author: Melvin, J.,

text:
    STATE OF MARYLAND v. MAURICE WILLIAM DEAN
    [No. 591,
    September Term, 1978.]

      Decided April 12, 1979.

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

      Diane G. Goldsmith, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and J. Owen Wise, State’s Attorney for Caroline County, on the brief, for appellant.

      John W. Sause, Jr., District Public Defender, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

In this appeal by the State, the single issue presented is whether the Circuit Court for Caroline County was correct when it granted the appellee’s motion to dismiss two felony charges against him on the ground that he was denied his constitutional right to a speedy trial — a right guaranteed by the Sixth Amendment to the Constitution and made applicable to the states through the Fourteenth Amendment. See Klopfer v. North Carolina, 386 U. S. 213, 222-226 (1967).

In reviewing the issue of whether one has been denied a constitutional right, such as the right to a speedy trial, we must make our own independent examination of the record as a whole and determine for ourselves whether the right has been denied. In speedy trial cases, the Supreme Court of the United States, in Barker v. Wingo, 407 U. S. 514, 530 (1972), identified four factors that courts should assess in determining the issue: (1) length of delay; (2) reason for delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant caused by the delay. In assessing these factors and the weight to be accorded them in a given case we engage in a difficult “balancing test, in which the conduct of both the prosecution and the defendant are weighed” Id. 407 U. S. at 530. See Wilson v. State, 281 Md. 640, 382 A. 2d 1053 (1978), cert. den., 439 U. S. 839.

Length of Delay

Both sides agree that the time clock began to run in this case on June 18, 1976. On that date three arrest warrants were issued by a Commissioner for the District Court of Caroline County charging the appellee, Maurice William Dean, with breaking and entering, grand larceny and receiving stolen goods. The hearing on Dean’s motion to dismiss the charges was held in the Circuit Court for Caroline County on June 5, 1978. Trial on the merits had previously been scheduled for June 22,1978. The State concedes, and we agree, that the time between June 18, 1976 and June 5, 1978 (slightly under two years) “in the instant case triggers further analysis so as to require this Court to engage in the prescribed balancing test”.

Reasons for the Delay

Different reasons for delay in prosecuting a defendant should be assigned different weights. Barker v. Wingo, supra, 407 U. S. at 531; Smith v. State, 276 Md. 521, 528 (1975). In this regard the Court of Appeals has noted in Jones v. State, 279 Md. 1, 6-7 (1976):

“. . . fAl continuum exists whereby a deliberate attempt to hamper the defense would be weighed most heavily against the State, a prolongation due to the negligence of the State would be weighed less heavily against it, a delay caused by a missing witness might be a neutral reason chargeable to neither party, and a delay attributable solely to the defendant himself would not be used to support the conclusion that he was denied a speedy trial.”

We now discuss the events between June 18,1976 and June 5, 1978 and the circumstances surrounding those events so far as we can determine from the record before ús.

On the morning of June 15, 1976, Corporal Donald H. Cox of the Maryland State Police was called to investigate a breaking and entering and grand larceny at the North Caroline High School, in Denton, Caroline County, Maryland. His investigation indicated that at least two unknown persons had broken into the school sometime after 3:10 P. M. the previous day and taken away various school band instruments valued at over $10,000.

On June 18,1976, at 3:00 P. M., Corporal Cox received a call from a Wilmington, Delaware, police detective who informed him that earlier that day Delaware police had searched an automobile in Wilmington operated by Dean. The search of the automobile revealed numerous musical instruments matching the description of those stolen from North Caroline High School. The three Maryland arrest warrants were then issued by a Commissioner for the District Court for Caroline County. In the meantime, however, Dean had been charged by Delaware authorities with receiving stolen property (the musical instruments from North Caroline High School) and was being detained in Delaware awaiting disposition of that charge.

On June 21, 1976, Corporal Cox went to Wilmington with the Caroline High School Band Director and recovered the stolen property from the Wilmington Police Department. While there he contacted Dean who refused to waive extradition.

Sometime between July 13 and July 30, 1976, the State’s Attorney for Caroline County initiated extradition procedures, pursuant to which the Governor of Maryland’s requisition for Dean’s return to Maryland was forwarded to the Governor of Delaware on July 30, 1976. See Md. Code, Art. 41, § 37 (1957,1978 repl. vol.).

By letter dated September 15, 1976, Delaware authorities notified Maryland that Dean and one Gary Price had been indicted in Delaware on “a charge of receiving stolen property and conspiracy in the second degree”, and that, “Due to the indictment... we cannot allow either Mr. Price or Mr. Dean to be extradited.” The letter stated that the Delaware trial was scheduled “within the next 30 days”. The letter suggested that “you file a detainer with the Delaware State Correctional Center in Smyrna, Delaware.”

On September21,1976, the State’s Attorney, following the advice of Delaware, forwarded certified copies of the Maryland arrest warrants to the Delaware State Correctional Center as detainers.

On September 22,1976, the detainers were returned to the State’s Attorney by the Delaware Correctional Center with a letter informing him that, “Subject Dean was released from our custody July 29, 1976 ...” and suggesting that “your warrants be directed” to the Police Chief of Wilmington “for service”.

On September 28, 1976, the State’s Attorney wrote to a member of the Wilmington Law Department reciting his unsuccessful efforts to obtain Dean’s return to Maryland. The letter ended plaintively: "Could you be of any assistance in telling us how to bring these men to trial in Caroline County?”

The reply from the Wilmington Law Department, dated October 1, 1976, was a suggestion that

“... you file Governor’s warrants with the State of Delaware, they will remain open for one year. If during that year the two men in question are acquitted or if a nolle prosequi is entered by the State in these matters, they will be immediately extradited. On the other hand, if they are convicted and sentenced to jail, you must then lodge a detainer against the two men.
“However, before you take any of these steps, I suggest that you contact Richard McMahon, Deputy Attorney General, Justice Department, State of Delaware, Wilmington, Delaware. Mr. McMahon will know the exact status of the two men and thus will be able to give you more information upon which you can base your decision.”

On November 1, 1976, the State’s Attorney wrote to the Maryland Secretary of State’s office stating:

“Several months ago our office submitted Extradition Papers on the above named two persons. Said Extradition Papers were returned to your office by the State of Delaware.
“There has now been a disposition of the charges against them in the State of Delaware. So that our rights under the Interstate Detainer Act are not compromised, would you please re-submit the Extradition Papers on the above named two Defendants for their return to the State of Maryland for trial.”

The record does not disclose when the extradition papers were resubmitted to Delaware, but apparently it was sometime prior to February 4, 1977, for on that date the Delaware Department of Justice wrote to the State’s Attorney for Caroline County stating in pertinent part: “Your requisition is being held in abeyance per further developments”. Other than this cryptic message there is no further explanation in the record of the status of the Delaware extradition proceedings or of the disposition of the Delaware charges against Dean. The record reveals no further communication from Delaware concerning Dean. Nor does the record reveal any further inquiry from Maryland to Delaware concerning him.

On September 12, 1977, Dean voluntarily returned to Maryland “to see my people” and was arrested and detained in Queen Anne’s County on separate charges pending against him in that county. He testified at the dismissal hearing that prior to that time, between June 18,1976 and September 1977, he was living “the entire time in Wilmington, Delaware”. He said that the Sheriff of Queen Anne’s County informed him at the time of his arrest that there were also “warrants for my arrest from Caroline County”. He said he then contacted the Public Defender’s Office “to ask for a faster speedy trial on the charges that was supposed to be pending on me in Caroline County”.

On September 20, 1977, the State’s Attorney of Caroline County forwarded to the Queen Anne’s County Jail “Arrest Warrants issued in this County” for the appellee, Maurice William Dean, with the request that they “be filed as Detainers against the Defendant”.

Presumably, proceedings were then had against Dean in Queen Anne’s County on the charges pending against him there.

On December21,1977, Dean was served with new warrants issued December 14,1977, re-charging him with breaking and entering, grand larceny and receiving stolen property, all in connection with the North Caroline High School incident that occurred on June 15, 1976. These new warrants were apparently issued because of the uncertainty of whether the original warrants had ever been served on the defendant and to allay any misapprehension that the Caroline County charges were not still open against Dean.

Dean requested a preliminary hearing on the three charges (all felonies) “in accordance with Maryland District Rule 727”. The preliminary hearing was held on February 21, 1978, eleven days after he was sentenced on the Queen Anne’s County charges (see note 1, supra). The preliminary hearing resulted in a finding of probable cause.

Thereafter, pursuant to Maryland Rule 727 i, the State’s Attorney filed a two-count information against Dean on March 15, 1978.

On April 26, 1978, Dean filed a motion to dismiss on the ground, inter alia, that he “has been denied his right to a speedy trial”. Previously, on April 18,1978, the case had been scheduled for trial on June 22, 1978.

After a hearing on June 5, 1978, the court granted the motion.

