes when due, failed to take appropriate steps to prevent collection by the county of real estate taxes during the contest of the amount of tax due, and failed to pay promptly condominium assessments or charges. Bond later amended his petition by incorporating another ground of default, i.e., the failure of Creative “. . . to maintain and keep the mortgaged premises in good repair. ...”

The two deeds of trust contained identical “assent to decree” clauses, which provided in pertinent part that Creative did

“(1) declare its assent to the passing of a decree for the sale of the Mortgaged Property at any time after the recording of this Indenture (said sale to take place after a default has occurred in any of the conditions of this Indenture as herein provided); and (2) also authorize the Trustee, . . . after any such default shall have occurred as aforesaid, to sell the Mortgaged Premises. . . .”

The circuit court, acting pursuant to Md. Real Prop. Code Ann. § 7-105 (a) and Md. Rules W77 a, W72 c 2, d, e, and f, passed a decree commanding “. . . that the property subject to the Deed of Trust and the Second Deed of Trust . . . be sold. . . .”

Creative responded to the foreclosure proceeding by filing, in the same case, a “Petition to Enjoin Decree.” Creative averred that it was not in default under the deeds of trust and,

“[t]hat the mortgage foreclosure procedures which include foreclosure under deeds of trust of the State of Maryland violate the due process clause of the United States Constitution in that no notice is given to the mortgagor or grantor . . . prior to the entry of a decree, and no opportunity is given to the mortgagor or grantor to contest the validity of the underlying claim of the mortgagee or trustee prior to the passing of a Decree.”

After voluminous pleadings, motions, interrogatories, and depositions, the matter was heard before Judge John E. Raine, Jr., who, in an oral opinion, held that neither the Maryland law nor procedure was unconstitutional, and he dismissed the petition for an injunction. The chancellor determined that there had been a default by Creative under the terms of the deeds of trust and that Bond could proceed with the sale. Creative appealed to this Court (Appeal No. 31) and filed in the circuit court a “Motion to Stay” pending the appellate decision. The motion was denied.

In due time, Suburban Oaks was sold at public auction to Chase for $2,400,000. Creative filed exceptions to the sale and again questioned the constitutionality of the Maryland “foreclosure procedures” for the same reasons previously advanced. Additionally, Creative contended that Bond “. .. acted in an arbitrary and capricious manner and abused . .. [his] discretion ... by failing to advertise and offer for sale the Property both as a whole and alternatively on a unit by unit basis.” Creative also asserted that the sale price was “totally inadequate.” Creative’s exceptions met the same fate before the chancellor as did Creative’s attempt to enjoin the foreclosure. Another appeal was noted to this Court (Appeal No. 486), where, on motion, we consolidated the two cases for oral argument.

Subsequent to the ratification of the sale. Creative, unable to post a supersedeas bond to stay the effect of the ratification and sale of the condominium units to third persons, conceived of another method, designed to accomplish the same purpose as a supersedeas bond but without the costs of such a bond. Creative simply filed another suit, this time seeking to enjoin Chase’s sale of the condominium units pending the outcome of the two previous appeals. Judge Raine sustained, without leave to amend, a demurrer to the action. Creative, undaunted by the ruling on the demurrer, petitioned for a reconsideration which was denied on the same date. The ruling on the demurrer and the refusal to reconsider were also appealed, but those two matters are not now before us.

Md. Rule 1017 a provides that, with the exception of six specified types of actions, not here applicable, civil judgments are not stayed unless a supersedeas bond is filed. Creative, as we have noted, pursued both Appeal No. 31 and Appeal No. 486 without posting a bond. On oral argument, we were told by Creative’s counsel that the reason a bond was not posted was because the cost was prohibitive.

We were further informed that all the condominium units had been sold to individual purchasers and that Chase no longer held title to any of the property. When asked why these two appeals are not now moot, Creative’s counsel responded that the latest injunction suit (Appeal No. 783) placed would-be purchasers on notice, and hence the doctrine of lis pendens applied so that there is no mootness. We, however, have a different view.

While Creative’s attempt to circumvent the posting of a supersedeas bond by means of an end run around the rules is novel, it is also nugatory. Patently, Creative seeks to invoke lis pendens as a form of supersedeas without incurring the expense of a bond. It is much cheaper to file a law suit than to post a supersedeas bond in “... such sum as will secure the amount recovered for the use and detention of the property, interest, costs and damages for delay ...”, Md. Rule 1018 b 2, but the suit will not take the place of the bond. If courts were to sanction the practice upon which Creative would have us place a judicial approbation, we would cast a tremendous financial burden upon lenders who would be placed in the position of having won their case and lost it at the same time. Without any type of protection, the lenders would be compelled to hold the property that was the subject of the foreclosure pending the outcome of an appeal, would be hesitant to make improvements to the property, and might sustain a huge loss of interest income.

The Court of Appeals, in a series of cases, has made unmistakable the necessity of a supersedeas bond or other type of court-ordered stay. Ed Jacobsen, Jr., Inc. v. Barrick, 252 Md. 507, 250 A. 2d 646 (1969); Cook v. Boehl, 188 Md. 581, 53 A. 2d 555 (1947); Durkee v. Murphy, 181 Md. 259, 29 A. 2d 253 (1942); Middendorf v. Baltimore Refrigerating and Heating Co., 117 Md. 17, 82 A. 1047 (1911); Barnum v. Barnum, 42 Md. 251 (1875); Eakle v. Smith, 24 Md. 339 (1865). We have followed in the same path. Washington Homes, Inc. v. Baggett, 23 Md. App. 167, 326 A. 2d 206 (1974); Onderdonk v. Onderdonk, 21 Md. App. 621, 320 A. 2d 585 (1974). See generally, 4 Poe’s Pleading and Practice § 651 (6th ed. H. Sachs 1975).

We think the case law clearly to be that the rule with respect to the posting of supersedeas bonds embraces all civil cases, except those noted in footnote 3, supra. The posting of a bond from an approved surety, Md. Rule 1020, or a deposit of money in lieu of a bond, Md. Rule 1021, are the only methods of staying a judgment unless a subsequent injunction or stay is issued, and even then a bond in an adequate amount may be required.

The rationale of the doctrine of lis pendens is that “... the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. 2 J. Pomeroy, A Treatise on Equity Jurisprudence § 632 (5th ed. S. Symons 1941). The outgrowth of the rationale leads to the general rule that during the pendency of an equity suit, neither party to the litigation may alienate property in dispute so as to affect the rights of another party to the suit. Id. § 633.

The whole doctrine of lis pendens, it seems to us, is contingent upon proper and specific allegations brought in an orthodox proceeding. Were it not for the requirement in Maryland practice either of the posting of a supersedeas bond or court-ordered stay of a judgment, there seems to be little question but that lis pendens would apply to judgments from which an appeal was pending. It was never contemplated, at least in this State, that lis pendens could be invoked as a result of a collateral attack upon an ostensibly proper judgment, entered after a full hearing, in order to defeat the effect of the judgment and simultaneously avoid the cost of a supersedeas bond.

The old maxim, “he who seeks equity must do equity,” is applicable here. Equity will not countenance Creative’s collateral attack and resultant collateral appeal to act as lis pendens and, at the same time, place upon Bond and Chase the onus of footing the vast expense and loss to which they would be subjected while the appeal is pending, without some assurance that, if Bond and Chase prevail, they will be made whole. Creative seeks to have it both ways: a viable appeal which ties up the property of Chase, while, at the same time, not going to the expense of posting a bond. It, thus, wants to gamble, as it were, with someone else’s money. We recognize that which Creative labels Us pendens as an impostor, masquerading as an accepted equitable principle when, in law, equity, and fact, it is not. Lis pendens does not apply to this case.

Because these appeals are now moot, the other interesting issues raised by Creative, i.e., the constitutionality of Maryland’s foreclosure procedures and the propriety of a foreclosure sale by the entirety as opposed to a unit-by-unit sale, need not be addressed at this time.

