author: Liss, J.,

text:
    SOUTHERN MARYLAND HOSPITAL CENTER et al. v. EDWARD M. CROUGH, INC.
    [No. 820,
    September Term, 1980.]

      Decided April 10, 1981.

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

      Warren M. Davison, with whom were Earle K. Shawe, Patrick M. Pilachowski and Shawe & Rosenthal on the brief, for appellants.

      Gregory J. Miner, with whom were Paul M. Rhodes, Craig B. Dunbar and Rhodes, Dunbar & Lomax, Chartered on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This case arises out of a petition to enforce an arbitration award filed by appellee, Edward M. Crough, Inc., in the Circuit Court for Prince George’s County. The award was rendered in a construction contract dispute between appellants, Southern Maryland Hospital Center, et al., and appellees. Appellants filed an answer to appellees’ petition, as well as a counterclaim seeking to have the arbitration award vacated or set aside pursuant to the provisions of Maryland Code, Uniform Arbitration Act, Section 3-201, et seq., of the Courts and Judicial Proceedings Article (1974, 1980 Repl. Vol.) Both parties filed cross-motions for summary judgment based upon the record of the proceedings before the American Arbitration Association’s panel of three arbitrators and applicable law, and on May 12, 1980 the Circuit Court for Prince George’s County (Melbourne, J.) denied appellants’ motion for summary judgment, upheld the arbitrators’ award, and granted appellees’ motion for summary judgment. Appellants thereafter filed this appeal on the grounds that the court below failed to apply properly the standards of Sections 3-224 (b) (1) and (3) of the Courts and Judicial Proceedings Article and controlling precedent. Appellants raise two questions to be determined by this appeal:

1. Did the trial court err in granting summary judgment confirming the arbitration award based upon issues presented and considered by the arbitration panel and the decision of the panel?

2. Did the court below err in granting summary judgment confirming the arbitration award in the light of the established standards of review of arbitration awards in Maryland?

The Facts

In May 1976, appellee Edward M. Crough, Inc., (hereinafter referred to as "Crough”) and Dr. Francis P. Chiaramonte entered into a "Construction Management Agreement” by which Crough agreed (a) to provide design consultation, including efficient scheduling of the work and limiting the costs of the construction of a 300 bed full service hospital in Prince George’s County, Maryland, and (b) to organize and direct the actual construction of the hospital. The agreement was supplemented by two American Institute of Architect (AIA) Forms (A201 and A201/SC) entitled, respectively, "General Conditions of the Contract for Construction” and "Supplementary Conditions of the Contract for Construction.” Crough’s fee for these services was contractually set at $334,520.

The contract contained a "Guaranteed Maximum Price” of $11.4 million. Crough’s owner and chief executive officer, Edward M. Crough, testified that his counsel reviewed the CM Agreement and Crough both had prior experience with such clauses and understood them.

Dr. Chiaramonte is the only general partner in the limited partnership which owns the appellant hospital and will hereafter be referred to as the "owner.” The owner testified that by entering into a CM Agreement containing the Guaranteed Maximum Price (hereafter, "GMP”), it was his intent to limit the cost of construction to a sum certain of $11.4 million.

Pursuant to its undertaking to perform this job at or below $11.4 million, Crough segregated the work into approximately 25 "line items” or "bid packages,” such as excavation, concrete work, mechanical, electrical, landscaping, etc. Crough estimated the cost of each of these bid packages, which were then let out for competitive bidding. After Crough awarded contracts based upon the bids received, a surplus of over $798,000 was generated from the difference between Crough’s bid package estimates and the actual contracts awarded. Stated another way, the projected cost of building the hospital was approximately $10.6 million at that point — well below the $11.4 million GMP, providing a "cushion” or "surplus” for the parties.

Even before the owner signed the CM Agreement, the parties were aware of a problem that the structural engineer was having with regard to some soil borings. As a result of ground conditions, the engineer advised changing the nature of the foundation, which had originally been designed to use "spread” footings. The CM Agreement was signed by the owner and the parties then discussed possible alternative foundations. Ultimately it was determined that construction could only proceed with a "mat” foundation, i.e., an approximately two foot-thick slab of concrete underlying a layer of sand and the building’s floor slab.

As a result, the original plans and specifications had to be changed to reflect the required mat foundation and the subcontractors, such as the excavator, whose contracts had already been awarded, were notified of the changes. Those subcontractors asked for and received additional funds to perform the changed work.

The foundation redesign affected not only the excavating bid package, but also a number of other items, such as concrete, mechanical and electrical work. Crough advised the owner that the increased costs caused by the mat foundation could easily be absorbed by the nearly $800,000 surplus.

Article 12 of the General Conditions Section of the CM Agreement sets forth the exclusive method for changing the GMP under the contract. It provides, in relevant part (at Sections 12.1.2 and 12.2.1), as follows:

12.1.2 A Change Order is a written order to the Contractor signed by the Owner and the Architect, issued after the execution of the Contract, authorizing a Change in the Work or an adjustment in the Contract Sum or the Contract Time. Alternatively, the Change Order may be signed by the Architect alone, provided he has written authority from the Owner for such procedure and that a copy of such written authority is furnished to the Contractor upon request. A Change Order may also be signed by the Contractor if he agrees to the adjustment in the Contract Sum or the Contract Time. The Contract Sum and the Contract Time may be changed only by Change Order.
12.2.1 If the Contractor wishes to make a claim for an increase in the Contract Sum, he shall give the Architect written notice thereof within twenty days after the occurrence of the event giving rise to such claim. This notice shall be given by the Contractor before proceeding to execute the Work, except in an emergency endangering life or property in which case the Contractor shall proceed in accordance with Subparagraph 10.3.1. No such claim shall be valid unless so made. If the Owner and the Contractor cannot agree on the amount of the adjustment in the Contract Sum, it shall be determined by the Architect. Any change in the Contract Sum resulting from such claim shall be authorized hy Change Order.

It is conceded that Crough neither prepared, nor requested anyone else to prepare, a change order during construction of the project, either for the mat foundation work or for any other work (including "extras,” which are the subject matter of this dispute). Nor did the owner’s architect prepare or request Crough to prepare a change order even though the architect did order and approve many of the changes proposed during the course of the construction of the project. It is clear from the record extract that the owner knowingly permitted non-compliance with the strict terms of the agreement providing the cost of completion of the project did not exceed the $11.4 million GMP.

The hospital was completed sometime in November of 1977, purportedly well within the confines of the $11.4 million GMP. In August of 1978, Crough submitted to the owner a bill for "extras” and thereby sought to recover costs in excess of the GMP.