It will be seen that the chief cause of the two year delay in this case was the defendant’s absence from the State during the 18 months period from June 18, 1976 to September 12, 1977. Citing Isaacs v. State, 31 Md. App. 604 (1976), the State would charge that entire 18 months delay to the defendant. In Isaacs, at 614, we said: “Manifestly, appellant cannot avail himself of Barker and its progeny, when it is he, by his criminal acts in another State, or his wilful absence from Maryland, which prevented this State from proceeding with trial.” In Isaacs, we further said the defendant, who had been arrested and sentenced for another crime in another State, was “chargeable with any delay” in his Maryland trial while he was “dehors the jurisdiction of the State of Maryland” “until he and the custodial State had complied with the Interstate Detainer Act, thereby waiving extradition and consenting '... to the production of his body ...’ in the Circuit Court for Allegany County, Md. Ann. Code art. 27, § 616 D (e).”

In relying upon the above quoted language in Isaacs as “dispositive” of this appeal, we think the State reads it out of context with the facts of that case. [There was evidence that the State’s Attorney for Allegany County had attemptéd, unsuccessfully, to secure temporary custody of the defendant from the State of Georgia]. Nevertheless, upon further reflection and in view of the more recent Court of Appeals opinion in Wilson v. State, 281 Md. 640 (1978), we now think the above quoted language in Isaacs may be too broad. In Wilson, the Court of Appeals, in an opinion by Judge Orth (formerly Chief Judge of this Court), affirmed this Court’s reversal of the trial court’s dismissal of criminal charges on speedy trial grounds. In doing so, however, the Court emphasized “that ‘[a] defendant has no duty to bring himself to trial; the State has that duty ... ‘Barker v. Wingo____It follows, therefore, that the State may not excuse delay in bringing an accused to trial merely because he is incarcerated for other offenses in this or other jurisdictions”. Id. at 642 (emphasis supplied). It would seem, therefore, that an accused incarcerated in another state is not required to invoke the provisions of the Interstate Detainer Act (Art. 27, § 616 D) as a condition precedent to preserving his claim to a denial of his speedy trial rights guaranteed by the Sixth Amendment to the Constitution of the United States. The mere fact that he does not invoke the Act’s provisions does not of itself warrant attributing him with delay in his Maryland trial. This is so because there are provisions in the Act that enable the State to obtain custody of the accused irrespective of whether the accused himself initiates any of its provisions.

Nor does the mere fact that an accused, although not incarcerated, voluntarily remains beyond the jurisdiction of the State necessarily mean that any resulting delay in his trial should be attributed to him and not the State. Here again there are provisions in the law (extradition proceedings) designed to enable the State to bring the accused to trial.

To summarize, where the accused is beyond the jurisdiction of the trial court, whether incarcerated or not, proper assessment of the “cause of delay” factor in the balancing process depends on the facts and circumstances of the particular case — and not merely on the fact that he is absent, voluntarily or otherwise.

In the present case, the hearing judge said:

“.... From the exhibits that have been introduced by Mr. Wise, as well as the exhibits that are introduced by the Defendant, it appears that Mr. Wise, as the prosecutor for Caroline County, has done everything that is reasonable for a prosecutor to-do in an effort to bring Mr. Dean to trial on the charges that arose back in June of 1976”.

The judge felt, however, that the State’s Attorney should have presented the matter to the Caroline County grand jury in November of 1976 or April of 1977. [The grand jury in Caroline County meets in November and April of each year]. If this had been done and an indictment filed, the judge opined that the case would have “gotten in shape immediately to proceed” without the further delay occasioned by the preliminary hearing procedures in the District Court after Dean had been detained in Queen Anne’s County.

We take a somewhat different view concerning the State’s efforts to bring Dean to trial. We agree that the period June 18, 1976 through February 4, 1977, a period of IVz months, should not be chargeable to the State, for the record is clear that for at least that period of time the State of Delaware refused to release Dean to Maryland for trial. The record is silent concerning any efforts by the State to obtain custody of Dean from Delaware during the 714 months from February 4, 1977 to September 12, 1977, the date of his voluntary return to Maryland. There is no indication in the record that during this period Dean was elsewhere than at his known residence in Wilmington, Delaware. If the State made further efforts or even inquiries concerning his status in Delaware during this period, the record does not reflect them. We think this time therefore should be charged to the State. There is, however, no evidence whatever that the delay was “a deliberate attempt to hamper the defense” (see Jones v. State, supra). At worst, in the circumstances, we think it falls in the category of negligence by the State and is “weighed less heavily against it”. Id. at 6-7.

Once Dean was apprehended in Queen Anne’s County, we think the State’s Attorney for Caroline County acted with reasonable dispatch and well “within the requirements of orderly procedure”. Epps v. State, 276 Md. 96, 112 (1975). One week after his arrest in Queen Anne’s County, detainers were filed against him regarding the Caroline County charges. The day after his trial in Queen Anne’s County on December 21, 1977, new warrants were served upon him there and a preliminary hearing scheduled for February 7, 1978, which was changed to February 21, 1978, at his counsel’s request. After the preliminary hearing resulted in a finding of probable cause and within the time required by Maryland Rule 727 i, the two-count information against Dean was filed on March 15, 1978 in the Circuit Court for Caroline County. On April 18, 1978, the case was scheduled for trial on June 22, 1978, slightly more than 3 months after the information against him was filed.

We do not agree that the State should be charged with any delay that may have resulted from its election not to have Dean indicted by the Grand Jury before his return to Maryland. It is undoubtedly true that the preliminary hearing procedure did result in some delay in scheduling the case for trial on its merits. On the other hand, it was Dean himself who invoked his right to a preliminary hearing (including a postponement of the hearing date). Although the time involved in following this procedure should not be chargeable to Dean, neither should it be chargeable to the State.

Defendant’s Assertion of his Right

In Barker v. Wingo, supra, 407 U. S. at 531-532, the Supreme Court said:

“The defendant’s assertion of his speedy trial right then is entitled to strong evidentiary weight in determining whether the defendant is being deprived of his right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”

The record reflects that by December 21, 1977, the State’s Attorney for Caroline County was aware that Dean had told the Public Defender’s Office to ask for a speedy trial. No formal motion was filed, however, until April 26, 1978 and that was not a motion for speedy trial but a motion to dismiss for, inter alia, denial of his right to a speedy trial.

The Court in Barker further said: “Whether and how a defendant asserts his right is closely related to the other factors ....” Id. 407 U. S. at 531-532.

Prejudice to the Defendant

The trial judge found no actual prejudice to Dean resulting from the delay [“And with respect to the prejudice thing, there has been no actual prejudice shown”]. Upon our independent review, we agree.

“Prejudice ... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. [The Supreme Court] has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired”. Barker v. Wingo, supra at 532.

(i)

With respect to Dean, there is no evidence that he suffered any pre-trial incarceration as a result of the Caroline County charges.

(ii)

Dean testified at the dismissal hearing that while he was still in Delaware resisting extradition to Maryland, he was told by his attorney there, on September 15, 1976, that the Maryland charges had been “dropped”, and that he did not become aware of this erroneous advice until his return to Maryland a year later in September 1977. During this period he said “... there wasn’t anything to worry about”. In the circumstances, we assess the “anxiety and concern” interest identified in Barker as insignificant in the context of Dean’s speedy trial rights.

(iii)

There is no evidence that the defense was impaired in any way by the delay.

The Balancing Process

In applying the balancing test by assessing the four factors set out in Barker, we conclude, after our mandated independent review of the record as a whole, that Dean was not denied his right to a speedy trial. What we said in State v. Dubose, 17 Md. App. 292, 299-300 (1973) applies here:

“The Supreme Court said in Beavers v. Haubert, 198 U. S. 77, 87, and affirmed in Barker, at 522:
‘The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.’

Justice is supposed to be swift but deliberate. United States v. Ewell, 383 U. S. 116, 120. The action of the trial court in the circumstances shown by the record was not necessary to secure [the defendant’s] rights, but did preclude the rights of public justice, because it meant that [the defendant] charged with a serious crime, went free without being tried. It is patent that the severe remedy of dismissal of the indictment, proper when the right to a speedy trial is denied, was nowise here warranted.”

Judgment reversed; case remanded for trial; costs to be paid by appellee; mandate to issue forthwith.

      . The State’s brief tells us that according to docket entries in Queen Anne’s County, Dean was indicted in Queen Anne’s County on October 3, 1977; trial was held on those charges on December 20, 1977, resulting in guilty findings of daytime housebreaking with intent to steal and grand larceny; and that on February 10,1978, Dean was sentenced to 10 years on each charge, to be served concurrently. Although there is nothing in the record before us to substantiate these statements, Dean’s brief does not controvert them in any way or object to the inclusion of this information in the State’s brief.

      . See Md. Code (1957, 1976 Repl. Vol.), Art. 27, fj 616P (b) (2).


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    FRANKLIN JAMES LLOYD v. STATE OF MARYLAND
    [No. 609,
    September Term, 1978.]

      Decided April 12, 1979.

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

      Richard B. Talkin and Ellen Levy Widen, with whom were Talkin & Abramson on the brief, for appellant.

      F Ford Loker, Assistant Attorney Generalwith whom were Francis Bill Burch, Attorney General, Sandra A. O’Connor; State’s Attorney for Baltimore County, and Jeffrey Himmelstein, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

This case arises from an October 22,1977, incident in which an automobile driven by appellant, Franklin James Lloyd, struck and killed a thirteen year old female pedestrian. On December 28, 1977, appellant was convicted in the District Court for Baltimore County (Sfekas, J.) on charges of driving while intoxicated and failing to exercise due care to avoid colliding with a pedestrian.