Appeals dismissed.

Costs to be paid by appellant.

      . Md. Rule W72 f, amended December 17, 1975, effective January 1, 1976.

      . The appeal in that case is styled as No. 783. Counsel for Creative concedes that, if Creative does not prevail in the instant case, Appeal No. 783 is mooted.

      . The exceptions are: (1) appeals from board of liquor license commissioners, (2) orphans’ courts, (3) orders affecting building, savings and loan and homestead associations, (4) appeals from the insurance commissioner, (5) tax assessments or classifications, and (6) sheriff’s failure to turn over fees. Md. Rule 1017 b.

      . We were advised that in the instant case the interest on the deeds of trust amounted to $10,000 per week. From the time of the appeal in case No. 486 until the date of oral argument, 30 weeks have passed. Such a time lapse, under Creative’s theory of the law, would have resulted in a dollar loss to Chase of $300,000.

      . See Md. Rule BB75.

      . The full title of Pomeroy’s work is: A Treatise on Equity Jurisprudence as Administered in the United States of America Adapted for all the States and to the Union of Legal and Equitable Remedies under the Reformed Procedure. It is no wonder' that the text is more commonly known as Pomeroy on Equity.


author: Liss, J.,

text:
    KENNETH MONROE RINGGOLD v. STATE OF MARYLAND
    [No. 153,
    September Term, 1976.]

      Decided December 29, 1976.

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

      Victoria Salner, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Edwin H. W. Harlan, Jr., State’s Attorney for Harford County, and Peter C. Cobb, Assistant State’s Attorney for Harford County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

In this case, the State attempted to cure a severe case of “convenient amnesia” by administering the nostrum of “past recollection recorded.” The remedy, like Dr. Raven’s Miracle Snake Oil Elixir, did not cure the disease.

The appellant, Kenneth Monroe Ringgold, was convicted by a jury in the Circuit Court for Harford County (Dyer, J., presiding) of robbery with a deadly weapon and the use of a handgun in the commission of a crime of violence. Sentences were imposed, and it is from these judgments that this appeal was timely noted.

On May 14, 1974, Norman Joyner and Luther Scroggins robbed a pharmacist at gunpoint and were caught in flagrante delicto as they attempted to flee from the pharmacy premises. Guilty pleas were entered on their behalf and sentences were imposed. The appellant, who was tried separately, was allegedly the driver of the getaway car used in the commission of the crime.

At the appellant’s trial, Police Officer Montville testified that he and his partner had responded to an alarm and arrested Joyner and Scroggins as they ran out of the store. After making the arrests the officer was approached and given some information by Eleanor Brammer, a nurse at the Harford Memorial Hospital which was located immediately across from the drugstore. Mrs. Brammer testified that she told the officer that she had observed a black Volkswagen with three black males in it drive down an alley to the rear of the drugstore; that she saw two of the men get out and go into the drugstore. She walked toward the store and by the time she got there the police were holding in custody the two black males whom she had seen leave the car. She told the officers “there was a fellow still in the black Volkswagen at the exit door of the Apothecary Shoppe.” Armed with this information one of the officers went to the rear of the premises and observed a black Volkswagen which was unattended. The officer then saw the appellant get into the car and attempt to start it. The officer stopped the appellant, advised him that he was investigating an armed robbery, and requested the appellant to accompany him to the police station, which he did. Later the appellant was charged as a participant in the crime.

Arlene Joyner, the appellant’s mother-in-law, had been summoned as a witness for the State. At the end of the first day of trial, when the Court advised all witnesses in the courtroom that they would be required to report the next morning, Arlene Joyner asked the Court, “Why do I have to testify against my son-in-law, because you know I ain’t going to tell the truth?” As a result of this statement, the trial court held a hearing the next morning out of the presence of the jury. At that hearing an Officer Way testified that he had obtained from Mrs. Joyner on May 21, 1974 a statement to the effect that her son, Norman, and the appellant had left her house on the morning of the robbery in a black Volkswagen. The signature “Arlene Joyner” appeared at the bottom of the statement.

Arlene Joyner then testified for the purposes of the hearing only. She explained that her statement the previous day meant — “if I had to say anything to hurt [appellant], I wouldn’t do it.” She stated that she would tell the truth but that she did not remember what she had talked about with the officer, nor did she remember what had occurred on the crucial date of May 14. She did not know whether the statement was true, nor could she remember giving or signing it. Given this information, the Court, exercising its discretion, called Mrs. Joyner as its own witness.

The jury was recalled and the Court explained to them that Mrs. Joyner was being called as the Court’s witness because the State which had summoned her could not vouch for her veracity. The Court also explained that this action by the Court would permit both the State and defense to cross-examine the witness. Mrs. Joyner was then called to the stand, sworn and some preliminary questions were asked of her by the Court. The questioning was then turned over to the State’s Attorney who was unsuccessful in eliciting from her what had occurred on the morning of May 14. She insisted that she could not remember what had happened that day. The State then showed her the statement, and although she admitted the signature on it “looks like mine,” she denied any memory of its contents or the facts recited in it. She was then requested to read the statement to herself, which she did, but claimed that this did not refresh her recollection and insisted that she could not vouch for the truth of the statement. The State in an effort to refresh her memory then attempted to cross-examine the witness by reading the specific questions and answers contained in the statement, but defense counsel objected, and the Court sustained the objection on the ground that it would be too prejudicial to the defendant to permit a question by question denial of recollection by the witness. Throughout the State’s cross-examination Mrs. Joyner contended that she did not remember signing the statement because she was upset; she would only admit that the signature on the statement looked like hers.

Officer Way was then called to the stand as a witness for the State. He testified that he had taken a statement from Mrs. Joyner in which he had asked her certain questions which she answered, and that he had typed the statement which she then signed. After argument out of the presence of the jury, the Court ruled that the statement taken by Officer Way could be read to the jury and accepted as substantive evidence in the case. It is this ruling which presents the sole issue to be decided on appeal.

The appellant vigorously urged that the admission of the statement as substantive evidence was reversible error. We agree and shall reverse.

The complexities of the laws of evidence surrounding the question of the admissibility or the use to be made, if any, of Mrs. Joyner’s statement lead us into two different areas of discussion. The State first attempted to use the statement to refresh Mrs. Joyner’s present recollection. In a discussion of this facet of the law of evidence in Wilson v. State, 20 Md. App. 318, 329-330, 315 A. 2d 788, 794 (1974), Judge Moore said:

“Putting the best face on the State’s use of Craig1 s affidavit, as well as, we think, of Tuck’s, it appears that we are confronted with a situation considerably more closely akin to that of a party using a prior statement to refresh a witness’ present recollection. In Underhill, Criminal Evidence § 499 (5th ed. 1956), it is said:
‘It sometimes happens that state witnesses, who have given written statements, become unwilling, forgetful, or evasive when called upon to testify. In such case the prosecuting attorney, sometimes claiming surprise, may call the witness’ attention to the prior statement, not so much for the purposes of impeachment but to refresh the witness’ recollection.’
Similarly, Wharton, Criminal Evidence § 849 (12th ed. 1955), states:
‘The court may, in its discretion, permit a party to put questions to his witness on direct examination to refresh his recollection, by directing his attention to a particular matter or asking questions relating to prior statements or prior testimony, or by reading to him his prior testimony or portions therefrom, especially when it appears that the witness is unfriendly toward the party calling him, or is trying to evade the questions put to him.’
Although here the State was engaged not in direct examination but in cross-examination of Tuck and Craig, cross-examination to refresh a witness’ recollection on the basis of prior statements may be permitted. Its propriety lies largely within the sound discretion of the trial judge. 3 Wigmore, supra, § 764; see United States v. Baratta, 397 F. 2d 215 (1968); Young v. United States, 214 F. 2d 232 (1954).
Yet from the quite legitimate (and here successful) use of the prior statements of Tuck and Craig by the State to refresh their memory or ‘awaken their conscience,’ People v. Malston, 258 N.E.2d 362, 365 (III. 1970), the State can take no comfort, for the affidavits should not have been received in evidence over appellant’s objection. As stated in Wharton, Criminal Evidence § 416 (13th ed. 1973): ‘Since it is the witness’ present recollection, not the memorandum, which is the evidence, the memorandum itself is not admissible, nor may the contents thereof be read to the jury. But such a memorandum is admissible in evidence when introduced by opposing counsel.’ And as Wigmore has it: ‘That the offering party has not the right to treat it as evidence, by reading it or showing it or handling [sic] it to the jury, is well established.’ 3 Wigmore, supra, § 763. See also Underhill, supra, § 499; 82 A.L.R.2d 473; Hubbard v. State, 2 Md. App. 364, 234 A. 2d 775 (1967); Bulluck v. State, 219 Md. 67, 148 A. 2d 433 (1959).” (Footnote omitted)