The facts set forth above were presented to a Board of Arbitration in six days of hearing, following which voluminous briefs were filed by the parties. On February 8, 1980, the Board of Arbitration issued its award, in favor of Crough in the amount of $357,888.72 plus 8% interest.

Cross-motions for summary judgment were filed in the Circuit Court for Prince George’s County. Crough’s motion sought enforcement of the award, while the owner’s motion sought to have the award set aside. The court denied the owner’s motion and granted Crongh’s motion, upholding the Board of Arbitration’s decision. From this judgment, the owner appeals.

1. and 2.

The proceedings below established beyond dispute that both parties agreed to submit the issues raised in the appellee’s demand for arbitration to the arbitration panel for resolution. No issue has been raised contesting the jurisdiction or authority of the arbitration panel to decide the issues submitted. Arbitration is a "favored” process in Maryland where disputes are resolved privately by a tribunal rather than publicly by a court. Maryland Courts have consistently held that when the arbitration agreement is "clear and precise” as in this case any controversy arising out of the agreement or breach thereof shall be settled by the arbitration procedure where all issues must be sumitted, unless expressly and specifically excluded.

Appellant at the arbitration hearing presented evidence, examined and cross-examined witnesses and filed a post-hearing brief. Appellant raised the following issues to be decided: (1) whether the owner reasonably believed that the contract’s Guaranteed Maximum Price remained intact throughout the construction contract; (2) whether the contractor can recover for work done without securing a "change order” as defined in the parties’ contract; and (3) whether the owner ever waived or modified the contractual GMP.

Although no memorandum was filed by the arbitrators in explanation of their findings, it is clear that the parties raised the issue before the Board of the appellee’s entitlement to payment for the changed or extra work it performed. It is further clear that this issue was within the scope of the arbitration agreement and the arbitrators decided the issue favorably to the appellee in its unanimous award.

The Maryland Code (1976, 1980 Repl. Vol.) Section 3-224 (b) of the Courts and Judicial Proceedings Article sets out the grounds for vacating an arbitration award:

(b) Grounds. — The court shall vacate an award if:
(1) An award was procured by corruption, fraud, or other undue means; [or]
(3) The arbitrators exceeded their powers.

The threshold question before the court below was whether the Board of Arbitrators had the authority to grant the relief sought by appellee. In reviewing the determination of an arbitration panel it has been held that a mere error in the laws or failure on the part of the arbitrators to understand or apply the law will not justify judicial intervention, and the courts’ function in confirming or vacating a commercial award is "severely limited.” See Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1127 (3d Cir. 1969), and the cases cited therein. The same Court, in describing the exercise of judicial restraint over arbitrators’ decisions, said: "The interpretation of arbitrators must not be disturbed, as long as they are not in 'manifest disregard’ of the law. . . Id. at 1128; see also Wilko v. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L. Ed. 168 (1953). Furthermore, it has recently been held that the misapplication of certain rules of contract interpretation by arbitrators does not rise to the level of "manifest disregard of law.” Revere Copper and Brass, Inc. v. OPIC, Washington Daily Law Rptr., No. 79-1159 (D.C. Cir. Feb. 26, 1980).

Appellant contends that the trial judge was clearly erroneous in affirming the arbitration award in that it was based on a completely irrational interpretation of the contract between the parties. The standards for review of an arbitration award in Maryland were explicated by this Court in O-S Corporation v. Samuel A. Kroll, Inc., 29 Md. App. 406, 348 A.2d 870 (1975), where it was held:

We hold that when reviewing the fruits of an arbitrator’s award, a judge may withhold only such as were tainted by improbity or based on a completely irrational interpretation of the contract. We recognize the very limited extension of the reviewing court’s scope of review to include authority to vacate an award that is "completely irrational.” Statutory support for this is found not only in the fact that arbitrators "exceeded their powers” when they reach a completely irrational result, but also in the connotation of the words "undue means” in Sec. 3-224(b)(l). An award that is "completely irrational” is inferentially opprobrious, i.e., "[ejxpressing or carrying a sense of disgrace or contemptuous scorn,” causing it to be suspect in its conception. [29 Md. App. at 408-09.]

This Court in Kroll severely restricted the courts in reviewing an interpretation of a contract by arbitrators if that interpretation was supported by some rationality. The Court further stated, "We must judicially accept an arbitrary interpretation of a contract by an arbitrator.” Id., at 410.

Appellant argues that Kroll, supra, is four-square on point factually with the case at bar. We do not agree. Kroll involved an interpretation of the reimbursable wages provision of the contracts submitted for arbitration. The award was vacated on appeal as an irrational award on the ground that it allowed recovery for wages not actually paid by the contractor. This circumstance is substantially different from the factual situation in the instant case. The arbitration panel had before it evidence that even before the CM contract was signed substantial changes were required in the foundation of the building and that this required changes in the work to be done by the various subcontractors. In addition, the prices to be paid for the various packages prepared by the construction manager were materially affected by the change. It is significant that none of the parties found it necessary to comply with the elaborate change order procedure detailed in the contract. It is also clear from the record that appellant was aware of all changes in the scope of the contract work other than the foundation and that appellant was advised by appellee of the estimates of the potential increased costs caused by the required changes. There was no suggestion before the arbitration panel that the changes made were not required, that they were not performed in a workmanlike manner, or that the prices charged were not fair and reasonable. Appellant has, in effect, attempted to relitigate the issue of the interpretation of the change order provision of the CM contract which was fully litigated before the arbitration panel and decided adversely against appellant. In resolving this issue it is clear from our reading of the record that the panel made its interpretation on the basis of the testimony of the appellant (which clearly implied a waiver of the requirement of the furnishing of "change orders” under the contract) and the conduct of the parties, i.e., the owner, the owner’s architect and the contractor, during the performance of the contract.

Appellant has cited a series of cases which he contends establish that the failure to obtain written change orders required by a contract prevents a recovery for the costs of the changes made. The cases cited are: McNulty v. Keyser Office Bldg. Co., 112 Md. 638, 76 A. 1113 (1920); Williar v. Nagle, 109 Md. 75, 71 A. 427 (1908); Merritt v. Peninsular Construction Co., 91 Md. 453, A. 1013 (1900); Abbott v. Gatch, 13 Md. 314, 71 Am. Dec. 635 (1859); Baltimore Cemetery Co. v. Coburn, 7 Md. 202 (1854).

Not one of the cases cited involved an arbitration award, nor was there any evidence of either a waiver of the requirement of a written change order or of the owner’s promise to pay for changed work.

On the record before us, we conclude that the summary judgment in favor of the appellee was properly granted.

Judgment affirmed.

Costs to be paid by appellant.