It appears that by the time of his district court trial, appellant had become aware of a letter from the Baltimore County State’s Attorney to an attorney representing the family of the deceased pedestrian which indicated that a decision had been made not to prosecute appellant for manslaughter by automobile.

On February 27, 1978, however, appellant was further charged in an indictment with the crime of manslaughter by automobile for his involvement in the same accident. Appellant moved to dismiss this charge on grounds of double jeopardy and estoppel at a pretrial hearing in the Circuit Court for Baltimore County (Hormes, J.) on May 11, 1978. From a denial of that motion, appellant takes this appeal.

Appellant contends that trying him for manslaughter by automobile after his conviction for driving while intoxicated infringes upon his constitutional protection against double jeopardy because he is being tried twice for the same offense. He says that, for the purposes of double jeopardy, manslaughter by automobile and driving while intoxicated are the same.

If these two offenses are the “same,” then appellant is indeed being twice put in jeopardy. The applicable test for making this determination was recently reiterated by the Supreme Court in Brown v. Ohio, 432 U. S. 161, 166 (1977).

“The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. U.S., 284 U.S. 299, 304 (1932):

‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there, are two offenses or only one, is whether each provision requires proof of an additional fact that the other does not----’”

This test has come to be known as the “required evidence” or “same evidence” test. In Newton v. State, 280 Md. 260, 266 (1977), the Court of Appeals cited with approval the guiding principles set out in Thomas v. State, 277 Md. 257, 267 (1976):

“ ‘Certain principles concerning the required evidence or same evidence test emerge from the cases. The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes.’ ”

See also Brooks v. State, 284 Md. 416 (1979), in which the Court of Appeals reaffirmed that the "required evidence” test is the general standard in Maryland for determining whether two offenses are distinct for purposes of double jeopardy as well as merger.

Appellant urges that manslaughter by automobile requires proof of only one more additional fact than does driving while intoxicated and that the latter charge merges into the former, making them the same for double jeopardy purposes. He argues that there are three elements of manslaughter by automobile: (1) operation of a motor vehicle, (2) gross negligence and (3) the death of a person; and that there are two elements of driving while intoxicated: (1) operation of a motor vehicle and (2) intoxication. Since he reads Blackwell v. State, 34 Md. App. 547 (1977) to equate gross negligence with intoxication, he concludes that there are no distinct elements in a driving while intoxicated case and that there is only one additional fact required to prove manslaughter by automobile, namely, the death of a person.

Assuming, arguendo, that appellant has properly identified the elements of the two offenses, we still cannot accept his argument. The issue in Blackwell was whether a showing of intoxication, alone, could be sufficient evidence of the “wanton or reckless disregard for human life,” or gross negligence, required to prove manslaughter by automobile. After observing that this precise point had never been addressed in Maryland, we stated:

“[0]ne who drives [while intoxicated] may be inferred to have disregarded human life both wantonly and recklessly. When death ensues, inferentially and directly attributable to a breach of duty by appellant, derived from his self-induced condition of intoxication, driving while drunk maybe sufficient to raise the cause of death from simple negligence to gross negligence, as a factual determination to be made by the fact-finder." (Emphasis supplied.) Id. at 565-66.

We read Blackwell as holding that “extreme” intoxication by itself may indicate a “wanton or reckless disregard” and therefore justify a finding of gross negligence. Under Blackwell, however, it is clear that such a finding is not automatic simply because there is evidence of intoxication. Rather, the issue must be determined by the fact-finder on a case by case basis. This holding cannot be said, as appellant contends, to equate intoxication with gross negligence.

A further problem we see in appellant’s attempt to equate intoxication with gross negligence stems from the fact that a manslaughter charge, like other negligence cases, requires proof of a causal link between the breach of duty and the death. Id. at 557; Md. Code, art. 27, § 388. Whether causation is regarded as a separate element or as a component of the gross negligence element, there is, obviously, no corresponding showing of causation required in a drunken driving case. No Maryland court has ever held that intoxication by itself is sufficient evidence of causation and we did not reach that question in Blackwell where there was ample evidence of negligent causative factors. We did observe that a minority of states had eliminated the necessity of proving causation where the driver was intoxicated and we cited as an example the case of State v. Costello, 367 P. 2d 816 (1962). See Blackwell, supra, at 564, n. 9. Costello, however, involved a Washington negligent homicide statute which on its face did not require proof of causation if a driver was intoxicated. Such a statute is simply not comparable to Maryland’s automobile manslaughter statute. In any event, we are not now inclined toward adopting a reading of the Maryland law which would obviate proof of causation in an automobile manslaughter case.

For the reasons outlined above, we conclude that driving while intoxicated and manslaughter by automobile are separate and distinct offenses under the “required evidence” test. Accordingly, that prong of appellant’s double jeopardy claim must fail.

It should also be noted that even if the State actually adduced no more evidence than appellant’s drunkenness to show the gross negligence element of manslaughter by automobile, there would still not be double jeopardy because the “required evidence” necessary to prove the two offenses remains legally distinct even though the “actual evidence” is factually similar. The Supreme Court rejected an “actual evidence” test for purposes of double jeopardy in Harris v. United States, 359 U. S. 19 (1959). See Newton, supra, at 271.

Appellant also argues that since one of the policies behind the double jeopardy concept is that the government act with fundamental fairness, we should find that he has been placed in double jeopardy if we find he has been treated unfairly. The short answer to this tautologous argument is that we not only disagree with the notion that a showing of unfairness alone can invoke double jeopardy protection, but also do not see in this case that appellant has been treated unfairly or that the State acted in bad faith.

Appellant’s final contention is that the State is estopped from prosecuting him for manslaughter by automobile. Although appellant concedes that historically the doctrine of equitable estoppel has not been applied to criminal proceedings in Maryland, he nonetheless urges that we apply it here because he relied, to his detriment, on the letter written by the Baltimore County State’s Attorney stating that she did not intend to prosecute him for manslaughter by automobile.

Appellant claims that his detrimental reliance consisted of electing not to testify in his own behalf and submitting no defense witnesses at his trial in the district court. There are several problems with this argument. First, it is not clear how appellant could rely at all on a letter addressed to someone other than himself. No assurances were made to him. Assuming, however, that he could so rely, it is not clear how his tactical decisions demonstrate a reliance that was based on a decision by the State not to prosecute, despite the letter. The apparent purpose of these tactical decisions was to keep any potentially damaging information out of the record.

Finally, assuming that appellant could and did detrimentally rely on the written statement of the state’s attorney, it is unclear how this would affect the well established right of the grand jury to investigate and present an indictment even when the state’s attorney has not initiated the proceedings. See Brack v. Wells, 184 Md. 86 (1945). For these reasons, we find no merit in appellant’s estoppel argument.

Judgments affirmed; costs to be paid by appellant.

      . Appellant did not develop a double jeopardy argument under the “required evidence” test respecting his conviction for failure to exercise due care to avoid colliding with a pedestrian. We would note that this offense is also distinct from mianslaughter by automobile, inasmuch as the former offense requires a specific class of victim and only simple negligence while the latter requires evidence of “gross negligence” and the death of any person.


author: Thompson, J.,

text:
    DIALIST COMPANY v. DAVID W. PULFORD
    [No. 656,
    September Term, 1978.]

      Decided April 12, 1979.

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

      Jerrold B. Pinsker and Stuart R. Blatt for appellant.

      Eric M. May for appellee.
   Thompson, J.,

delivered the opinion of the Court.

In this case we are concerned with whether or not Judge Ralph G. Shure, sitting in the Circuit Court for Montgomery County, properly used parol evidence to interpret a contract, properly determined that there had been a material breach of the contract, and properly determined the amount of damages.

The Dialist Company (appellant) of Houston, Texas produces a small plastic tray which contains printed advertising of merchants and is designed to slide underneath a telephone so consumers can refer to it when calling merchants. This item is referred to as a “Dialist.” In October 1976, the appellant advertised in the Washington Post for a “Sales Director.” The Sales Director was expected to sell advertising space on the Dialists and arrange for their distribution at business establishments, such as banks, where there existed a high volume of customer traffic.

David Pulford (appellee) replied to the newspaper advertisement, and James. Cronin, Vice President of the appellant, came to the Washington area to meet with him and other prospects. In a series of three meetings, Mr. Cronin and Mr. Pulford discussed the product, Mr. Pulford’s background in the sale of advertising space, and the way in which the territory of the Baltimore-Washington-Virginia market would be divided. In the second of the meetings, Mr. Cronin told appellee the company was considering two distributorships in this market, but that “the final lines on the map had not been drawn.” Mr. Cronin admitted in his testimony that he told appellee that no one would infringe on this territory and no one else would sell in his territory.

The meetings resulted in the execution of a contract on a typewritten form with handwritten terms added at spaces provided for that purpose. The company granted a distributorship to Mr. Pulford to sell the product and required that he purchase a minimum of 2,000 of the products every month, beginning in February 1977, at a stated price, subject to change on thirty days’ notice. The distributor paid the initial sum of $2,500 and agreed to develop the territory to his and the company’s advantage. The specific clause in issue reads as follows:

“2. Company hereby grants to Distributor the distributorship to sell Dialists and the supplies therefor within the following territories to-wit: See Maryland Map 8718, Signed by James R. Cronin and David W. Pulford which is incorporated herein by reference for all purposes.” (The underlined portions are handwritten.)