The State, frustrated in its effort to get the details of the statement before the jury by impeaching the Court’s witness, offered the statement as evidence of a past recollection recorded. The Court admitted the statement on that basis and permitted it to be read to the jury as substantive evidence.

An early discussion of the rules of evidence governing past recollection recorded is found in Martin v. Good, 14 Md. 398, 410 (1859), quoting from 1 Greenleaf, Evidence, sec. 437:

“ ‘Where the writing neither is recognized by the witness as one which he remembers to have seen before, nor awakens his memory to the recollection of any thing contained in it, but nevertheless, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact,’ the testimony will be received. The examples put show the reasonableness of the doctrine, and that the ends of justice require it to be so. A more recent author, whose conclusions, we think, are generally sustained by the authorities, states the English doctrine substantially in the same way. Powel on Evidence, 308, in 96 Law. Lib., 119. Here the witness stated, that from the paper being in his own handwriting, he had no doubt it did contain the true terms of the agreement made in his presence, and upon cross-examination he gave, in effect, the same testimony.”

It is extremely important to note that after verification the record of past recollection recorded used by a witness becomes his present evidentiary statement. It may then be admitted into evidence either as part of his direct testimony or cross-examination.

This Court in Askins v. State, 13 Md. App. 702, 709-710, 284 A. 2d 626, 630 (1971), discussed the distinction to be made between the use of a memorandum to revive present recollection and the admission into evidence of a memorandum of a past recollection recorded:

“Past recollection recorded is where ‘a witness, who is either devoid of a present recollection or possessed of an imperfect present recollection, desires to use a past recollection. This he proposes to do by employing some record of his past recollection.’ Wigmore on Evidence (3rd Ed.), Section 734. The authorities are in general agreement, as to past recollection recorded, that to introduce the memorandum into evidence there must be a showing that the witness identifies the memorandum as made immediately after or contemporaneously with the event and that the memorandum is a correct statement of those facts which the witness recorded. Wigmore, supra, Section 734-747; Hall v. State, 223 Md. 158, 176; 125 A.L.R. 3; 82 A.L.R.2d 465. Stated succinctly, in order to introduce past recollection recorded, the general rule is that it is necessary to adduce from the witness ‘(a) that he at one time had personal knowledge of the facts, (b) that the writing was, when made, an accurate record of the event, and (c) that after seeing the writing, he has not sufficient present independent recollection of the facts to testify accurately in regard thereto.’ Kinsey v. Arizona, 49 Ariz. 201, 65 P. 2d 1141 at 1148, cited with approval in Hall v. State, supra, at 173.”

In the later case of Edwards and Person v. State, 31 Md. App. 562, 358 A. 2d 590 (1976), this Court restated the requirements of the foundation to be laid to make it clear that it was not necessary that a lack of present recollection be established before a writing might be used as a past recollection recorded. Hall v. State, supra; Glazier v. State, 30 Md. App. 647, 353 A. 2d 674 (1976).

The crux of this case, however, is that the past recollection recorded if it is to be admitted into evidence must be offered by the witness who is either devoid of a present recollection or possessed of an imperfect present recollection and desires to use a memorandum of a past recollection. The witness must be able to assert now that the record correctly represented his knowledge and recollection at the time of making. 3 J. Wigmore, Evidence §§ 734, 746(2) (Chadbourne rev. 1970).

In each of the cases we have cited it is the vAtness who verified the genuineness and accuracy of the facts recited in the memorandum. When the recollection of a witness is not refreshed by reference to the memorandum, but he recalls the memorandum and recalls that it was accurate when made or he recognizes the signature on the statement as his and testifies positively that he would not have signed the statement had he not believed it to be true at the time, he may testify from the memorandum or it may be received into evidence in connection with his direct examination or in cross-examination. 82 A.L.R.2d 473 (1962). In this case, however, the witness professed to have no recollection of the statements allegedly made by her to the officer. While it seems clear that this was a deliberate prevarication by the witness, there still was no adequate foundation upon which the statement could be admitted into evidence as past recollection recorded.

In the old carny tradition, we can only say to the assistant State’s Attorney, “Good try son, but no cigar.” The admission of the statement as substantive evidence was reversible error.

Judgments reversed.

Case remanded for new trial.

Costs to be paid by Harford County.


author: Morton, J.,

text:
    LEON LEVI WILSON and JAMES WILLIS GREEN v. STATE OF MARYLAND
    [No. 163,
    September Term, 1976.]

      Decided December 29, 1976.

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

      Bradford C. Peabody, Assigned Public Defender, with whom were Alan H. Murrell, Public Defender, and Arthur A. DeLano, Jr., Assistant Public Defender, on the brief, for appellants.

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

delivered the opinion of the Court.

Appellants, Leon Levi Wilson and James Willis Green, were each convicted by a jury in the Criminal Court of Baltimore (Sklar, J., presiding) of robbery with a dangerous and deadly weapon and use of a handgun in the commission of a crime of violence. Additionally, Wilson was found guilty of assault. Wilson was sentenced to twenty years imprisonment for the robbery, concurrent to a ten year term for the handgun violation and consecutive to a four year term for the assault. Green received concurrent eight year terms for the robbery and the handgun charge.

Because we agree with the appellants’ contention that they were denied their constitutional right to a speedy trial, no elaboration of the facts leading up to their convictions is necessary. Suffice it to say that they accosted the male victim with a gun and robbed him of $22.

Both appellants were arrested on November 30, 1974. Their case was first called for trial on June 23,1975, but was postponed because not enough jurors were available. The trial, rescheduled to begin on October 17, 1975, was again postponed by the State because no court was available when appellants prayed a jury trial.

Wilson filed a motion to dismiss his indictment for lack of a speedy trial on October 22, 1975. The motion was heard and denied on January 13, 1976, by Judge Hargrove. On the other hand, Green first requested a speedy trial on October 28, 1975. He filed a motion on January 7,1976, to dimiss the indictment for lack of same. The motion was heard and denied by Judge Sklar on January 19,1976.

After the October 17, 1975, postponement, the trial was rescheduled to begin on January 13, 1976, at which time it was postponed once again, this time because Green’s counsel was unavailable. One week later, on January 19, 1976, the trial began. Both appellants were incarcerated continuously from the date of their arrest to the date of the trial.

In treating their contention that they were denied a speedy trial, we note, at the outset, that the length of delay between the date of arrest and date of trial, 13 months and 3 weeks, is of sufficient “constitutional dimension” to “trigger” the four-fold analytical process enunciated in Barker v. Wingo, 407 U. S. 514, 530 (1972), Jones v. State, 279 Md. 1 (1976) and Epps v. State, 276 Md. 96, 109 (1975). The four factors in the balancing test are (a) length of delay, (b) the reason for the delay, (c) the defendant’s assertion of his right and (d) prejudice to the defendant.