      . See Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., 21 Md. App. 307, 320 A.2d 558 (1974), rev’d on other grounds, 274 Md. 307, 334 A.2d 526 (1975) where the Court said:
      The parties expect that the arbitrator’s competence and skill, based on his specialized knowledge and experience, will produce a judgment which is founded not only upon the literal meaning of the words appearing in the contract document itself, but also on their meaning in the context of the practices and customs associated with their use. Schreiber v. Pac. Coast Fire Ins. Co. [195 Md. 639, 75 A.2d 108 (1950).] Id. at 315-16.

      . See Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., supra; see also Nelley v. Mayor & City Council of Baltimore City, 224 Md. 1, 166 A.2d 234 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). With the passage of the Maryland Uniform Arbitration Act, Code (1957), Art. 7 —1965 Laws of Maryland, ch. 231 Sec. 2, a policy in favor of arbitration was formally established in Maryland including: suits to enforce arbitration, suits to compel arbitration, and suits to stay court action pending arbitration. See Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., supra.

      . The "complete irrationality” rule is derived from Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125 (3d Cir. 1972) which relied on the decision in Lentine v. Fundaro, 29 N.Y.2d 382, 328 N.Y.S.2d 418, 278 N.E.2d 633 (1972). In Lentine, the court said that even if the language in the agreement in question is unambiguous, an interpretation by the arbitrators to the contrary is not in excess of their powers as arbitrators are not bound by principles of substantive law (viz. the Statute of Frauds) or by rules of evidence (viz. the Parole Evidence Rule).


source: Caselaw Access Project

license: Public Domain

text:
    CHARLIE McNEILL v. MARYLAND INSURANCE GUARANTY ASSOCIATION
    [No. 931,
    September Term, 1980.]

      Decided April 10, 1981.

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

      Lee Gordon, with whom were Gordon & Goodman, P.A. on the brief, for appellant.

      Stanford H. Franklin, with whom were Rocklin, Franklin & Karlin on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellee, Maryland Insurance Guaranty Association, filed a declaratory judgment action in the Superior Court of Baltimore City seeking a determination of automobile liability coverage under an insurance policy issued by the bankrupt Maryland Indemnity Insurance Company (hereinafter MIIC) to its policyholder, Evelyn Watkins. Appellant, Charlie McNeill, answered the bill for declaratory judgment, and the parties agreed to submit the case on a stipulated statement of facts. That statement reads as follows:

On September 2, 1975, Maryland Indemnity Insurance Company issued Policy No. A58318 to Evelyn Watkins for a 1968 Dodge Coronet, Serial No. WP46F8A2379106. That policy was in effect on December 12, 1975.
On December 12,1975, Charlie McNeill could not start his motor vehicle; whereupon he requested his friend, Evelyn Watkins, to bring her car to his location so that he could "jump-start” or "hot-shot” his car. Evelyn Watkins authorized Edward Hill to take her car to the aid of Charlie McNeill and he did so.
Charlie McNeill connected the cables to the batteries of both cars and the Watkins car engine was running at all times, all at the explicit direction of Charlie McNeill. Charlie McNeill then took off one or more of the battery caps from the battery located in his vehicle. At this time, Edward Hill, who was not in any of the vehicles but was standing in the area as an observer, lit a match causing the battery in the McNeill vehicle to explode resulting in Charlie McNeill being seriously injured.

Negligence and the absence of contributory negligence are admitted and, therefore, are not at issue. The Maryland Insurance Guaranty Association, representing the bankrupt insurer Maryland Indemnity, has filed the Declaratory Judgment action seeking determination of whether coverage may be afforded on the above policy to the claimant McNeill.

At oral argument before this Court the panel of judges hearing this case inquired whether the jumper cables were connected to both cars at all times pertinent; i.e., whether the cables remained connected uninterruptedly from the time they were originally connected until the time the battery exploded. Counsel for the parties were unable to answer this question at argument. Several days later, however, a letter was received in which both parties stipulated that the answer to the query was "yes.” Furthermore, the letter (signed by both parties) represented to the panel:

Counsel also wish to bring to the Panel’s attention, a clarification on the role of the match in causing the battery to explode. Counsel would agree that the lighting of a match which has absolutely nothing to do with the use or operation of a motor vehicle caused the explosion and ... it is further necessary to point out that the lighting of the match caused an explosion not in the Watkins car, but in McNeill’s car. It was McNeill’s battery that exploded and it was caused by a match.
Counsel, of course, disagree as to whether appellant’s injuries given the factual situation in its totality, "arose out of . .. the use of the insured’s vehicle.”

We have accepted the added stipulation of the parties as an additional portion of the appellate record.

The Watkins vehicle was covered by the aforementioned policy which provided in pertinent part:

Coverage A — Bodily Injury Liability; ...
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. bodily injury, . . .
arising out of the ownership, maintenance or use of the owned automobile ...

The trial judge, after consideration of the agreed statement of facts and memoranda of law submitted by the parties, held that the injury sustained by appellant did not arise out of the "ownership, maintenance or use” of the Watkins automobile and that MIIC was not liable to appellant under the terms of the Watkins policy. From this judgment, McNeill appeals.

The sole issue to be determined by this appeal is whether the injury sustained by the appellant was caused by an accident arising out of the "ownership, maintenance or use” of the Watkins vehicle.

The standard adopted by the Court of Appeals in the interpretation of provisions of an insurance policy where the disputed provision is susceptible to more than one construction is that the provision must be "literally construed in order to promote ... recovery for innocent victims of motor vehicle accidents.” Pennsylvania National Mutual Casualty Insurance Co. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734 (1980). "Ownership, maintenance or use clauses” do not limit recovery solely to injuries that are caused by direct physical contact with the insured vehicle; nor is it necessary that the damages be directly sustained or inflicted by the operation of the motor vehicle. See also State Farm Mutual Automobile Insurance Co. v. Maryland Automobile Insurance Fund, 277 Md. 602, 356 A.2d 560 (1976); Elliott v. Jamestown Mutual Insurance Co., 27 Md. App. 566, 342 A.2d 319 (1975).

Appellant contends that it is sufficient to establish liability and coverage where there is a substantial nexus between the injury sustained and the use of the motor vehicle as contemplated by the insurance carrier and the insured.

Appellee argues that an automobile liability policy which provides coverage for accidents arising out of the "use” of a covered vehicle does not insure the owner of the vehicle unless it is shown that there is a causal connection between the use of the automobile and the accident, or the creation of the condition which caused the accident.