A map was attached showing an outline in pen encircling the District of Columbia and the State of Maryland except for the four southern Maryland counties. In the center of the circled territory, in block capital letters, appear the words “DAVID W. PULFORD TERRITORY.”

In reliance on the contract the appellee terminated his employment, sold some stock in order to raise funds, and expended funds in order to begin working on the project.

On January 3, 1977, Mr. Pulford telephoned William Krauser, the other distributor in this area, and learned that both of them had been assigned the territory of the District of Columbia and each considered it his exclusive territory. When Mr. Pulford contacted Mr. Cronin in Houston over the apparent discrepancy, he was informed that the matter would be checked into but he never heard from Mr. Cronin again. He did receive some correspondence from Mr. Herman L. Smith, president of the appellant, exhorting him to sell. The appellee testified that, nevertheless, he began calling on prospective customers in Montgomery County on January 3, 1977. In the ensuing weeks he received commitments from seven businesses for an advertising gross of $531.35. After obtaining five of those advertising commitments, Mr. Pulford wrote to Herman Smith, on January 18,1977, inquiring about possible sales tax liability and in another note, of the same date, stated, “I am more than concerned that I have not heard from you since ... I advised you that my contract was in direct conflict with that of Bill Krauser...,” adding, “Perhaps you would rather forget the whole thing. If so, please return my $2,500.00 and I will return your samples, etc.”

On January 31, 1977, appellee, by letter, demanded rescission of the agreement because a part of his territory had been assigned to Krauser. On February 10, 1977, the appellant company sent a letter to the appellee explaining the sales tax issue and stating that the distributorship agreement was a non-exclusive contract under Texas law and otherwise would be in violation of the Sherman Antitrust Act. **S.Mr. Pulford again on February 17,1977 and once more on March 2, 1977, demanded that his $2,500.00 be returned. On March 10, 1977, the appellant notified the appellee that his distributorship was terminated for failure to fulfill his monthly sales quota as per the contract. Mr. Pulford testified that he had spent “parts of 5 or 6 days” working in Montgomery County on selling advertising space for Dialist units. Mr. Pulford testified he never made any sales in the District of Columbia, was not aware that any other person sold any Dialists in the District of Columbia and was never told not to sell in the District of Columbia.

Judge Shure, sitting without a jury, held that the intent of the parties was to give the appellee an exclusive distributorship, and as Mr. Pulford was not given what he bargained for he had a right to rescind, which he did either on January 31, 1977, or February 17, 1977, which rescission was accepted by the appellant on March 10, 1977. The court stated that as the appellee had the right to rescind he was entitled to damages.

Parol Evidence

The appellant first contends that although it was proper for the trial judge to permit parol testimony as to the alleged fraud it was improper for him to consider such testimony in construing the written contract after he disallowed the count for fraud. Citing Billmyre v. Sacred Heart Hospital, 273 Md. 638, 331 A. 2d 313 (1975); Kermisch v. Savings Bank of Baltimore, 266 Md. 557, 295 A. 2d 776 (1972); and Devereux v. Berger, 253 Md. 264, 269, 252 A. 2d 469 (1969), appellant argues that when the language of a contract is clear the test of what is meant is not what the parties intended it to mean but what a reasonable person in the position of the parties would have thought it meant. This position is correct as far as it goes, but in our view the contract here under consideration was not without ambiguity and, therefore, the court could properly rely on the parol evidence in its interpretation. See Canaras v. Lift Truck Services, 272 Md. 337, 322 A. 2d 866 (1974) and DWS Holdings, Inc. v. Hyde Park Assoc., 33 Md. App. 667, 365 A. 2d 554 (1976). We entirely agree with Mister Filters, Inc. v. Weber Environmental Systems, 44 A.D.2d 639, 353 N.Y.S.2d 835, 837 (1974) in which the Court said:

“[T]he combination of an assigned territory and the failure to specify whether or not it was an exclusive territory render the meaning of the contract unclear and ambiguous. The trial court properly permitted oral testimony of the facts and circumstances surrounding the making of the contract including the prior oral agreements between the parties, and of the representations made by the representatives of the appellant to respondent for the purpose of arriving at the meaning of the terms of the agreement.”

Materiality of the Breach

Appellant argues that any breach of the contract was immaterial because appellee was never prevented from selling in the District of Columbia and no sales were made there by anyone else. Appellee contracted for the exclusive right to distribute appellant’s product in Washington, D.C. and most of Maryland. The exclusivity feature of the contract was material because it meant that appellee would be the sole distributor in those areas and any work he did to build up the sales of the Dialist there would redound to his own benefit and not to the benefit of someone else. Where the breach is such that further performance of the contract would be “different in substance from that which was contracted for” it is a material and substantial breach. Traylor v. Grafton, 273 Md. 649, 687, 332 A. 2d 651 (1975). We agree with the trial court that the breach was material.

Damages

The further contention by appellant that appellee suffered no damage by reason of the breach because no one attempted to sell in the District of Columbia is specious. Appellant’s repudiation of the contract’s exclusivity feature deprived appellee of a substantial benefit of his bargain. The value of the contract as an exclusive distributorship would be greater than as a non-exclusive distributorship. Appellee, having bargained for an exclusive distributorship, could not reasonably be expected to settle for something less, or to continue with the arrangement once the important feature of exclusivity had been repudiated by appellant. McKeever v. Washington Heights Realty Corp., 183 Md. 216, 220, 37 A. 2d 305 (1944).

Appellant finally contends that if appellee is entitled to recover anything on account of the breach such recovery must be measured under either a theory of restitution or one of damages, but not both. If restitution is the measure, appellant argues, then appellee is entitled to recover only the price paid under the contract. If damages are sought, it is argued, there can be no recovery because proof of the amount of the loss, if any, did not rise above mere speculation. Although there is language in the trial judge’s opinion which would suggest that the remedy involved here is one of rescission and restitution, as we explained in note 3, the substance of the lower court’s holding, and the pleadings and the evidence all indicate that appellee sought, and was entitled to, relief in the form of damages for breach. See Glen Alden Corp. v. Duvall, 240 Md. 405, 428, 215 A. 2d 155 (1965).

Under ordinary circumstances the measure of damages for a breach of contract is that sum which would put plaintiff in as good a position as he would have occupied had the contract been fully performed, subject of course, to the limitations of remoteness and speculativeness. United States v. Behan, 110 U. S. 338, 4 S. Ct. 81, 83-4, 28 L. Ed. 168 (1884); Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Co. v. Messenger, 181 Md. 295, 300, 29 A. 2d 653 (1943). Such sum is usually the amount of profit which would have been derived from the agreement had no breach occurred. M & R Contractors & Builders, Inc. v. Michael, 215 Md. 340, 351, 138 A. 2d 350 (1958). Where the non-defaulting party has incurred expenses in preparation for, or part performance of, the contract such expenses may also be recovered. United States v. Behan, supra; Angelozzi v. Nelson, 156 Md. 558, 563, 144 A. 705 (1929). Cases arise where, for one reason or another, it is impossible to prove with any reasonable certainty the amount of such expected profits. In that event, the law does not necessarily leave the aggrieved party without remedy. The applicable rule under such circumstances is succinctly stated in 5 Corbin, Contracts, § 1031, pages 188-191 (1964):

“It is often very difficult to estimate the amount of profits that have been prevented by the breach of contract not only because of uncertainty in the happening of various contingencies, but also because of difficulty in determining the money value of a promised performance, or the cost of completion by the plaintiff. There is usually little difficulty, however, in proving what has already been expended by the plaintiff prior to the date of breach by way of preparation and part-performance. The fact that profits are too uncertain for recovery does not prevent a judgment in favor of the plaintiff for the amount of his expenditures. This rule has been recognized and applied many times by the courts; and it has been stated as an alternative measure of recovery by the American Law Institute, with certain limitations____” (Footnotes omitted.)

See also, Restatement of Contracts, § 333 (1932).

Closely related to the type of expenditures just discussed, and sometimes includable in an award of damages, are expenditures made in reliance on a contract but not strictly in part performance of it, or as necessary preparation for performance. The nature of such expenses and the propriety of including them in a damage award is explained in 5 Corbin, supra, § 1035, pages 207-08:

“There are many expenditures made in reliance upon an existing contract that can not properly be regarded as having been made in part performance of it, or even as in necessary preparation for such performance. Such expenditures as these are not expected to be compensated directly by the payments or other performance promised by the defendant, for they do not constitute a part of the agreed exchange. Nevertheless, the net loss involved in such expenditures may be included in the damages awarded, if at the time the contract was made the defendant had reason to foresee that such expenditures would be made and that his own breach would prevent their reimbursement. The expenditures now referred to are collateral to performance of the contract for breach of which the action for damages is brought; and the net losses resulting may readily be regarded as too remote from contemplation and too likely to be the result of other factors to justify their inclusion in the damages for breach. Whenever their inclusion is just, their amount is an addition to the full contract price unpaid — that is, to the full value of the performance promised and not rendered by the defendant. They are included in damages, not because they would have been directly reimbursed by the performance promised by the defendant (or by its ‘value’ as ordinarily measured), but because the defendant’s breach has prevented probable future gains and has rendered determination of their amount impossible.” (Footnotes omitted.)