Dealing with the factors in their order of ascending pre-eminence in this case, we first consider the Defendant’s Assertion of Right prong. Appellant Wilson moved to dismiss the indictment for lack of speedy trial on October 22, 1975, while appellant Green filed a motion for speedy trial on October 28,1975, as well as a motion to dismiss for lack of same on January 7,1976.

Both appellants were arrested on November 30,1974. Both appellants endured postponements of trial on June 23, 1975, and October 17, 1975. Neither appellant demanded a speedy trial until after that point. Thus, it was not until after two postponements and nearly 11 months from the date of arrest that appellants sought affirmatively to assert their right to a speedy trial. Thereafter, the State moved with reasonable expedition, approximately three months, to bring appellants to trial.

While Barker explicitly rejected the “demand-waiver” rule, it added the following caveat:

“This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation * * * would * * * allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely proforma objection.” Barker, supra, at 528-29.

It is our view that whatever weight is to be accredited to appellants by reason of their demand for a speedy trial, it is counter-balanced by the fact that they waited until after two trial postponements and eleven months to do so; a lack of frequency in their demands; and the State’s diligent effort to try them thereafter. We balance this factor to be neutral with minimal significance to be given either side.

It is clear, in light of Barker, that here the State must shoulder the blame under the Reason for Delay prong. See, e.g., Evans v. State, 30 Md. App. 423, 428 (1976). Appellants were twice ready to proceed with the trial only to have it postponed because “not enough jurors were available” and “no court was available.” “[T]he ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, supra, at 531. Barker, however, noted that “different weight should be assigned to different reasons. * * * A more neutral reason such as negligence or overcrowded courts should be weighed less heavily” than a deliberate attempt to delay the trial for tactical purposes. Id. We balance this prong in appellants’ behalf but attach to it minor weight in light of the circumstances.

In considering the Length of Delay prong, we treat it with the Prejudice to the Defendant prong since, in this case at least, the two are inextricably meshed.

“A certain quantitative and qualitative degree of delay gives rise to a rebuttable presumption of prejudice and will shift the burden of going forward with the evidence from the accused to the State. Before that critical point is reached, there rests upon the accused, as the moving party, the burden of persuading the hearing judge that he has suffered actual prejudice or the strong possibility of prejudice. Once that critical point has been reached, however, the presumption of prejudice arises and the burden of going forward with the evidence shifts to the State. That critical point on the delay scale where the presumption arises and the burden shifts has been denominated the point of ‘substantial’ delay. Lawless [State v. Lawless, 13 Md. App. 220 (1971)], at 233; Stevenson v. State, 4 Md. App. 1, 13-15, 241 A. 2d 174.” State v. Jones, 18 Md. App. 11, 27 (1973).

Thus, unless the delay is “substantial,” the burden of going forward with evidence to demonstrate prejudice rests upon the accused. We presently view this determination to be extremely crucial in light of the fact that no direct evidence of prejudice was demonstrated at the hearing below on the speedy trial issue. Appellants, however, point to those types of prejudice that are inherent in any delay prior to trial, to wit: “personal factors” in the Barker sense and an impairment of witnesses’ ability to recall details. Prejudice of this nature, however, will be “presumed” only when the delay is “substantial.”

But in the circumstances here, the delay of 13 months and three weeks cannot be deemed insubstantial and must be considered of sufficient length to invoke the presumption of prejudice and shift the burden to the State to produce evidence which will demonstrate that the appellants suffered no prejudice by reason of the delay. In the record before us the State failed to provide even a scintilla of such evidence. In fact, the State made no effort whatsoever to carry its burden which in this instance it may or may not have been able to shoulder successfully. While we are sympathetic to the problems imposed by an overcrowded docket, especially in Baltimore City and other urban centers, the right to a speedy trial is one of the hallmarks upon which our criminal justice system rests. We simply cannot countenance a delay in excess of 13 months as a necessary evil resulting from our society’s ills. When the delay reaches this dimension, the justice which is due an accused is jeopardized. By shifting to the State the burden of demonstrating lack of prejudice to the appellants, we endeavor to keep the interests of justice in balance. Since the State failed dismally to meet its burden, we weigh the Length of Delay and Prejudice prongs heavily in appellants’ favor.

Thus, balancing the four factors we observe that they are either neutral or are weighted in appellants’ behalf. We conclude, therefore, that appellants were denied their right to a speedy trial guaranteed them under both the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. “Since dismissal of the indictment is the only possible remedy when a speedy trial has been denied, Barker v. Wingo, supra; Strunk v. United States [412 U. S. 434 (1973)] * * * we are reluctantly constrained, upon constitutional grounds, to conclude that the indictment upon which * * * [Wilson and Green were] * * * convicted must be dismissed.” Epps, supra, at 121.

We do not reach the remaining contentions raised by appellants.

Judgments reversed; costs to be paid by the Mayor and City Council of Baltimore.

      . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * U.S. Const. Amendment VI.
      “That in all criminal prosecutions, every man hath a right * * * to a speedy trial by an impartial jury * * Art. 21, Maryland Declaration of Rights.

      . In this calculation we have used January 19, 1976, as the cut-off date when measuring the delay. Actually, with regard to Green, the proper cut-off point is January 13, 1976, since the subsequent six day delay was caused by the absence of his counsel and thus, not attributable to the State. Wilson, on the other hand, was ready to proceed with the trial on January 13, 1976, but was made to wait six days so that he could be tried together with Green. As such, there are viable reasons why the January 19, 1976, date is the appropriate measuring rod with regard to him. We see no need to render a ruling on this matter since we conclude that the additional six days are of little, if any, consequence in reaching the ultimate speedy trial determination. For present purposes, therefore, the cut-off date when measuring the delay for both appellants will be January 19,1976.

      . There is, of course, a distinction between the threshold inquiry into whether the delay was of “constitutional dimension” in the Barker sense and the later inquiry as to “substantial” delay. Under this approach the Court looks first to see if there is some minimal delay which “triggers” an examination into the four prong test. While a short delay may be sufficient to warrant a scrutiny of the surrounding circumstances, a somewhat longer delay of “substantial” length is necessary to “trigger” the presumption of prejudice. See State v. Jones, supra, at 22-23, 27-29.

      . Appellants note that “[d]uring the interval of the delay in this case, Appellant Wilson lost contact with one potential witness.” An examination of the record reveals that this loss pertains solely to the delay between January 13,1976, and January 19,1976, a delay attributable to the absence of Green’s counsel. See note 2, supra. We find it unnecessary, however, to examine the ramifications that this might have on Wilson since we conclude that this potential loss is more speculative than factual and does not amount to a demonstration of prejudice.


author: Menchine, J.,

text:
    STATE OF MARYLAND v. NELSON GEORGE CRIST
    [No. 250,
    September Term, 1976.]

      Decided December 29, 1976.

      The cause was submitted on brief to Morton, Menchine and Mason, JJ.
    Submitted by Francis B. Burch, Attorney General, Gilbert H. Robinette, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, for appellant.
    No appearance for appellee.
   Menchine, J.,

delivered the opinion of the Court.

On September 18, 1975, the State’s Attorney for Anne Arundel County, acting in behalf of the State of Maryland, filed a petition in the Circuit Court for Anne Arundel County seeking forfeiture of a handgun.

The petition alleged: (1) that Nelson George Crist was arrested on July 14, 1975, and was charged with violating Maryland Code Article 27, § 36B, being in possession of a pistol without a permit required by law; (2) that Nelson George Crist came to trial in the District Court for Anne Arundel County on August 25, 1975; was found guilty as charged and fined $250.00 and costs with the fine suspended; (3) that Nelson George Crist is the owner of the handgun; and (4) that the handgun has been retained in the custody of the Administrative Clerk of the District Court of Anne Arundel County from the date of trial to the date of the filing of the petition.

A show cause order was passed in the Circuit Court for Anne Arundel County, ordering Nelson George Crist to show cause why the described pistol should not be forfeited to the State of Maryland.