The Court of Appeals, in Frazier v. Unsatisfied Claim and Judgment Board, 262 Md. 115, 277 A.2d 57 (1971) had before it a factual situation in which a child of five years was a passenger in the rear seat of an open convertible vehicle which was being operated by the child’s mother. An unidentified vehicle proceeding in the opposite direction passed the convertible and a lighted firecracker was thrown from the unidentified vehicle into the rear seat of the convertible. Distracted by the occurrence, the mother lost control of her car and struck a tree, severely injuring her child. The trial court concluded as a matter of law that the injuries did not arise out of the ownership, maintenance and use of the unidentified automobile. In reversing the trial court, the Court of Appeals held:

8 Blashfield, Automobile Law & Practice § 317.1 at 5-6 (Lewis ed. 1966); 7 Appleman, Insurance Law & Practice § 4317 at 144-6 (1942) and an Annotation, 89 A.L.R.2d 150 would seem to support the proposition that whether an injury is or is not within the coverage provided by an automobile insurance policy may well turn on the question whether the use of an automobile is directly or merely incidentally causally connected with the injury, even though the automobile itself may not have proximately caused the injury. Compare, for example, National Indemnity Co. v. Ewing, 235 Md. 145, 200 A.2d 680 (1964) (recovery allowed plaintiff, who fell from insured’s car, and was injured while being escorted back to car on foot) and Mullen v. Hartford Accident & Indemnity Co., 287 Mass. 262, 191 N.E. 394 (1934) (injury sustained from slipping on oil leaking from car held to be within provisions of policy) with Commercial Union Ins. Co. of New York v. Hall, 246 F. Supp. 64 (E.D.S.C. 1965) (no liability to plaintiff, whose way was blocked by insured’s car and was then assaulted by insured) and Kraus v. Allstate Ins. Co., 258 F. Supp. 407 (W.D. Pa. 1966), aff'd, 379 F.2d 443 (3d Cir. 1967) (insurer not liable to pedestrians when insured detonated dynamite in his car). [262 Md. at 118.]

The proposition had previously been established in National Indemnity Co. v. Ewing, supra, where recovery was permitted by a plaintiff who had been thrown uninjured from the insured car but had subsequently sustained injury when the insured driver negligently escorted the plaintiff back to the car on foot by leading the plaintiff down the center of the road. The Court permitted recovery under the insurance policy which provided for compensation of injuries arising out of the "ownership, maintenance or use” of the automobile, where it held:

Language in automobile liability policies, identical to that in the case before us, has been construed by the courts of other states, and it has generally been held that, while the words import and require a showing of causal relationship, recovery is not limited by the strict rules developed in relation to direct and proximate cause. * * * The same rule was applied in Merchants Co. v. Hartford Accident & Indemnity Co., 188 So. 571, 572 (Miss.), where the injury was caused by poles negligently left in the road after the covered vehicle had been extricated from a ditch and had departed. The court said:
"Our conclusion, under a policy such as is here before us, is that where a dangerous situation causing injury is one which arose out of or had its source in, the use or operation of the automobile, the chain of responsibility must be deemed to possess the requisite articulation with the use or operation until broken by the intervention of some event which has no direct or substantial relation to the use or operation, — which is to say, that the event which breaks the chain, and which, therefore, would exclude liability under the automobile policy, must be an event which bears no direct or substantial relation to the use or operation; and until an event of the latter nature transpires the liability under the policy exists.” [235 Md. at 149-50.]

From our reading of the briefs submitted by the parties we find no appreciable dispute between the parties as to the applicable principles of law governing this case. Both sides concede that a causal relationship or connection must exist between an accident and the ownership, maintenance and use of the insured vehicle in order for coverage to be provided under the policy provision. They further agree that absent such a causal connection or relationship, recovery will be denied. See 89 A.L.R.2d 150. The problem arises as to the application of the law to the facts of the instant case.

Appellee relies heavily upon Plaxco v. United States Fidelity & Guaranty Co., 252 S.C. 437, 166 S.E.2d 799 (1969), where an action was also sought in declaratory relief. The issue in Plaxco was whether the use by an insured of his automobile battery to crank the engines of his airplane by connecting the batteries with jumper cables constituted a use of an automobile within the meaning of the automobile liability insurance policy providing coverage arising out of the ownership, maintenance or use of any automobile. In Plaxco, the plaintiff drove his automobile to the airport for the purpose of making a trip in his airplane. The plane battery was either dead or too weak to start the engine so he drove his automobile to the left wing and connected the batteries of the plane to the auto by use of a jumper cable. When this was done he entered the plane, started the engine and engaged the brakes and alighted to disconnect the jumper cables, leaving the airplane engine running. After the plaintiff disconnected one of the cables from the automobile battery, and while attempting to disconnect the other, the airplane brakes failed to hold and struck another aircraft. The court held that the accident did not result from the use of plaintiffs automobile, when it stated:

The accident in question did not result from the use of plaintiffs automobile. The only connection between the automobile and the airplane was the use of the automobile battery to start the airplane engine. This purpose had been completed when the airplane moved forward, after the brakes failed to hold. We find nothing in the facts or circumstances to show a causal connection between the use of the automobile battery as a source of power to start the airplane engine and the subsequent forward movement of the airplane. As stated by the trial judge, "the power source was coincidental only.” The facts show that the accident resulted from the use of the airplane and not the insured automobile. [252 S.C. at 441.]

We conclude that the facts in Plaxeo are distinguishable from the case at bar. The use of the Watkins vehicle was clearly a use which was or should have been contemplated and anticipated by the insurance carrier and the owner of the vehicle. It is not unusual that an insured might on occasion be required to use his vehicle to charge the battery of another vehicle. At the time the explosion took place, the Watkins vehicle was still being used in an activity permitted by her policy. The additional stipulation makes it clear that the Watkins vehicle was still attached by the jumper cables to McNeill’s vehicle at the time Watkins’ driver negligently threw the match. McNeill’s activity in unscrewing the battery caps was entirely consistent with an effort to determine whether the battery had sufficient fluid and charge to permit McNeill’s car to operate without being attached to the jumper cables. The lighting of the cigarette by Watkins’ driver was not an intervening or independent cause, as was the failure of the airplane brakes in Plaxco. We conclude that this case on its facts is governed by Merchants Co. v. Hartford Accident and Indemnity Co., 187 Miss. 301, 188 So. 571 (1939), where the Court held:

In examining the cited cases, it will be observed that some of them proceed as if the automobile liability policy had expressly required that the injury for which the insurer could be held must be the proximate result of the use of the automobile truck. And if the policy here before us contained that express language, it might be that liability under the St. Paul Company policy in the present case would be denied on the ground that the proximate cause of the injury was the technically separable fact of the failure to remove the poles from the road. But we are in accord with the ruling expressed in Panhandle Steel Products Co. v. Fidelity Union Cas. Co. [Tex. Civ. App., 23 S.W.2d 799] . . . that an insurance contract such as we have here does not require that the injury must be the proximate result, in the strict legal sense of that term, of a negligent act which happened in the actual use or operation of the truck; and, on the other hand, we would not assent to a contention that the policy liability would extend to something distinctly remote, although within the line of causation.
Our conclusion, under a policy such as is here before us, is that where a dangerous situation causing injury is one which arose out of or had its source in, the use or operation of the automobile, the chain of responsibility must be deemed to possess the requisite articulation with the use or operation until broken by the intervention of some event which has no direct or substantial relation to the use or operation, — which is to say, that the event which breaks the chain, and which, therefore, would exclude liability under the automobile policy, must be an event which bears no direct or substantial relation to the use or operation; and until an event of the latter nature transpires the liability under the policy exists. [188 So. at 572.]