Such expenditures are not brought about by reason of the breach. They are induced by reliance on the contract itself and rendered worthless by its breach. For an excellent discussion of the point see, In Re Yeager Co., 227 F. Supp. 92, 96-97 (N.D. Ohio 1963); 5 Corbin, supra, §§ 1031, 1035. The expenditures incurred by a party in preparation for, part performance of, or otherwise in reliance on, a contract are sometimes referred to as the party’s reliance interest. On the other hand, the gains which a contracting party expected to reap from the agreement are sometimes referred to as his expectation interest. See, e.g., In Re Yeager Co., supra. The award of a party’s reliance interest as a measure of damages may serve as an alternative to the ordinary award of his expectation interest. This alternative may be employed when the available evidence relevant to anticipated profits permits no more than a speculative estimate as to their amount.

In some cases it may appear that full performance would have resulted in a net loss. Certainly, in such a case the plaintiff should not be permitted to escape the consequences of a bad bargain by falling back on his reliance interest. Where it can be shown that the plaintiff would have sustained a loss had the contract been fully performed he should not be relieved of the consequences of the agreement by the fortuitous circumstance of the other party’s breach. Yet, where the breach has prevented an anticipated gain and, at the same time, made proof of the consequential loss difficult, the burden of proving that performance would have resulted in a loss to plaintiff anyway should be on the party breaching the contract. This principle was ably stated in Holt v. United Security Life Ins. & Trust Co., 76 N.J.L. 585, 72 A. 301, 306 (1909):

“But where one party repudiates, and thus prevents the other from gaining the contemplated profit, it is not, we think, to be presumed in favor of the wrongdoer (in the absence of evidence) that complete performance of the agreement would not have resulted in at least reimbursing the injured party for his outlay fairly made in part performance of it. Ordinarily, the performance of agreements results in advantage to both parties over and above that with which they part in the course of its performance; otherwise there would soon be an end of contracting. And it seems to us, upon general principles of justice, that, if he who, by repudiation, has prevented performance, asserts that the other party would not even have regained his outlay, the wrongdoer ought at least to be put upon his proof.”

The same principle is expressed in Restatement of Contracts, § 333 (d):

“If full performance would have resulted in a net loss to the plaintiff, the amount of this loss must be deducted, the burden of proof being on the defendant.”

Appellant’s repudiation of an essential feature of the contract in question deprived appellee of the expectation interest he had bargained for as the exclusive distributor of appellant’s product in the District of Columbia and most of Maryland. At the same time, that breach is a major factor in appellee’s inability to show with reasonable certainty the amount of profit he would have derived as an exclusive distributor. The early termination of the arrangement left no experience upon which to make a measurement of its profitability, as has long been required by the courts. St. Paul at Chase Corp. v. Manufacturers Life Insurance Co., 262 Md. 192, 244, 278 A. 2d 12, cert. denied, 404 U. S. 857, 92 S. Ct. 104, 30 L.Ed.2d 98 (1971); Winslow Elevator Co. v. Hoffman, 107 Md. 621, 69 A. 394 (1908). Thus, we have a situation in which any measure of gains prevented on account of the breach would be only speculative. We therefore turn to an examination of appellee’s reliance interest to determine what, if anything, he is entitled to recover.

Mr. Pulford testified that from January 1,1977, to April 28, 1977, he did not work; that his gross income from employment in 1976 was $22,200; and that he obtained free medical insurance from his prior employer valued at $104 per month. Additionally, after selling advertisements for the 5 or 6 days, he expected to sell 4,000 Diálisis a month and earn a net profit of $1,600 per thousand Dialists per month as a distributor. In addition to the $2,500 he paid appellant for the distributorship he expended approximately $57.00 in business set-up expenses, $99.52 for a telephone installation and $437.00 for office furniture to be used in his home. He returned to the customers the $531.35 which he had collected from them for Dialist advertisements.

The trial judge awarded: $697.54 for the incidental out-of-pocket expenses, the $2,500 paid by appellee to appellant; $3,700 for two months’ salary in the occupation which appellee gave up in order to embark upon the distributorship; $300, which represents the court’s finding of the value of medical and dental insurance paid for by appellee’s former employer and likewise given up when appellee resigned from his former position.

As appellant does not mount a specific attack against the first or second figures mentioned above, the only sums which require discussion are the last two. The precise question presented by the award of those sums is whether recovery of appellee’s reliance interest may include a figure representing salary which was foregone in order to carry out the contract. We note at the outset that while such a loss may in some cases be too remote for recovery there is no such problem here. The evidence is clear that appellant was on notice, expected, and urged .the appellee to resign his then current occupation in order to engage full time in the Dialist distributorship. We consider this to be sufficient notice of special circumstances to bring the potential for such loss within the contemplation of the parties.

The authorities discussed above examine a party’s reliance interest in terms of out-of-pocket expenditures or outlays made in preparation for, or in part performance of, the contract. These terms imply that the plaintiff in such a case is at least entitled to recover cash or other objects of value with which he has parted. The forfeiture of an occupation in which one earns a steady compensation does not fit neatly within those terms. Nevertheless, we conclude that giving up one’s livelihood in reliance on, in preparation for, and performance of, a contractual obligation can be as real a detriment as out-of-pocket expenditures. Under the circumstances of this case, where (1) the detriment was incurred in reliance on the contract; (2) the promisor was aware of, and expected, the promisee’s resignation from his former employment; and (3) the value of that which has been given up has been clearly proved; the lost salary is an element of appellee’s reliance interest which may be recovered. While no prior Maryland case has addressed this particular point, our holding is not unprecedented. See Runyan v. Pacific Air Industries, Inc., 2 Cal. 3d 304, 85 Cal. Rptr. 138, 466 P. 2d 682, 41 A.L.R.3d 1422 (1970); Hough v. Jay-Dee Realty and Investment, Inc., 401 S.W.2d 545 (Mo. App. 1966); Shaboub v. De Lacie, 59 S.W.2d 954 (Tex. Ct. Civ. App. 1933). Each of those cases permitted the recovery of employment compensation foregone by the plaintiff in order to carry out a contract which was later breached by the defendant.

As to damages awarded for the loss of insurance benefits, we conclude that participation in a program of health insurance for which the employer pays may be properly considered a part of an employee’s compensation. As such, it may be recovered along with other elements of compensation. The argument that health insurance expenses are too remote to be recoverable is not well taken. It is certainly reasonable to expect that under today’s employment practices an employee’s compensation package will include such benefits. As we have already said, under the circumstances of this case it was within the contemplation of the parties that appellee would give up his occupation and its attendant compensation in order to carry out his part of the contract.

Expenditures made in reliance on the contract are ordinarily recoverable only when made prior to the non-defaulting party’s awareness of the breach. This rule is based on the theory that after a party acquires knowledge of the breach it is no longer reasonable for him to incur such expenses. 5 Corbin, supra, § 1031; Restatement of Contracts, §§ 333, Comment a, 336. In this case appellee began work under the contract on the first working day of January, 1977. He became aware of the breach within a matter of days. The trial court awarded reliance damages in the form of lost compensation for a period of two months. We see no abuse of discretion in that award because the relationship between the parties was not dissolved until late February. Until that time it was possible that their differences would be resolved. We note that it was not until March 2, 1977 that appellee refunded the amounts previously received from advertising customers. During this entire period appellant was attempting to persuade appellee to stay with the distributorship.

Finally, we see no error in the court’s award of prejudgment interest. This was a matter within the discretion of the judge. Certain-Teed Products Corp. v. Goslee Roofing and Sheet Metal, Inc., 26 Md. App. 452, 339 A. 2d 302, cert. denied, 276 Md. 739 (1975).

Judgment affirmed.

Appellant to pay the costs.

      . Neither party complied with Md. Code, Cts. & Jud. Proc. Art., § 10-504 giving notice of an intention to rely on Texas law. We, therefore, as did the trial judge, apply Maryland law. Frericks v. General Motors Corp., 274 Md. 288, 336 A. 2d 118 (1975).

      . 15 U.S.C. § 1. United States v. Arnold, Schwinn & Co., 388 U. S. 365, 87 S. Ct. 1856, 18 L.Ed.2d 1249 (1967) supports this latter statement, but the case was overruled by Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36, 97 S. Ct. 2549, 53 L.Ed.2d 568 (1977).

      . In order to avoid confusion we deem it advisable to discuss and clarify this aspect of the lower court’s ruling. The record shows that there was no rescission in the technical sense. The rescission of a contract involves voiding it ab initio and returning the parties to the status quo ante. Ryan v. Brady, 34 Md. App. 41, 366 A. 2d 745 (1976). The usual way in which this is accomplished is through the mutual consent of the parties. Glen Alden Corp. v. Duvall, 240 Md. 405, 215 A. 2d 155 (1965). It involves a voluntary abrogation of the contract and the return of benefits conferred. No such mutual abrogation of the contract took place in this case. Appellant never acquiesced in appellee’s demands for the return of his money; appellant’s letter of March 10 was not an acceptance of appellee’s demand for rescission but rather a purported termination of the contract, according to its terms, for appellee’s failure to purchase the required number of Dialists.
      Rescission of a contract may also be accomplished through an action brought for that purpose. Ryan v. Brady, supra. The present case is an action for damages based upon breach of the contract and no relief in the nature of rescission is sought. We construe this aspect of the court’s opinion as meaning that appellee had a right to discontinue further performance of the contract. See Glen Alden Corp. v. Duvall, supra at 428-31.