On October 10, 1975, Nelson George Crist demurred to the petition upon the ground that “more than 30 days has elapsed since the conviction of the defendant on August 25, 1975, without a Hearing having been scheduled, thus the State has failed to comply with the provisions of the statute.”

Judge Karl F. Biener thereafter passed the following order:

“This matter having come to the attention of the Court, for consideration, no hearing having been requested.
“THEREFORE, IT IS, on this 11th day of February, 1976, by the Circuit Court for Anne Arundel County, sitting in Equity, ADJUDGED, ORDERED and DECREED:
“That the demurrer submitted by the defendant be, and it is hereby, sustained without leave to amend.”

The State of Maryland has appealed.

The State’s asserted right to the forfeiture of the handgun in question arises under Maryland Code Article 27, § 36C, that reads as follows:

“§ 36C. Seizure md forfeiture.
(a) Property subject to seizure md forfeiture. — The following items of property shall be subject to seizure and forfeiture, and, upon forfeiture, no property right shall exist in them:
(i) Any handgun being worn, carried, or transported in violation of § 36B of this article.
(ii) All ammunition or other parts of or appurtenances to any such handgun worn, carried, or transported by such person or found in the immediate vicinity of such handgun.
(b) Procedure relating to seizure. — (i) Any property subject to seizure under subsection (a) hereof may be seized by any duly authorized law-enforcement officer, as an incident to an arrest or search and seizure.
(ii) Any such officer seizing such property under this section shall either place the property under seal or remove the same to a location designated either by the Maryland State Police or by the law-enforcement agency having jurisdiction in the locality.
(c) Procedure relating to forfeiture. — (1) Upon the seizure of property pursuant to this section, the State’s attorney shall notify any official agency which registers such property of the seizure and shall request the name and address of the owner thereof. If, as a result of such inquiry, or any other inquiry which he may conduct, the State’s attorney determines the name and address of the owner of the property, he shall notify the owner by certified mail of the seizure and of the State’s attorney’s determination of whether the owner knew or should have known that the property was worn, carried, transported or used in violation of § 36B.
(2) If the State’s attorney determines that the owner neither knew nor should have known of the use or intended use of the property in violation of § 36B, he shall surrender the property upon request to the owner unless he determines that the property is needed as evidence in a pending criminal case, in which event he shall return the property upon the final conclusion of the case or cases in which the property is needed as evidence.
(3) If the State’s attorney determines that the property should be forfeited to the State, he shall petition the circuit court of the appropriate subdivision in the name of the State of Maryland against the property as designated by make, model, year, and serial number or other identifying characteristic. The petition shall allege the seizure and set forth in general terms the causes or grounds of forfeiture. It shall also pray that the property be condemned as forfeited to the State and disposed of according to law.
(4) If the owner or owners of the property are unknown or cannot be found, notice of the seizure and intended forfeiture proceedings shall be made by publication in one or more newspapers published in the county in which the action is brought if there be one so published, and if not, in a newspaper having a substantial circulation in said county. In Baltimore City the notice shall be published in one or more of the daily newspapers published in the city. The notice shall state the substance and object of the original petition and give notice of the intended forfeiture proceedings.
(5) Within 30 days after service of the notice of seizure and intended forfeiture proceedings or within 30 days after the date of publication, the owner of the property seized may file an answer under oath to the petition.
(6) The court shall retain custody of the seized property pending prosecution of the person accused of violating § 36B and in case such person be found guilty, the property shall remain in the custody of the court until the hearing on the forfeiture is held. The hearing shall be scheduled no more than 30 days after conviction of the defendant, and reasonable notice shall be given to those parties filing an answer to the petition.
(7) If no timely answer is filed, the court shall hear evidence upon the use of the property in violation of § 36B and shall upon satisfactory proof thereof, order the property forfeited to the State.
(8) At the scheduled hearing, any owner who filed a timely answer may show by competent evidence that the property was not in fact used in violation of § 36B or that he neither knew or should have known that the property was being, or was to be so used. Upon the determination that the property was not so used, the court shall order that the property be released to the owner.
(9) If after a full hearing the court decides that the property was used in violation of § 36B or that the owner knew or should have, known that the property was being, or was to be so used, the court shall order that the property be forfeited to the State.
(d) Disposition of forfeited property. — Whenever property is forfeited under this section, it shall be turned over to the State Secretary of General Services who may (i) order the property retained for official use of State agencies, or (ii) make such other disposition of the property as he may deem appropriate. (1972, ch. 13, § 3; 1973, ch. 332.)”

It will have been noted that Article 27, § 36C (c) (6), supra, included the following language:

“The hearing [on the forfeiture] shall be scheduled no more than 30 days after conviction of the defendant, and reasonable notice shall be given to those parties filing an answer to the petition.” (Emphasis added.)

The action of the trial judge in sustaining the demurrer without leave to amend apparently was based upon his conclusion that the use of the word “shall” in the subsection mandated the scheduling of a forfeiture hearing within 30 days after the conviction and that the failure to do so destroyed the State’s right to obtain a forfeiture of the weapon. We do not agree and shall reverse.

In Hitchins v. City of Cumberland, 215 Md. 315, 138 A. 2d 359 (1958), Judge (later Chief Judge) William L. Henderson, speaking for the Court of Appeals, said at 323 [362-63]:

“. . . it is well settled that the use of the words ‘shall’ or ‘may’ are not controlling, in determining whether a particular provision is mandatory or directory.. . . The question of construction turns upon the intention of the Legislature as gathered from the nature of the subject matter and the purposes to be accomplished.”

Maryland State Bar Ass’n v. Frank, 272 Md. 528, 325 A. 2d 718 (1974), dealing with a disbarment statute requiring, inter alia, that the “bar association and/or State’s attorney .. . prosecute the charges named in said order on a day specified therein, which day shall not be less than fifteen or more than sixty days from the date of said order. . . .”, is persuasive upon the issue presented here. In Frank, it was said at 533-34 [721]:

“While it is true that the word ‘shall’ appears in the statute as it pertains to the sixty-day time limitation, nevertheless, ... we now hold that this time check is not mandatory but directory, and thus there is no loss of jurisdiction to pass upon the bar association’s petition. Although, ordinarily the use of the word ‘shall’ indicates a mandatory provision and therefore it is presumed that the word is used with that meaning, this is not so if the context indicates otherwise, as we believe it does here. Ginnavan v. Silverstone, 246 Md. 500, 505, 229 A. 2d 124 (1967). Though not controlling, we think it is of some significance in this regard that the language of the statute provides no penalty for failure to act within the time prescribed. Of more importance, it is clear that the broad policy of the law regulating conduct of attorneys authorized to practice law in this State is designed for the protection of the public, Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 549, 318 A. 2d 811 (1974), and that purpose would be largely vitiated if respondent’s restrictive interpretation were to prevail. These assertions justify the conclusion, we think, that the legislature intended the time direction of the statute to be directory and not mandatory. This result is in accord with the previous decisions of this Court which have considered the use of the word ‘shall’ to be directory when used in similar statutes or rules. See Pressley v. Warden, 242 Md. 405, 406-07, 219 A. 2d 25 (1966) (judge did not render decision within two months after case was argued or submitted as required by Art. IV, § 23 of the Maryland Constitution and by Rule 18 a); Holt v. Warden, 223 Md. 654, 657, 162 A. 2d 743 (1960) (sentence not passed within two-month period); Myers v. State, 218 Md. 49, 51, 145 A. 2d 228 (1958), cert. denied, 359 U. S. 945 (1959) (writ of error coram nobis not ruled on until after two months had elapsed); Snyder v. Cearfoss, 186 Md. 360, 370, 46 A. 2d 607 (1946) (ruling on a motion for new trial not given until two months after the date of hearing).”

See also Director v. Cash, 269 Md. 331, 305 A. 2d 833 (1973); Young v. State, 15 Md. App. 707, 292 A. 2d 137 (1972). Compare Md. Medical Service v. Carver, 238 Md. 466, 209 A. 2d 582 (1965).