Appellee would, in effect, have us adopt the strict rules of direct and proximate cause in order to deny coverage. This, in light of the opinions by the Court of Appeals which we have cited, we decline to do. Under the facts in this case we conclude that there was a causal relationship between the use of the Watkins vehicle to start McNeill’s automobile and that the explosion was caused by the careless throwing of the match by Watkins’ driver which ignited the fumes released when the battery caps were unscrewed. We find that at the time this occurred the Watkins vehicle was being "used” as contemplated by the Watkins liability insurance policy.

Judgment reversed, costs to be paid by appellee.

      . In fairness to the trial court we point out that the judge did not have before him the additional facts elicited by the query of the panel on appeal. We, of course, cannot speculate as to whether the additional information would have affected the trial court’s conclusion. We have concluded that we should not avail ourselves of the provisions of Maryland Rule 1071 which permits a remand to the trial court under these circumstances; rather, in the interest of judicial economy of time, we choose to dispose of the issue raised by this appeal.


author: Thompson, J.,

text:
    LARRY JESSE MYERS a/k/a Larry Jesse Myers-Bey v. STATE OF MARYLAND
    [No. 953,
    September Term, 1980.]

      Decided April 10, 1981.

      The cause was argued before Gilbert, C. J., and Thompson and Weant, JJ.

      James D. Skeen, Assigned Public Defender, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Barry Hamilton, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Larry Jesse Myers a/k/a Larry Jesse Myers-Bey, the appellant, was convicted in the Circuit Court for Montgomery County of armed robbery and related charges. Appellant was sentenced to a total of twenty-five years on the various convictions. On appeal the appellant contests the imposition of the mandatory sentence under Maryland’s enhanced punishment statute, Md. Ann. Code Art. 27, § 643B, the admissibility of certain evidence, and the sufficiency of the evidence.

FACTS

The testimony in this case dealt with two separate incidents that occurred on September 20, 1979. At approximately 10:15 on the morning of September 20, 1979 two men, one with a gun, entered the First National Bank of Maryland on Georgia Avenue in Wheaton, Maryland and in the presence of three bank tellers, Nellie Norris, John Wilson and Stacy Stirman, and a bank manager, Dennis J. Kleppick, took some money and ran out to their automobile in the parking lot. Later that day, two men, one of whom was identified as the appellant, attempted to force a Mr. Borokini and a Mr. Imoke to drive them to a hospital. A struggle ensued and the two men ran off.

SENTENCING

Appellant alleges that his enhanced sentence under Art. 27, § 643B (c) was improper for a number of reasons. We agree because of one of the reasons argued and therefore it is unnecessary to discuss the others. The appellant’s sentence was enhanced based upon two convictions for robberies in the District of Columbia. In Butler v. State, 46 Md. App. 317, 322-23, 416 A.2d 773 (1980), we held that an enhanced sentence imposed on the basis of a conviction for robbery in the District of Columbia was improper, saying:

"With regard to the District of Columbia robbery conviction, we are unable to determine from the record whether it is a proper predicate to support a § 643B (c) sentencing. Nothing before us indicates whether the robbery was indeed a crime of violence. In the District of Columbia, robbery is defined by statute as:
'Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery.’
"D.C. Code, Sec. 22-2901 (1973). Thus, as the State concedes, it appears that robbery in the District of Columbia may not be a crime of violence. The facts surrounding that conviction would have to be examined before this determination can be made.”

We further held in that case that it would be improper to remand for a new hearing and sentencing under § 643B, citing Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), which held that where an accused succeeds in obtaining a reversal of his criminal conviction because of insufficiency of the evidence he may not be retried because to do so would be in violation of his protection against double jeopardy.

In the instant case, the State also concedes that the record fails to show that the robberies committed by the appellant in the District of Columbia were crimes of violence but argues we should only vacate the sentence and remand for proper proof instead of simply remanding for a proper sentence not under the enhanced punishment statute. The state contends that in the recent case of United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980), the Court held the United States could appeal, without violating the double jeopardy clause of the federal constitution, the sentence imposed by a United States District Court in certain instances and that the appellate court could constitutionally impose a higher sentence. We think these two cases differ. In the instant case the state had its opportunity to present evidence but failed to produce sufficient evidence. The state does not come here as an appellant but only as an appellee. We think the situation is more like Burks v. United States than like United States v. DiFrancesco. Unlike the federal statute, the Maryland statute does not put the accused on notice that the government would have the right to appeal and increase the sentence. The analogy is more like sentence review provisions of Article 27 wherein a sentence may, under certain circumstances, be increased if the accused seeks to have his sentence reviewed. See, Md. Ann. Code Art. 27, § 645JC. We decline to overrule Butler v. State.

ADMISSIBILITY OF EVIDENCE

Appellant contends the trial court improperly admitted the testimony of Detective Jan Hutchinson concerning appellant’s behavior while he was being fingerprinted. When the appellant was asked to submit to the fingerprinting process he responded that if he was forced to remove his handcuffs he would "fight” and "if he had a gun [he] would shoot [Hutchinson].” In order to complete the process the appellant had to be forcibly restrained. The admissibility of this testimony was covered in Sewell v. State, 34 Md. App. 691, 695, 368 A.2d 1111, cert. denied, 280 Md. 734 (1977), in which this Court said:

"Various modes of conduct have been held to be tacit admissions or evidence of the consciousness of guilt. Among them are flight from justice, including resistance or concealment, Tasco v. State, 223 Md. 503, 165 A.2d 456;... and the refusal to provide an exemplar for comparison purposes. United States v. Franks, 511 F.2d 25 (6th Cir. 1975).”

Appellant contends that the trial court erred in admitting extra-judicial identifications. The issue was not raised by preliminary motion as required by Md. Rule 736 and there was no objection to the admission of the identifications at the trial. The question is therefore not before us. Md. Rule 1085.