      . The recovery of expenditures in a case such as this may be reduced by the amount of benefits which a party retains as a result of those expenditures. See 11 Williston, Contracts, § 1363A (3d. ed. 1968); Restatement of Contracts, supra, § 333(c). Here the record shows that a portion of appellee’s expenses consisted of the purchase of office furniture. It may well be that appellee was able to salvage some amount upon resale of that furniture or benefit from its use, but the record is silent on this issue. As the appellant has not addressed it, neither shall we.


author: Moore, J.,

text:
    ZULA V. GALLAHER et al. v. TRUSTEES OF THE CHERRY HILL METHODIST EPISCOPAL CHURCH OF CHERRY HILL, INCORPORATED
    [No. 659,
    September Term, 1978.]

      Decided April 12, 1979.

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

      David H. Parrack, with whom were Bratton, Clower & Parrack on the brief, for appellants.

      O. Robert Lidums for appellees.
   Moore, J.,

delivered the opinion of the Court.

Because the trustees of a church cemetery inadvertently assigned the same burial plot to two different families, this appeal is before us. At issue is whether the chancellor correctly held that the widow of the second purchaser was required to disinter her husband’s remains. We are unable to conclude that there was error.

I

In the distant past, The Cherry Hill Methodist Episcopal Church of Cherry Hill, Elkton, Maryland, devoted a portion of its property to cemetery use. About seventy years ago, Lot 4, Row H, containing four spaces, was acquired by Mrs. Koelig, the mother of one of the respondents below, J. Oliver Koelig. She purchased it for $12 and was given a handwritten receipt. Some time in the 1930’s, Mrs. Koelig informed her son that the lot would be his provided he assumed the cost for perpetual care and cornerstones. On July 22, 1945, the son entered into a perpetual care agreement with the Trustees of the Church, in consideration of a payment of $50. According to Mr. Koelig, now 65, his mother is deceased and is buried in Newark, Delaware. The record does not disclose Mr. Koelig’s place of residence but he testified that annually, at Eastertime, he made visits to the graves of his grandparents, aunts, uncles and cousins at Cherry Hill, and also viewed the gravesite he had acquired through his mother. “It is all of our relatives right around that circle,” he testified, “all of the Jaquettes. My mother was a Jaquette from Elkton.” At some point in time, four metal markers with the letter “K” were installed.

Precisely how the appellants in this case could have acquired the same four spaces, is shrouded in mystery. The fact of the matter is, however, that a mistake was made some time before the year 1960, when The Honorable H. Kenneth Mackey, now a member of the Circuit Court for Cecil County, became secretary of the Board of Trustees and the Trustee primarily responsible for the cemetery. When he assumed that position, an undated map of the cemetery showed the lot in controversy to be available for sale. This was erroneous. Mr. Koelig had never resold the lot to the Trustees, as the bylaws required, in the event of the relinquishment of a burial place. The origin of the error could not be explained.

Another of the respondents below, Ella Cato, the sister of Robert Gallaher, while on jury duty in the Circuit Court for Cecil County, in November 1974, expressed her interest in the acquisition of a burial lot to Judge Mackey’s secretary, Mrs. Joy. The latter handled the sales and transfers of cemetery lots which averaged between six to ten per year. Joy exhibited to Cato a map of the cemetery. If a space had been sold, the owner’s name was printed on the map; if no name appeared on a particular lot, it was for sale. The space representing Lot 4, Row H was blank. Mrs. Joy informed Mrs. Cato that a family named Koelig had previously owned the lot but since the space on the map was blank they must have transferred it back to the cemetery.

Mrs. Cato made a $100 down payment toward the purchase of the south one-half of Lot 4, Row H, consisting of two burial spaces. She testified that she selected this particular lot because it was in close proximity to the graves of her grandparents, father, and two brothers. Her mother, she said, was also to be buried in the same cemetery but the site was not disclosed. The record does not disclose whether she was still married at the time of the proceedings below nor the existence of any children. Mrs. Cato made periodic payments toward the purchase price and received a deed for the lot on February 5, 1976.

Several days after her original purchase in 1974, Mrs. Cato’s brother, Robert Gallaher, purchased the north one-half of Lot 4, Row H, consisting of the remaining two spaces. He also purchased three other spaces elsewhere in the cemetery. In August 1976, Robert Gallaher died. His widow, the appellant Zula V. Gallaher, testified that at the time of his death the funeral director, Donald Hicks, who was also a member of the Board of Trustees of the Church and in charge of the cemetery, was informed of the Gallahers’ burial rights in the north one-half section of Lot 4, Row H; and Mr. Gallaher was interred in one of the two spaces. Mrs. Cato testified that she had been in communication with Mr. Hicks shortly after the purchase of the lot when she discovered, on a visit to the cemetery, that there were cornerstones on the outer boundaries with the initial “K.” Mr. Hicks informed her at that time that they were the cornerstones of the former owners by the name of Koelig and that he would have them removed. It does not appear, from the record, that this was done.

During his Easter visit to the cemetery in 1977, Mr. Koelig discovered the interment. Understandably disturbed, he communicated with Mrs. Gallaher and her sister-in-law, Mrs. Cato, and requested that the remains of Mr. Gallaher be removed. When they refused, he conferred with Judge Mackey. The Trustees subsequently made compromise offers to both the appellants and Mr. Koelig of similar burial plots or, in the alternative, monetary settlements. In the case of Mrs. Gallaher, the proposed settlement included the payment of all expenses in connection with her husband’s disinterment and reburial. The offers were not accepted.

Unable to resolve the unfortunate impasse, the Trustees filed a declaratory judgment action, in equity, in the Circuit Court for Cecil County. It was prayed that the court declare, “which of the Respondents has the right and privilege to use Lot 4, Row H for burial purposes and... the rights and duties of each of the parties....” The named respondents were Mrs. Cato and Mrs. Gallaher and Mr. J. Oliver Koelig.

The petition came on for hearing before Judge K. Thomas Everngam of the Circuit Court for Caroline County, specially assigned. Testimony was received from the respondents and from Judge Mackey and Mr. Hicks. Subsequently, the court filed a comprehensive Memorandum Opinion and Order “granting the declaratory judgment and other relief.” After a discussion and analysis of the facts and the applicable law, the court concluded that “a reason of substance,” in the words of Mr. Justice Cardozo, in Yome v. Gorman, 152 N. E. 126, 129 (N. Y. 1926), required the disinterment of Mr. Gallaher’s body and its removal to a new location. The court also concluded that the respondent, Mr. Koelig, was the “legal and equitable owner of the subject lot for burial purposes.”

In his Order, the chancellor specifically held that: (1) Mr. Koelig was “entitled to the full and free use and occupancy of the entire Lot No. 4, in Row H ... subject to the benefit, limitations and restrictions contained in the receipts and deed”; and that the Trustees should execute and deliver a confirmatory deed to him; (2) Mrs. Cato and Mrs. Gallaher had no legal or equitable interest in the lot and were “directed to remove or cause to be removed the vault in one of said grave spaces (which contains the casket and body of Robert Gallaher) within thirty days” of the final order; and that the cemetery deeds to them were “null and void”; (3) the Trustees of the Church were to offer to respondents, Cato and Gallaher, “comparable burial spaces in any unsold part of said Cherry Hill Cemetery of their choice without further charge”; (4) payment by the Trustees of “all reasonable expenses for opening and closing the old and new graves, the disinterment, moving, reinterment, and any other reasonable expenses connected with [the] removal of the vault containing the remains of Robert Gallaher”; and (5) payments in the sum of $250 each by the Trustees to Mr. Koelig and, jointly, to Mrs. Cato and Mrs. Gallaher” as damages or recompense for their loss, inconvenience, expense and solace on account of this unfortunate occurrence.” It was also ordered that the court would retain jurisdiction of the proceedings and that if any supplemental relief should become necessary, the court could consider and deal with it under the authority of Md. [Cts. & Jud. Proc.] Code Ann. § 3-412 (1974).