Section 36C of Article 27 was brought into the statutory-law of Maryland as part of a broad legislative plan for “handgun” control. Ch. 13, § 3 Laws of 1972. Now codified as §§ 36B through 36P of Article 27 “Crimes and Punishments” under the sub-heading “Handguns,” this broad legislative plan was prefaced by the following statement of legislative policy:

“§ 36B. Wearing, carrying or transporting handgun; unlawful use in commission of crime.
(a) Declaration of policy. — The General Assembly of Maryland hereby finds and declares that:
(i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;
(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
(iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
(iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.”

The statute prohibited generally the wearing, carrying or transporting of handguns (§ 36B); authorized limited searches of persons reasonably believed to be wearing, carrying or transporting the same (§ 36D); imposed strict limitations upon permits to carry the same (§ 36E); and defined (a) the weapons included within the designation “handgun” and (b) the “law-enforcement personnel” excepted from its penal provisions (§ 36F).

We think that the broad design of the law was the protection of the public, a design that would be impaired by rigid time limitations upon the forfeiture provisions of the statute. We conclude that the Legislature intended the time fixed for scheduling hearings for forfeiture to be directory and not mandatory.

We reach this conclusion because: (a) the statute itself provides no sanction for a time violation; and (b) other provisions of § 36C itself would operate to make mandatory scheduling of forfeiture hearings within thirty days after conviction absurd, impossible, or likely to impede orderly court assignments.

Absurd, because a conviction in the District Court of Maryland for Anne Arundel County is subject to a right by the accused to appeal within 30 days from the final judgment. (Annotated Code of Maryland, Courts and Judicial Proceedings Article § 12-401; Maryland Rule 1312). If a successful appeal is taken, the right of the State to compel forfeiture may not arise at all under § 36C. Even an unsuccessful appeal would provide a new date of conviction because appeals from District Courts in criminal cases are heard de novo. Courts and Judicial Proceedings Article § 12-401 (c).

Impossible, because “owners who are served” or “owners who are unknown or cannot be found,” (§ 36C (c) (4)) are granted a period of 30 days after service or after publication within which to file answers in forfeiture proceedings (§ 36C (c)(5)).

Impede orderly court assignments, because in many cases it could not be known, on a date certain 30 days after conviction, whether the forfeiture proceeding would require merely the perfunctory hearing necessary for an ex parte hearing of undisputed facts or would involve a proceeding requiring resolution of conflicting testimony of numerous witnesses.

The overriding purpose of the total legislation was to control the use or carriage of handguns. The overriding purpose of § 36C was the seizure and forfeiture of all handguns found to have been knowingly employed in violation of those controls.

Achievement of these overriding purposes would be diminished or destroyed if handguns must be returned to lawbreakers because so weightless a time limitation is to be considered mandatory. We perceive no legislative intent that it be so considered.

Order reversed.

Costs to be paid by appellee.


author: Melvin, J.,

text:
    ERNEST W. WRIGHT et al. v. FLORENCE TROTTA et al.
    [No. 253,
    September Term, 1976.]

      Decided December 29, 1976.

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

      Mary Ellen Brooke for appellants.

      Edwin J. Wolf, with whom were Archibald Eccleston, III, and Eccleston, Seidler & Miller on the brief, for appellees Florence Trotta and Alphonso John Trotta, personal representatives of the estate of Frank J. Trotta. Joseph P. Rieger for other appellees.
   Melvin, J.,

delivered the opinion of the Court.

On 8 January 1974, the appellants, Ernest W. Wright and his wife, Oreva C. Wright, filed a second amended bill of complaint in the Circuit Court of Baltimore City seeking, among other things, an accounting of sums allegedly due them under a “percentage rental” clause in a “Lease Agreement” with Frank J. Trotta and Florence Trotta, his wife, two of the appellees here. After lengthy pre-trial proceedings, the case came on for trial before the chancellor on 2 February 1976. The evidence submitted to the chancellor consisted of various exhibits and stipulations of the parties. No testimony was taken or depositions offered. By decree dated 26 February 1976, the chancellor dismissed the second amended bill with prejudice and this appeal followed.

By the “Lease Agreement”, dated 19 June 1970, the Wrights leased to the Trottas premises in Baltimore City known as No. 2910 Edmondson Avenue, improved by a two-story brick building, for a term beginning 1 July 1970 and ending 30 June 1976, to be followed by another term beginning 1 July 1976 and ending 30 June 1980. The lease provided that “[t]hese consecutive terms shall end and begin, respectively, without notice and each is noncancellable”.

Prior to leasing 2910 Edmondson Avenue to the Trottas, Mr. Wright had used the premises as headquarters for selling memberships in his “Car Care Club”, an automobile club that apparently offered various services to its motorist members, such as payment for legal services incurred by members and payment for towing and emergency road services.

Also located at 2910 Edmondson Avenue, prior to the lease, was Broker’s Insurance Service, an insurance agency operated by Dianne D. McNaney, Mr. Wright’s daughter, who then held a valid license to sell insurance. Mr. Wright’s insurance license was cancelled in 1969. On the same date the lease was executed McNaney sold her insurance business to Mr. Trotta. The sales agreement provided that within 15 days of the date of the lease Trotta “shall form a corporation to conduct a general insurance agency” and that he “assign this Agreement to said Corporation and . . . have the Corporation assume the obligations imposed upon the Buyer by this Agreement. . . .”

The Lease Agreement between the Wrights and the Trottas likewise required the Trottas to form a corporation “which shall conduct the business of a general insurance agency” and a second corporation to “conduct the business of an automobile, travel or motorists’ service club”, and to assign the lease to both corporations “jointly and severally”.

The rent clause of the lease provided for a “fixed rental” plus a “percentage rental” for each term of the lease. In pertinent part the rent clause for the first term reads as follows:

“(a) Fixed Rental: the yearly sum of three thousand ($3,000.00) dollars in monthly installments, each in advance in the amount of Two hundred Fifty ($250.00) dollars, beginning for the first thereof on the first day of July, 1970, and continuing thereafter on the first day of each succeeding month during the continuation of this Lease;
(b) Percentage Rental: the further sums of money equal to the percentages of ‘gross sales’ or ‘gross writings’ or by whatever name the businesses of the Lessees shall be known, as follows:
(1) a sum equal to two and one-half (2V2%) percent of the gross premiums on all insurance policies written, by or through the insurance business conducted at the demised premises.
(2) a sum equal to twenty-five (25%) percent of the fee — by what ever name it be known — charged for each automobile, travel or motorists’ service club membership written by, through and/or for the Lessees in the State of Maryland', and
(3) a sum equal to five (5%) percent of the fee — by whatever name it be known — charged for each automobile, travel or motorists’ club membership written by, through and/or for the Lessees for residents of States other than Maryland.
The aforesaid percentage rentals are cumulative, not only each with the other, but also with the fixed rental specified in sub-paragraph (a) of this section.
As of the close of business on Friday of each week during the continuation of this Lease, and beginning for the first thereof on June 26th, 1970, the Lessees shall prepare and deliver to the Lessors at the place then fixed for payment of Rent, a sworn statement of gross writings of insurance policies and auto club memberships — as immediately hereinbefore defined — for the week then just ended. With each such weekly statement, the Lessees shall pay the percentage rental for that week, calculated as hereinbefore specified.” (Emphasis added.)

By an addendum to the lease, the Trottas “assume[d] the obligations of any memberships in the Car Care Club existing at the date of this lease”.

In August 1970, pursuant to the “Lease Agreement” the lease was assigned to Broker’s Insurance Service, Inc. and International Travel Club, Inc., both of which were apparently wholly owned and controlled by Mr. Trotta and through which he operated both an insurance agency and a motor club business at the leased premises on Edmondson Avenue. It appears from the stipulations submitted at trial that Mr. Trotta also owned and operated another insurance agency known as Howard Insurance Service, located at 635-37 North Howard Street in Baltimore City. The record does not reveal when this latter agency was formed.