SUFFICIENCY OF THE EVIDENCE

Finally, appellant complains that the evidence was insufficient to support his convictions. In making this argument he overlooks his identification by Nellie Louise Norris as one of the robbers. We have repeatedly held that the identification by a single eyewitness is sufficient to support a conviction. Metallo v. State, 10 Md. App. 76, 267 A.2d 804, cert. denied, 259 Md. 734 (1970).

Convictions affirmed.

Sentences vacated and case remanded for imposition of proper sentences.

Costs not reallocated pursuant to Maryland Rule 1082f


author: Morton, J.,

text:
    MICHAEL HILMAN SMITH v. STATE OF MARYLAND
    [No. 955,
    September Term, 1980.]

      Decided April 10, 1981.

    The cause was submitted on briefs to Morton, Moylan and Moore, JJ.
    Submitted by Alan H. Murrell, Public Defender, Richard T. Cremin and Thomas J. Bollinger, Assigned Public Defenders, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, F. Ford Loker, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Judith R. Catterton, Assistant State’s Attorney for Montgomery County, for appellee.
   Morton, J.,

delivered the opinion of the Court.

On April 10,1980, appellant was found guilty by a jury in the Circuit Court for Montgomery County of daytime housebreaking and sentenced to a term of five years.

In this appeal appellant contends that the trial judge committed reversible error in denying his motion to suppress evidence found in his automobile as a result of what the police defined as "an inventory search.”

Officer Cocuzzi of the Montgomery County Police Department testified that on December 3, 1979, he observed the appellant near a gold Pontiac parked on a 7-11 Store parking lot located in Montgomery County. He also saw a female alight from the car, join the appellant and both entered the store. Shortly thereafter, the officer observed appellant leave the store, alone, and approach the Pontiac. Officer Cocuzzi testified that he sought certain information from the appellant, who said he had no identification, but stated that the car belonged to him. He produced the keys to the car and gave them to the officer. According to the officer, he knew that appellant was wanted on an outstanding bench warrant and thereupon placed him under arrest. At that time the officer observed in the back of the car a movie projector, a stereo component set with two speakers and several leather coats.

The car was removed to a police station where the officer undertook "an inventory search” of the contents of the car. Prior to the search Officer Cocuzzi had a conversation with Corporal Jessee concerning the obtaining of a search warrant for the car. According to Corporal Jessee, he conferred with an assistant state’s attorney and was advised that there were no grounds to support the issuance of a warrant. The so-called inventory search was then conducted.

In Manalansan v. State, 45 Md. App. 667, 668 (1980), Judge Moylan, speaking for this Court, encapsulated the principles governing warrantless searches of automobiles, including an inventory search:

"We begin with the bedrock proposition that the inventorying of the contents of an automobile is not a constitutionally-permitted' investigative technique. A search for evidence within an automobile may only be undertaken pursuant to a validly issued search and seizure warrant, Coolidge v. New Hamp shire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); warrantlessly where there is probable cause to believe that the automobile contains evidence of crime coupled with an exigency excusing the warrant requirement, Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); warrantlessly where all or some of the automobile lies within the reach, lunge or grasp of an arrestee, Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), and Peterson v. State, 15 Md. App. 478, 292 A.2d 714; or warrantlessly pursuant to valid consent, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The inventorying of the contents of an automobile, on the other hand, serves a noninvestigative purpose.”

Thus we turn to an independent examination of the record (Herring v. State, 43 Md. App. 211 (1979)) to determine whether we should accept the police officer’s avowal that he conducted an inventory search or whether "in light of the information within the knowledge of the officer and the scope of the search, there is the strong suggestion that the search was actually a pretext concealing an investigatory police motive.”

Duncan and Smith v. State, 281 Md. 247, 261 (1977).

We start with the proposition that the officer had been advised that there were no grounds for the issuance of a search warrant, which he evidently decided was desirable. The officer had information that the appellant "probably was good for other burglaries.” The method of conducting the search sheds light on the officer’s purpose or motive in making the inventory. He removed the contents of a brown wallet, a brown document box, all the contents of a red pouch which was found in a brown purse and removed all the contents of a brown bag.

" In dealing with a similar situation in Waine v. State [37 Md. App. 222 (1977)], Judge Thompson pointed out that under United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (and now under Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L.Ed. 2d 235 (1979)), even probable cause coupled with exigency will not permit the police to open up suitcases, cartons and other containers. Even with probable cause, they are required to seize the suitcase or other container and keep it inviolate in the property room unless and until a warrant can be obtained. Judge Thompson there pointed out the irony of extending less protection to a citizen when his suitcase is being searched simply as an accommodation to himself and his property, saying at 37 Md. App. 234:

'As pointed out by Justice Powell in his concurring opinion in South Dakota v. Opperman [428 U.S. 364], 96 S.Ct. at 3102, the upholding of inventory searches does not provide a general license for the police to examine all the contents of the container.’ ” 45 Md. App. 673-674.

The meticulosity of such inventorying indicates to us that its purpose was not to protect and tabulate the contents of the car, but was a determined effort to secure incriminating evidence. As we said in Dixon v. State, 23 Md. App. 19, 38 (1974), "we cannot help but conclude that the officer’s resort to an inventory rationale was a case more of investigative opportunism than of genuine solicitude for personal property.”

Since the illegally seized evidence formed the major basis of appellant’s conviction, the judgment of conviction must be reversed. In view of our conclusion we do not reach his contention with reference to his proffered written jury instructions.

We are not unaware that the conclusion we have reached here may affect the prosecution of other cases against appellant and is probably viewed by the police with much frustration. It must always be borne in mind, however, that ours is a government of laws to be obeyed both by the enforcers of the law as well as the offenders.

Judgment reversed and case remanded for a new trial; costs are not reallocated as part of the judgment of this court pursuant to Maryland Rule 1082f


author: Couch, J.,

text:
    RICHARD L. STACK v. CAPITAL-GAZETTE NEWSPAPERS, INC.
    [No. 978,
    September Term, 1980.]

      Decided April 13, 1981.

      The cause was argued before Liss, Couch and Weant, JJ.

      Russell Jay Bennett for appellant.

      Peter F. Axelrad, with whom were Mary K. Farmer and Frank, Bernstein, Conaway & Goldman on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

This appeal involves the propriety of an order of the Circuit Court for Anne Arundel County by which it granted a motion for a directed verdict in favor of Capital-Gazette Newspapers, Inc. in a libel action brought by appellant, Richard L. Stack. Appellant was a Republican candidate in District 32 for the Maryland Senate in the November, 1978 general election, an election he lost to his Democratic opponent. The instant case was precipitated by the publishing of allegedly defamatory editorials by appellee October 26 and 27, 1978 in its newspapers, The Maryland Gazette and Evening Capital. After publication of the articles, and before the election, the appellant sued the appellee seeking damages. At the conclusion of all the evidence the trial judge directed a verdict in favor of appellee, and this appeal followed. A single issue is raised — did the trial judge err in granting appellee’s motion?