Following entry of the above Order, appellants Cato and Gallaher filed a petition for rehearing. Judge Everngam promptly heard the petitioners on June 22,1978. No additional testimony was offered. The court, however, heard further argument from counsel and, with commendable diligence, filed a supplemental Opinion and Order on June 26,1978. The request for a change in the original adjudication dated May 31, 1978 was denied. In his supplemental opinion, the chancellor explained in the following language why no alteration of his original determination of the controversy was indicated:

“We believe that we came to the proper decision in our original Memorandum. We believe also we are. as sensitive as any person ‘to all those promptings and emotions that men and women hold for sacred in the disposition of the dead.’ Yome v. Gorman, Supra. We agree as was stated in Currier v. Woodlawn Cemetery (Court of Appeals of New York), 90 N.E.(2d) 18, 21 A.L.R.(2d) 465 (1949) that ‘the quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned.’
However, (under the particular facts of this case) where Mrs. Koelig purchased this lot almost 60 years ago (February 1909) and her son J. Oliver Koelig beginning in 1945 paid for perpetual care and in 1948 paid for and placed four cornerstones to mark the boundaries of the lot, and continuously through the past several decades the mother and son visited the burial lot regularly and correctly relied on their four written receipts as evidence of title, and have done nothing to create the wrongful recent resale of their lot or the resulting mistaken burial of a stranger therein, we believe that equity should not vitiate all that and strip them of their title and use of the burial lot. There must be some stability of title to a burial lot in these circumstances. The Koeligs (mother and son) have been diligent in protecting their rights and not guilty of laches. We feel under the circumstances that the removal of the unopened vault and casket containing the body of Mr. Gallaher (recently interred) to another lot will not be unduly insensitive or violative of the sentiment of all civilized people regarding the resting place of the dead as hallowed ground nor of the proper respect with which we all hold the same.
While we have no indication that Mrs. Cato and Mrs. Gallaher will want to do otherwise than to choose another lot in this pleasant country church cemetery in which to reinter the body, if they should elect to want to purchase a similar burial lot and reinter the body in another cemetery at the reasonable cost of the Trustees, this can be readily accomplished____”

II

Appellants’ sole contention on appeal is that the chancellor erred “in refusing to apply the doctrine of bona fide purchaser” to the facts presented. This case is one of first impression in Maryland and, in our judgment, even if that doctrine were applicable under the facts of this case — a question we do not decide — the adoption of such a principle would constitute too simplistic a solution to a sensitive and complex problem. Furthermore, it would establish, by judicial fiat, a rule which is unsupported in principle or authority.

At the outset, we note that the purchaser of a cemetery lot does not acquire a fee simple interest. Rather, he obtains a qualified property right or estate that is more in the nature of an easement, license, or privilege for the exclusive use of the lot for burial purposes so long as the property remains a cemetery. As Judge Prescott stated for the Court of Appeals in Diffendall v. Diffendall, 239 Md. 32, 36, 209 A. 2d 914 (1965):

“[TJhrough the ages, all civilized peoples have considered the final resting place of their dead as hallowed and sacred ground. Hence the Courts and legislative bodies have almost universally recognized that the ‘property’ or ‘estate’ which one acquires when he purchases a cemetery lot or a crypt is a ‘qualified’ property or estate. It is generally referred to, even though conveyed by a deed absolute in form, as an easement, privilege, or license for the sole purpose of sepulture as long as the property remains a cemetery. Partridge v. First Ind. Church, 39 Md. 631; Rayner v. Nugent, 60 Md. 515. And such estates are generally not held for the purpose of barter or sale; consequently, they seldom have any commercial connotation.” (Emphasis added.)

There is universal recognition of a principle which proceeds from Judge Prescott’s above emphasized premise, “that the repose of the departed, [is] not lightly to be disturbed.” Currier v. Woodlawn Cemetery, 90 N.E.2d 18, 19 (N. Y. 1949). Hence, it is essential to distinguish between controversies over ownership or rights of burial in ground not containing any mortal remains and those where interment has occurred. In the first situation, the question of title and ownership may be of signal importance. Indeed, there is a persuasive suggestion from an authoritative source that title may be the sole consideration. Evergreen Cemetery Association, Inc. v. Jurgensen, 309 N.Y.S.2d 847, 849 (App. Div. 1970). However, where disinterment of a body is at issue, equitable procedures and principles necessarily come into play and “the effect of legal title is merely a reason to be considered by the Court.” Id. The protective power of a court of equity is essential to achieve a proper balance of the considerations, usually delicate, affecting controversies between proponents and opponents of disinterment. Unterstitzung Verein v. Posner, 176 Md. 332, 4 A. 2d 743 (1939); Annot. 21 A.L.R.2d 472, 483 (1952).

The case of King v. Frame, 216 N. W. 630 (Iowa 1927), upon which appellants place reliance for the adoption of the bona fide purchaser doctrine, is strikingly similar on its facts to the instant case but it simply does not support appellants’ position. There, as here, an individual purchased a cemetery lot which, unknown to her, was already owned by another living person. She thereafter buried her husband in the lot. There were no markings nor any record of current ownership by the first owners, even though a State statute required such records. Although the court cast the “second owner” in the role of a bona fide purchaser, it is abundantly clear from the court’s opinion that it felt impelled to apply general equitable principles in resolving the controversy. Framing the issue in its opinion, the court said:

“The question therefore is whether in equity, in the light of all of these circumstances, the plaintiff was entitled to the relief granted him by the district court [disinterment]. We are disposed to hold that he was not.” (Emphasis added.)

Id. at 632. And at the conclusion of the opinion, the court stated:

“Taking all of these matters into consideration, we conclude that the equities of the case are with the defendant and that the body of John Elder should not be removed from said lot. ‘Let it rest in peace.’ ” (Emphasis added.)

Id. at 633.

We think it is apparent that while considerations of title — and therefore of the rights of a bona fide purchaser — are important, they are not the controlling factor to be considered in reaching a fair resolution of a controversy between claimants asserting burial rights in the same plot after a deceased relative has already been interred. If, as appellants contend, that doctrine should be held to be determinative, equitable considerations involved in the principle of preserving the repose of the dead and respecting the religious beliefs and sensibilities of the living, would be negated. Indeed, inequity would result in a case like the present if the first owner — rather than the second — had been the first to use the lot for an interment. Under the bona fide purchaser doctrine, the burial rights of the second owner could be paramount. Similarly, if interment had been made by neither party, equitable considerations might support the first owner but application of the doctrine would favor the second. In other words, the bona fide purchaser doctrine flatly applied could produce inequitable results.

We think the proper approach, in controversies between conflicting claimants to the same burial place, involving potential disinterment, is that reflected by the Court of Appeals of New York in Currier v. Woodlawn Cemetery, 90 N.E.2d 18 (1949), where Judge Fuld wrote for the court:

“ While the disposition of each case is dependent upon its own peculiar facts and circumstances and while no all-inclusive rule is possible, the courts, exercising a ‘benevolent discretion, ’ will be sensitive ‘to all those promptings and emotions that men and women hold for sacred in the disposition of their dead. ’ Yome v. Gorman, supra, 242 N.Y. at page 402, 152 N.E. at page 128.” (Emphasis added.)

Id. at 19.

Notwithstanding the limited scope of the issue raised by appellants, we feel there is properly before us the question whether the chancellor, having correctly applied the law, properly exercised his discretion in the adoption of the Order previously summarized. We do not say that our own determination of the controversy would have been the same. Neither, on the other hand, can we conclude that there was any abuse of discretion on the part of the lower court. It is readily apparent that the chancellor was profoundly impressed with the import of his decision, and its effect upon the sensibilities of the persons involved. From the recitals in his opinion and supplemental opinion, it is abundantly clear that the equities were found to lie with Mr. Koelig; that the Trustees of the Church cemetery were properly ordered to bear the financial responsibility for the unfortunate error; and that compassionate regard was shown for the widow and sister of Robert Gallaher. In addition to the provisions made for the appellants in the Order, the chancellor had ascertained, by a personal inspection, that alternative sites were available in both the old and new parts of the cemetery.

We cannot say that the decree entered by Judge Everngam was “clearly erroneous,” or, indeed, that it was erroneous at all.

Judgment affirmed; costs to be paid by appellees.

      . In the most recent decision of the Court of Appeals on the subject of sepulture, the appeal was from a decree denying a widow the right to disinter her husband. Dougherty v. Mercantile-Safe Deposit and Trust Company, 282 Md. 617, 387 A. 2d 244 (1978). The facts and circumstances there are quite dissimilar.

      . Pertinent parts of the testimony of Mrs. Cato were, however, read at the court’s instance by the court reporter.

      . This doctrine, not defined in appellants’ brief, is basically that “every reasonable intendment should be made to support the titles of bona fide purchasers of real property, and that no equity can be any stronger than that of a purchaser who has put himself in peril by purchasing a title for a valuable consideration without notice of any defect in it.” 77 Am.Jur.2d, Vendor and Purchaser § 633 (1975). This protection would extend to a legal interest in real property such as an easement. See 2 Thompson, Real Property § 426 (1961); Annot., 124 A.L.R. 1254 (1940).

      . Terry v. Elmwood Cemetery, 307 F. Supp. 369, 374 (N.D. Ala. 1969); Smith and Gaston Funeral Directors, Inc. v. Dean, 80 So. 2d 227, 230-31 (Ala. 1955); Mannheimer v. Wolff, 187 N.E.2d 1, 4 (Ill. App. Ct. 1962); Brunton v. Roberts, 97 S.W.2d 413, 415 (Ky. Ct. App. 1936); Diffendall v. Diffendall, 239 Md. 32, 36, 209 A. 2d 914 (1965); Partridge v. First Independent Church, 39 Md. 631, 637 (1874); German Evangelical St. Marcus Congregation v. Archambault, 404 S.W.2d 705, 707 (Mo. 1966); Billings v. Paine, 319 S.W.2d 653, 656-57 (Mo. 1959); City of New York v. Washington Cemetery, 188 N.Y.S.2d 52, 54 (S. Ct. 1959); Evergreen-Washelli Memorial Park Co. v. Dept. of Revenue, 574 P. 2d 735, 736-37 (Wash. 1978); 1 Thompson, Real Property § 7 (1964); 3 Tiffany, The Law of Real Property % 774 (1939); 14 Am.Jur.2d Cemeteries § 25 (1964); 14 C.J.S. Cemeteries § 25 (1939).
      Once there is an interment on a lot, it becomes inalienable except by specific devise. Saulia v. Saulia, 302 N.Y.S.2d 775 (1969). In Re Turkish’s Estate, 265 N.Y.S.2d 888, 889 (Surr.Ct. 1965).