It was further stipulated that “there has been an accounting of the rents ... in accord with the percentage rental agreement through and up to August 7, 1971 on a weekly basis, but there has been no accounting since then”; that the “base rent” (i.e. the “fixed rental” of $250 per month) had been paid through November 1972; that “on December 6th, 1973 no business was being conducted on the premises known as 2910 Edmondson Avenue; and that “the tenancy was terminated on 2910 Edmondson Avenue by a letter dated May 20, 1974 .. . from [the Trottas’ trustee] to Mr. Frank J. Trotta”. It further appears from the exhibits that the Wrights’ trustee sold the property on May 31, 1974, to a party unrelated to these proceedings.

I

The chancellor dismissed the second amended bill of complaint because he felt, as argued by appellees, that payments to the Wrights under the “percentage rental” clause of the lease was a violation of § 167 of Art. 48A of the Maryland Code (1972 Repl. vol.) and therefore the Wrights could not enforce the clause. Section 167 reads in pertinent part as follows:

“(a) License required to act as agent or broker. — No person shall in this State act as or hold himself out to be an agent or broker, nor shall any person in any manner solicit, negotiate, make or procure insurance covering subjects of insurance resident, located or to be performed in this State, unless then licensed therefor pursuant to this subtitle or not subject to the provisions hereof, except as otherwise provided in this article.
(b) Agent or broker not to solicit, etc., kinds of insurance for which he is not licensed. — No agent or broker shall solicit or take application for, negotiate, procure or place for others any kind of insurance for which he is not then qualified and licensed.
(c) Commissions, fees, etc., not to be paid to unlicensed persons. — No commission, fee, reward, rebate or other consideration for procuring or influencing the procurement of any insurance shall be paid, directly or indirectly, to any person who is not then licensed pursuant to the provisions of this subtitle, except as to the kinds of insurance, types of insurers and transactions exempted from the provisions of this subtitle by §§ 165 and 171; provided, however, that in the case of life insurance and health insurance the provisions of this section shall not prevent the payment or receipt of commissions on renewal premiums on existing policies or other deferred commissions to or by any person solely because such person has ceased to hold a license to act as agent, or broker except as otherwise provided by this article.
(d) Penalty. — Any person who violates any provision of this section shall be guilty of misdemeanor, and upon conviction thereof shall be subject to a fine of not more than $500.00 or to imprisonment for not more than 6 months, or both, for each such violation.” (Emphasis added).

It is clear that the requirement of the statute that an insurance agent or broker be licensed by the State is not merely for the purpose of raising revenue. The license is required primarily for the protection of the public and to prevent improper persons from acting as brokers or agents, Goldsmith v. Mfgrs.’ Liability Ins. Co., 132 Md. 283, 103 A. 627 (1918); therefore, any contract entered into by an unlicensed person requiring compensation to be paid him “directly or indirectly”, for his services in “procuring or influencing the procurement of any insurance” can not be enforced by such person. See Goldsmith, supra, pp. 286-289; 17 Am. Jur. 2d; Contracts, § 155 et seq. (1964).

Appellees argue that the Wrights “were using the guise of a Lease to profit from the sale of insurance, something Appellants could not do directly because they did not have a license”. Under the terms of the “Lease Agreement”, there is no doubt that the more insurance and motor club memberships the lessees sold the more the Wrights would profit. It does not follow, however, that payment by the Trottas or receipt by the Wrights of the “percentage rental” pursuant to the “Lease Agreement” is violative of § 167. There is nothing in the lease requiring, directly or indirectly, that the Wrights be paid anything “for procuring or influencing the procurement of any insurance”; nor is there any evidence that the percentage rent paid the Wrights up to 7 August 1971 or for which they seek an accounting since then, was, or is, in return “for procuring or influencing the procurement of any insurance”. The consideration for the “percentage rent” is the use and occupancy of the leased premises, not any activity on the part of the Wrights requiring them to be licensed.

A precept now firmly established in Maryland and enunciated by the Court of Appeals almost a century ago in Maryland Fertilizing and Manufacturing Company v. Newman, 60 Md. 584, 588 (1883), is that

“Parties have the right to make their contracts in what form they please, provided they consist with the law of the land; and it is the duty of the courts so to construe them, if possible, as to maintain them in their integrity and entirety.”

See Mortgage Investors of Washington v. Citizens Bank & Trust Co. of Maryland, 29 Md. App. 591, 347 A. 2d 647 (1976), cert. granted and affirmed, 277 Md. 739 (1976), for the latest recognition of this principle.

It is also firmly established that one who would avoid a contract on the ground of illegality has the burden of producing evidence to show the illegality. The rule was succinctly stated in McNally v. Moser, 210 Md. 127, 122 A. 2d 555 (1956):

“It was . . . [defendants] who pleaded illegality, it is they who had the duty of producing evidence to show it, and finally, it is they who had the burden of persuading the court that they had established the illegality. One who relies upon illegality, failure of consideration or other affirmative defenses, has imposed upon him the burden of persuasion.”

We find no evidence in the record before us from which the chancellor could properly find the “percentage rental” clause to be illegal. His fears that “this arrangement has all of the ingredients for a violation of the statute by way of procuring and influencing” are not enough. This is not to say that in a proper case a lease such as the one before us may not be found to be a mere sham to allow an unlicensed person to engage in activity for which regulatory statutes require him to be licensed. In the case before us, however, there is no evidence that in furtherance of the “Lease Agreement” the Wrights, or either of them, were required to or did in fact perform any act for which an insurance license is required. Indeed, the appellees do not claim that the Wrights performed or were required under the lease to perform any such acts, and there is no evidence or claim that the Trottas or their corporate assignees of the lease, in engaging in the insurance and motor club businesses, were acting as agents for the unlicensed Wrights, or that the Wrights otherwise exercised any control over those businesses.

The contention of the appellees is that because Mr. Wright discontinued to sell motor club memberships, because his daughter sold her insurance business, and because the tenants were required to use the premises for the conduct of an insurance business and a motor club business, the “percentage rental” clause is somehow illegal and may not be enforced. We cannot agree.

A “percentage rental” clause in a lease is, of course, not per se illegal; nor does such a clause “affect the validity of the relationship of landlord and tenant created by the lease, absent a union of the essential provisions of another distinct legal relationship”. 49 Am. Jur. 2d. Landlord & Tenant, § 519 (1970). In the case sub judice there is no claim or evidence that the relationship created by the “Lease Agreement” was anything other than that of landlord and tenant. Under these circumstances, the fact that a landlord does not have a license to engage in the business conducted by the tenant on the leased premises does not render a “percentage rental” clause in a lease unenforceable for illegality.

For the reasons stated, we hold that the chancellor erred in dismissing the second amended bill of complaint against the appellees, Alphonso John Trotta and Florence Kwiatkowski Trotta (the personal representatives of Frank J. Trotta) Florence Trotta, Brokers Insurance Service, Inc. and International Travel Club, Inc. As to these appellees we think the Wrights are entitled to an accounting of the “percentage rental” due under the “Lease Agreement” and as to them. the case will be remanded for further proceedings.

II

As to the other appellees captioned as respondents.in the second-amended bill of complaint, we shall affirm the decree of dismissal. These other appellees are Howard Insurance Service, Inc., Charles E. Chian and Howard Travel Club, Inc.

The gravamen of the allegations in the second-amended bill of complaint against Howard Insurance Service is that insurance business that allegedly “originated at No. 2910 Edmondson Ave.” was “deliberately” referred by the tenants “to the offices at Nos. 635-637 North Howard Street, at which latter address such insurance business has been written by Brokers Insurance Services, Inc. and/or Howard Insurance Service”, but that Howard Insurance Service and the other appellees “failed to account to the Complainants for such insurance business and to pay the percentage rent required ... . thus deliberately defrauding the Complainants of their rightful income”. As to Howard Insurance Service there was no evidence offered at trial substantiating these allegations.