Since the appellant clearly was a public figure and the alleged defamatory statements were published by a newspaper, the right to recover is governed by New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). See also Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251 (1975), and A.S. Abell Co. v. Barnes, 258 Md. 56, 265 A.2d 207 (1961). In Kapiloff, then Chief Judge Orth, quoting from New York Times, stated:

"[T]he New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. .. .” Id. at 516.

This standard was expressly reaffirmed in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). Thus it seems settled that before appellant would be entitled to recover he had the burden of showing by clear and convincing evidence that the editorials were defamatory and that their publication was made either with knowledge of their falsity or with reckless disregard for the truth. Furthermore, as explicated in Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964), knowing falsity or reckless disregard for truth involves proof of a high degree of awareness of probable falsity such that a defendant entertained serious doubts as to the truth of his public action. See also St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968).

The Facts

The appellant was the Republican candidate in District 32 for the Maryland Senate in the November, 1978 general election. On October 26 and 27,1978, the appellee published the following editorial in its two newspapers, The Maryland Gazette and the Evening Capital:

"DISTRICT 32
THIS SENATE race in north county has been the biggest disappointment of any race in the area. What should have been a responsible battle between two intelligent men has turned into one of gutter politics — all because of the tactics of Republican challenger Richard Stack.
After the smoke of their primary battles had cleared, we expected a race between Stack and H. Erie Schafer, two intelligent, personable candidates who we thought would discuss the issues which would affect the people of this northern Anne Arundel County district.
Instead, Stack chose to take the low road — a la former Sen. Joseph McCarthy. He had been conducting a campaign of smears and innuendos in attempting to divide the district’s many Democrats.
Stack has refused to discuss the issues. While Schafer answered the many questionnaires sent out by more than 20 political organizations, Stack not only refused to answer the questions, he demanded that the organizations provide him with Schafer’s answers.
He insinuated that Schafer’s Democratic primary opponent, Michael Wagner, was supporting him in the general election. He even said that Schafer’s running mate, Del. Tyras Athey, was on his side.
Both allegations have proven to be false — as have many other things Stack has said in the campaign.
Schafer is a former county councilman and is on leave of absence from his county job as Glen Burnie urban renewal director. He certainly has more experience in government than Stack and from what we have seen in this race is a more responsible human being.
The overwhelming choice here is Schafer. Stack does not belong in public office.”

On November 1, 1978, appellant filed the instant suit alleging that the appellee published the above editorial "with knowledge that the statements were false, or with reckless disregard as to whether the statements were true or false”. Both compensatory and punitive damages were sought. Appellant offered evidence to the effect that he actively campaigned, attended numerous coffees where he discussed the issues of the campaign, debated his opponent on the issues twice, attended numerous candidates’ nights where he discussed the issues, conducted a walking door-to-door campaign, answered certain questionnaires submitted to him by newspapers or organizations not representing special interests, and submitted to interviews by members of the press. He conceded that he refused to answer endorsement questionnaires from groups or organizations which represented special interests. There was further evidence that, prior to the publishing of the editorial, appellant had attended an editorial interview with appellee’s representatives, reporters and editor of The Maryland Gazette, at which appellant stated that he had the support of Tyras Athey, his opponent’s ticket mate, and Michael Wagner, whom his opponent defeated in the Democratic primary. This statement was later denied by Athey and Wagner in an interview with appellee, although one of appellee’s reporters had written an article, published in The Maryland Gazette on October 23, 1978, in which both Athey and Wagner were reported to have done certain things which could be interpreted as one time support for appellant. This article, however, made clear that neither man presently supported Stack. There was also evidence that Edward D. Casey, appellee’s executive editor, had observed a political advertisement placed by appellant in The Maryland Gazette asking whether Schafer, appellant’s opponent, had "sold out,” which Casey felt unfairly suggested that Schafer had "given something away.” It was shown, however, that two of the three such advertisements were published after the editorial. Casey admitted on cross examination that his statement relative to "smears and innuendos” stemmed from the advertisements. He further explained that the basis for his statement about Wagner’s and Athey’s support as being false was their direct denial of support for Stack. He could not explain the statement that "many other things Stack has said in the campaign” have proven to be false.

The record reveals the following colloquy between appellant’s counsel and Mr. Casey, appellee’s executive editor:

"Q And I believe you stated in your editorial, both allegations are proven to be false with reference to the allegation of Wagner and Athey’s support — as have many other things that Stack has said in the campaign. What were the many other things that Mr. Stack said in his campaign that proved to be false?

MR. AXELRAD [Appellee’s attorney]: Objection.

COURT: Overrule it. You may answer.

A I don’t know exactly many other things.

Q Well, that’s what it says. It says, as have many other things.

A I’m not finished my answer. I would say that running advertisements, has Erie Schafer sold out. I mean, I think that is certainly a smear and an innuendo. And in my mind, at least, an untruth, because you can —

Q That’s not the question.

MR. AXELRAD: Well, wait a minute. That’s the answer.

COURT: Let him finish. You may finish, Mr. Casey.

A Could I have the question repeated again, please?

Q I asked you, what did you base the statement, as have many other things Stack has said in the campaign being proven to be false. What did you base that on?

A All right. Again, running advertisements like, has Mr. Schafer sold out. I believe that is, to me, a very damaging question. When you’re questioning the integrity, you’re questioning, has Mr. Schafer given something away. In return for what I don’t know, because he hadn’t voted on anything yet. Whether he’s trying to plant in the minds of the reader that on every vote that Mr. Schafer makes he’ll be giving something away to somebody, be promising somebody something. I think it’s a definite smear, a definite innuendo. I’m just trying to recall some other things here now. Oh, I would definitely say when he — he tells me to my face that he has the support of Mr. Athey and Mr. Wagner, and then less than 24 hours later these two people tell me to my face that in no way are they supporting him. I think — I’d have to say that’s an untruth. Q Okay. Now, I let you finish your answer, and I’ll go back and ask the question again. I prefaced the question when I asked it with both allegations have proven to be false. The two that you just gave me, with reference to Agner — with reference to Athey and Wagner. It also says, as have many other things Stack has said in the campaign. The other thing you said was an ad that asked a question, has Erie Schafer sold out. Now, I’m asking you, what other things he said in the campaign that proved to be false?

MR. AXELRAD: Objection. He’s already asked it.

COURT: Overrule it. You may answer, sir, if you haven’t already.

A I cannot be specific any more than I have been on something that happened a year and a half ago.

Q So, there —

A I can’t remember anything else at this point.”