      . Maryland has no statute requiring the recordation of cemetery plots or the sales and transfers of individual lots. This statutory absence is not unusual. Because the conveyance of a cemetery lot is a rather unique property interest, many statutes do not adhere to the formalities of deeds and recordation. In Maryland, pursuant to Md. Ann. Code art. 23, § 165 (1973), “[a] certification [of ownership of a lot or crypt] under the seal of the cemetery or mausoleum corporation ... [has] the same effect as ... [an] executed, acknowledged, or recorded” real estate conveyance. See Md. Ann. Code art. 23, § 164 (Supp. 1978) (lots held for individual use not subject to debts of debtors); Diffendall v. Diffendall, 239 Md. 32, 36, 209 A. 2d 914 (1965) (cemetery lots seldom have commercial connotation and are not subject to debts of debtor); Billings v. Paine, 319 S.W.2d 653, 658 (Mo. 1959) (instrument conveying cemetery lot need not comply with formalities of a real estate deed); Saulia v. Saulia, 302 N.Y.S.2d 775, 779 (N.Y. 1969) (“the ordinary concepts of title, ownership, and devolution of title applicable to real property do not apply to cemetery plots”); Hughes v. Harden, 151 P. 2d 425, 427 (Okla. 1944) (oral permission sufficient to confer right to exclusive possession). See also 14 C.J.S. Cemeteries § 25 (1939) (in absence of statute a deed conveying cemetery lot is not constructive notice).

      . In a case where an appeal was taken from a judgment in favor of plaintiffs in an action to compel removal of bodies buried by mistake, the views of the Court of Appeals of Kentucky were expressed in the following language in Brunton v. Roberts, 97 S.W.2d 413 (Ky. 1936):
      “The natural desire of most of us that there shall forever be an uninterrupted repose of our own bodies, and a considerate regard for the sensibilities, reverence, and love of the kindred and friends of the deceased, demand that sepulchers shall not be violated except for compelling reasons. These tender sentiments are instincts of humanity written deep in the hearts of men, and cannot be ignored. The aversion to disturbance of his remains — it being an ordinary practice of the times to transfer bones from graves to the charnelhouse — doubtless originated the choice by Shakespeare of his own epitaph:
      “Good frend, for Jesus sake forbeare To digg the dust encloased heare; Bleste be the man that spares thes stones, And curst be he that moves my bones.”
      These considerations are not without weight. But justice must rise above sentiment, and it is the duty of the courts to apply the law when it is invoked. The circumstances of the case seem to warrant its application, the feelings of the parties to the contrary notwithstanding. The appellees are entitled under the law, as we have shown, to have the bodies removed and the unfortunate mistake corrected.”

        Id. at 416.


text:
    MAURICE W. COLEMAN et ux. v. COLUMBIA CREDIT COMPANY
    [No. 672,
    September Term, 1978.]

      Decided April 12, 1979.

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

      Arthur M. Wagman and Samuel C. Klein, with whom was Alan B. Moldawer on the brief, for appellants.

      D. Clifford Crook, III, with whom were Allen Jones, Jr., Craig S. Rice, Wilkes & Artis and Mclnerney, Layne, McCormick, Sullivan & Rice on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court for Montgomery County (McAuliffe, J.) granting summary judgment in favor of the appellee, Columbia Credit Company (Columbia). Appellants, Maurice W. and Luna Coleman, husband and wife, sued Columbia under a two-count declaration alleging breach of a construction contract and negligence. The lower court granted summary judgment as to the contract count on two alternative grounds: that it was barred by limitations; and that the matter in dispute had already been submitted to binding arbitration and an award had been made thereon, “so that an action at law may not now be maintained as to the same controversy.” As to the negligence count, the lower court found appellants’ pleading defective, stating “there are no facts sufficient in Law to support that action.”

Appellants’ claims arise from their dissatisfaction with Columbia’s efforts to control an erosion problem in the rear yard of their home. The record indicates that on February 23, 1972, appellants entered into a contract with Columbia for the purchase of a new house. Clause II of that contract provided, in pertinent part: “Seller agrees to make necessary repairs to rear bank to prevent erosion and replace missing earth and sod.” At the time of settlement on June 7, 1972, the repairs to the yard had not yet been made. As agreed in the original contract, the parties signed a “Builder’s Warranty” on June 9, 1972, in which they promised, inter alia, “to be bound by the compulsory arbitration provision of Tthe Suburban Maryland Home Builders Association (SMBHA)L” Still dissatisfied in late January, 1973, appellants filed a formal complaint with the SMBHA charging, among other things, that the necessary erosion control work in the back yard had not been performed. A hearing was held on February 20, 1973, before the Arbitration Board of the SMBHA. The Board ruled in favor of appellants in a decision dated March 2,1973, which stated, in pertinent part:

“Item #5 — Back yard erosion control work and resultant landscape restoration not completed. When weather permits, the builder is to contact the Montgomery County Erosion Control Department and complete the work in compliance with their standards.”

The Board’s decision further provided that the “corrective measures are to be completed within sixty days.”

It appears that in June or July, 1973, pursuant to the arbitration order, Columbia made certain repairs to appellants’ back yard. A letter dated July 9, 1973, from the Montgomery County Sediment Control Section to the Colemans indicated that an inspection of the property had “revealed no sediment control violations.” Appellants, however, experienced further erosion problems and continued to express their dissatisfaction to Columbia.

In late September, 1975, unusually heavy rains washed away a substantial portion of appellants’ yard. Columbia disclaimed liability for this severe erosion in a letter to appellants dated October 6,1975. As a result, appellants filed their declaration in the instant lawsuit on May 3, 1976, and an amended declaration on September 20, 1976. Summary judgment in favor of Columbia was granted on June 5,1978, for the reasons noted above.

It is quite plain from the record that the erosion problem in the back yard was one of the matters submitted to arbitration at the express request of appellants. It is also clear that this matter was considered by the arbitration association and was specifically addressed in the ensuing order. The work performed by Columbia in its attempt to comply with the order indicates that it too believed the proceeding to be binding and conclusive. Yet appellants now urge that the arbitration authority of the SMBHA was confined to the house itself and did not extend to “collateral matters” such as erosion control. Whatever merit this argument might have in a different setting, we regard it as a completely untenable position under the circumstances of this case, where it was at appellants’ behest that the erosion problem was submitted to arbitration.

The agreement on the part of both parties to submit this particular question of erosion control to the arbitration procedure, whether or not it would otherwise have been required by the underlying agreement to be so submitted, sufficed to trigger the application of the Maryland Uniform Arbitration Act, Courts & Judicial Proceedings Article, § 3-201, et seq. Under § 3-206 (a), the statute provides that written agreements to arbitrate are “valid,” “enforceable” and “irrevocable.” The Uniform Act further provides, inter alia, for the review and enforcement of arbitration orders for which jurisdiction is vested exclusively in the equity courts. See § 3-201 (b). Accordingly, appellants’ contract claim, which sought to litigate at law an issue which had already proceeded to arbitration and award, was not properly before the lower court. Because we believe that the trial judge was correct in granting summary judgment on this basis, we do not reach the limitations question.

We also agree with the lower court’s decision to grant summary judgment on the negligence count. The judge’s reasoning was set out as follows in an order dated June 5, 1978:

“Concerning the Second Count, sounding in Tort (negligence), the Court finds that there are no facts sufficient in Law to support this action. There is no allegation or fact present in this case which will support a finding of a breach of duty owed by Defendant to Plaintiffs other than non-performance or inadequate performance of contract, warranty or arbitration award. A new cause of action in Tort cannot be created simply by alleging that it is negligence to fail to perform on a promise, or pursuant to an arbitration award, and yet this is the sole factual and legal basis for Plaintiffs’ claim of negligence. See the interesting discussion of the relation between Tort and Contract actions in The Law of Torts, Prosser, 4th Ed., Sec. 92, p. 613, et seq.”

In the instant case, appellants’ negligence count stated, its entirety:

“The plaintiffs incorporate by reference paragraphs 1 and 2 of Count I. And the plaintiffs say that all damages complained of were caused solely by the negligence of the defendants and its failure to comply with the contract with the plaintiffs without negligence on the part of the plaintiffs thereunto contributing.”

Count I, referred to in the negligence count, alleged only a contractual duty and no new facts were alleged in Count II. It is well settled that to state a cause of action in negligence, a declaration must allege, with certainty and definiteness, facts and circumstances which adequately set forth a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from that breach. Bramble v. Thompson, 264 Md. 518, 520-21 (1972); Kight v. Bowman, 25 Md. App. 225, 229 (1975).

Here, appellants’ “Amended Declaration” failed to allege either a duty owed by Columbia or a breach of that duty. Rather, it merely asserted that all damages were caused by Columbia’s negligence and its failure to comply with the contract. We agree with the lower court that this type of pleading is fatally insufficient. Accordingly, we find that summary judgment was properly granted.

Judgment affirmed; costs to be paid by appellants.