As to appellees Charles E. Chian and Howard Travel Club, Inc., of which Chian was the controlling stockholder, the gravamen of the allegations against them is that they were also part of a “deliberate attempt . . . acting in concert with all the other Respondents ... to defraud the Complainants of the percentage rates to which they are entitled by the terms of the aforesaid lease”. After the stipulated evidence had been presented to the chancellor, the attorney for the appellants told the chancellor, “. . . that the evidence that has been introduced through stipulation would not be sufficient to support our claim against Mr. Chian [and presumably Howard Travel Club, Inc.]. Therefore we would like to reserve the right to put on brief testimony”. The chancellor replied: “When we get to his case”. The record shows that appellants never did “get to” the case against Chian or Howard Travel Club, Inc.; therefore, as to them the dismissal of the second-amended bill of complaint was entirely proper.

In this appeal, appellants nevertheless argue that their “position” against Chian and Howard Travel Club, Inc. is “preserved” because at the trial they “had not closed the case against the Chian Group”. They do not argue that they were prevented from presenting or proffering evidence to substantiate their allegations against the “Chian Group”, only that none was presented because the “trial court ... expressly stated that the case against the Chian Group must stand or fall with the decision in the case against the Trotta Group”. It is true that the chancellor did indicate, quite correctly we think, that if the “percentage rental” clause was unenforceable against the Trotta Group (i.e. Mrs. Trotta and Mr. Trotta’s personal representative and the assignee corporations) then the derivative claims against all other appellees-respondents would necessarily fail. This truism, however, did not prevent the appellants from offering evidence against the other appellees.

The case below was not presented pursuant to Md. Rule 502 as a separate trial of an issue at law. It was therefore incumbent upon the appellants to present whatever evidence they had to prove their case against all the appellees. As to those appellees against whom they failed to present such evidence nothing is “preserved” for yet another “day in court”.

Ill

The appellants further contend that “the trial court erred when it refused to allow the appellants to amend their bill of complaint after hearing on the merits, but before a decree was entered”.

On 5 February 1976, three days after the trial on the merits and prior to the entry of the decree of 26 February 1976 dismissing the second-amended bill of complaint, appellants filed a pleading entitled “Still Further Amendments to the Second Amended Bill of Complaint — As Amended and as Further Amended — For an Accounting, For Specific Performance of a Contract, Etc.” The amendments added to the second-amended bill of complaint allegations against the tenants (Mrs. Trotta and Mr. Trotta’s personal representatives and the two assignee corporations) that the “fixed rental” called for by the “Lease Agreement” had not been ■ paid since November, 1972, and asked for a money judgment against them for $7270, the amount alleged to be due therefor. On 6 February 1976 the tenants filed a “Motion Ne Recipiatur or To Strike” and a request for a hearing thereon. On 26 February 1976, the chancellor, without hearing, granted appellees’ motion. Appellants have appealed from the chancellor’s order granting the motion.

Amendments to actions at law or equity are governed by Md. Rule 320 which provides, in pertinent part:

“a. Scope and Purpose.
1. Process, Pleadings and Record.
Unless the court otherwise directs any of the proceedings, including process, pleadings, and record, may be amended so that the case may be tried on its merits.
* ❖ *
c. Time for Amendment.
1. Before Trial — Trial Before Court.
In a case heard or tried before the court uñthout a jury, any amendment may be made at any time before a final judgment or decree is entered.
d. Procedure.
1. Leave of Court Not Necessary.
An amendment may be made without leave of court subject to the right of objection made pursuant to Rule 320 d 5. (Amended July 1,1974.)
5. Objections to Amendment.
Objection to an amendment may be made by motion to strike filed within fifteen (15) days. Amendments shall be freely permitted in order to promote jus tice.
(Added July 1,1974.)

It is clear from the record and briefs that the tenants’ only defense to non-payment of rent was their erroneous contention that “the Lease in its entirety was illegal” and therefore unenforceable. This circumstance and: the stipulated fact that the base rent had been paid only through November, 1972 and the further stipulated fact that the tenancy was “terminated” on 20 May 1974, indicate a valid claim for at least part of the base rent claimed by the disallowed amendments, i. e„ the base rent from 1 December 1972 to 20 May 1974.

As we pointed out in Staub v. Staub, 31 Md. App. 478, 480 (1976):

“The Court of Appeals has repeatedly held that amendments should be freely permitted in order better to promote the ends of justice. Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 320 A. 2d 266 (1974); Preissman v. Harmatz, 264 Md. 715, 288 A. 2d 180 (1972); Earl v. Anchor Pontiac Buick, Inc., 246 Md. 653, 229 A. 2d 412 (1967); Jacobson v. Julian, 246 Md. 549, 229 A. 2d 108 (1967). This Court has likewise trod the same path. Zell v. Zell, 12 Md. App. 563, 280 A. 2d 22 (1971). An Amendment should not be allowed, however, if it will result in prejudice to the opponent or will unduly delay the results. Robertson v. Davis, 271 Md. 708, 319 A. 2d 816 (1974).”

In Crowe v. Houseworth, 272 Md. 481, 325 A. 2d 592 (1974), cited in Staub, the Court of Appeals said:

“One of the relatively recent, but nonetheless dramatic developments in the law, is the increased liberality with which amendments of pleadings may be allowed, with or without leave of court, if the ends of justice are served. Generally, this has been accomplished by either statute or rule. C. Clark, Law of Code Pleading § 115, at 708-15 (2d ed. 1947).” 272 Md. at 485.

As stated by the Court of Appeals in Robertson v. Davis, 271 Md. 708, at 709, “The objective of these rules is to facilitate the attainment of a just, speedy and inexpensive determination of all disputes between the same parties”.

While we recognize that “.. . the allowance or refusal of an amendment is ordinarily within the discretion of a trial court and that no appeal will lie from the action, in the absence of a clear showing of an abuse of discretion,” 272 Md. at 489, we think, in view of the “increased liberality” allowing amendments as evidenced by the Maryland Rules and decisions applying them, that under the circumstances of this case the amendments should have been allowed. In the circumstances, we fail to see how the amendments could result “in prejudice to the opponent or unduly delay the results”. Staub v. Staub, supra. Consequently, the order of 26 February 1976 granting appellees’ motion ne recipiatur or to strike will be reversed. This does not mean, however, that the full amount of the base rent claimed by the amendments should be awarded the appellants. The amount awarded should be restricted to the proof as it existed at the time of trial.

Decree of 26 February 1976 affirmed as to appellees Howard Insurance Service, Inc., Charles E. Chian and Howard Travel Club, Inc.; as to appellees, Alphonso John Trotta and Florence Kwiatkowski Trotta (personal representatives of Frank J. Trotta), Florence Trotta, Brokers Insurance Service, Inc., and International Travel Club, Inc., decree of 26 February 1976 reversed;

Order of 26 February 1976 granting appellees’ motion ne recipiatur or to strike reversed;

Case remanded for further proceedings not inconsistent with this opinion.

Costs to be paid two-thirds by appellees (except Howard Insurance Service, Inc., Charles E. Chian and Howard Travel Club, Inc.) and one-third by appellants.

      . The original bill of complaint was filed 26 July 1971.

      . For purposes of this appeal, we shall assume without deciding that at the time of the lease the sale of “motor club memberships” required an insurance license. See Code Art. 48 B, enacted 1 July 1971, and subsequent amendments thereto, for present statutory regulations concerning “Motor Clubs”.

      . Mr. Trotta died after the case was filed and prior to trial.

      . Although captioned “Howard Insurance Service, Inc.” the parties stipulated that “Howard Insurance ... is a sole proprietorship owned and operated by Frank J. Trotta”. The pleadings were not so amended, however.