The appellee contends there was no error by the trial court in granting the motion for a directed verdict because:

(1) there was a failure by appellant to show by clear and convincing evidence that the defendant acted with actual malice;
(2) the defendant’s editorial was constitutionally protected opinion and fair comment;
(3) there was no clear and convincing evidence that the editorial was false.

Further facts will be supplied as necessary in our discussion of the issue.

The Law

As stated above, appellant’s burden, to survive the motion for directed verdict, was to offer clear and convincing evidence that the editorial was false and made with actual malice. The law is settled that actual malice is the making of a statement with knowledge of its falsity or with reckless disregard for its truth or falsity. New York Times, supra; Berkey v. Delia, 287 Md. 302, 413 A.2d 170 (1980). As this Court said in Hohman v. A.S. Abell Co., 44 Md. App. 193, 407 A.2d 794 (1979):

"These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” Id. at 201. (Emphasis in original.)

Against this standard the evidence must be measured, along with the requirement that in ruling on appellee’s motion the trial judge must view the evidence in a light most favorable to the appellant. Boggs v. Citizens Bank & Trust Co., 32 Md. App. 500, 363 A.2d 247 (1976).

The Decision

The evidence before the Court, when viewed in a light most favorable to the appellant, was such that if believed by the trier of fact it could conclude there was "clear and convincing” evidence of a reckless disregard of the truth or falsity of some of the statements made in the editorial. With reference to the statement about refusing to answer certain questionnaires, Stack told appellee why he did not answer those from organizations representing special interests but did answer others. Appellant also had discussed issues on other occasions. With respect to the editorial statement about certain Democratic support, appellee obviously ignored the earlier news story in The Maryland Gazette which, to some extent, supported appellant’s statement. Appellee had no explanation for that portion of the editorial wherein Stack was accused of making many other statements in the campaign which had proven to be false. In short, at least so far as that part of the editorial which states "as have many other things Stack has said in the campaign” is concerned, it would appear that appellee could be found to have recklessly disregarded the truth or falsity of that statement; thus the fact finder could have found actual malice.

With regard to appellee’s argument that the editorial was protected because it was an opinion and fair comment, we need not tarry long. Parts of the editorial probably fall into this class but that portion stating, in effect, that appellant had lied on many other occasions during the campaign was, in our view, a statement of fact. In A. S. Abell Co. v. Kirby, 227 Md. 267, 176 A.2d 340 (1961), the Court of Appeals stated in part:

"The majority of the States (perhaps three-fourths) hold that the immune instances of public discussion are those limited to opinion, comment, and criticism, and do not embrace those in which there is any false assertion of defamatory fact. (Citations omitted.)
Maryland has consistently followed the majority rule — that defamatory misstatement of fact cannot be defended successfully as fair comment.” Id. at 273.

The Court went on to state, at 274:

"The distinction between 'fact’ and 'opinion,’ although theoretically and logically hard to draw, is usually reasonably determinable as a practical matter: Would an ordinary person, reading the matter complained of, be likely to understand it as an expression of the writer’s opinion or as a declaration of an existing fact? An opinion may be so stated as to raise directly the inference of a factual basis, and the defense of fair comment usually has been held not to cover an opinion so stated.”

Appellee also argues that there was no clear and convincing evidence that the editorial was untrue. Again, insofar as the statement therein about many other statements made by appellant during the campaign being false, we believe that appellant offered evidence which, if believed by the trier of fact, would show clearly that that statement was untrue. There was, for example, the testimony of a Mr. Farrell, one of appellee’s reporters assigned to cover the campaign in District 32, that he knew of no instance during the campaign where the appellant had lied.

What the ultimate outcome of a jury trial here will be is, of course, unknown, and we have no desire to be interpreted as indicating what the outcome should be. We do hold that appellant should have had his case go to the jury.

Judgment reversed; case remanded for a new trial.

Costs to abide the result.


author: Lowe, J.,

text:
    HENRY E. WEIL et al. v. TERRELL AIR CONDITIONING AND HEATING COMPANY et al.
    [No. 1005,
    September Term, 1980.]

      Decided April 13, 1981.

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

      Alfred J. Horvath, with whom was Ronald S. Goldberg on the brief, for appellants.

      Robert G. Blackford for appellees.
   Lowe, J.,

delivered the opinion of the Court.

I

Appealing from a verdict directed against them in the Circuit Court for Montgomery County because of insufficient proof of damages, appellants argue first that:

"The [appellants], through the testimony of Mr. and Mrs. Weil sufficiently established at least the fair market value of those items of their property totally destroyed so that the entry of a directed verdict against the plaintiffs at the close of their case on the ground that they had inadequately proven damages constitutes reversible error.”

We have carefully reviewed the record and found that it is impossible to determine what items were destroyed and what items were cleaned or repaired. Appellant would have us speculate upon that from the itemized numbers next to each item in a Proof of Loss form admitted solely for the purpose of proving appellants’ insurance carrier’s subrogation interest. The inferences are not available even if the document were admitted for purposes broad enough to include damages.

While it is true that Mr. Weil stated that the settlement as represented by that document was considered by him to be "fair and reasonable,” he preliminarily indicated that the figures represented on the paper prepared by an absentee adjuster were the subject of negotiation rather than indicative of evaluation of the property damaged or lost.

"A. Yes. There was a considerable dispute about whether or not certain items, for example, should be depreciated or whether they should not be depreciated. It was our contention with respect to the new pieces, particularly the furniture, that depreciation was not appropriate in the case since all these items were essentially new. The insurance company, of course, took a different view, so it was during the process of negotiation that we agreed on this figure.”

Notwithstanding the general statements that

"Everything in the home was essentially new..

and that the Weils

"had estimates made of all the damages and presented to the insurance company,”

one could only speculate that the figures represented on the adjuster’s Proof of Loss statement may have represented fair market value. The inference more likely is that they represented a compromise between a naturally inflated claim of worth to a deprived owner and an equally natural inclination of an insurer to escape recompense as penuriously as possible. The trial judge did not err in directing the verdict upon the failure of appellants properly to prove damages.

II

We are sorely tempted not to respond to appellants’ second question, not only because they have failed to include in the extract evidentiary documents upon which they rely (thus violating Md. Rule 1028 b), but also because there is a dearth of meaningful argument which violates the spirit if not the letter of Md. Rule 1031 c 5, indicating that the brief should contain argument in support of the position of appellant. On the other hand, appellee’s reply was equally innocuous, doing little more than pointing out the deficiencies in appellants’ "argument.” Neither apparently bothered to review the history of the applicable rule on motions for directed verdict (Md. Rule 552) so as to supply us with an indication of the intent of the Court of Appeals rule or its statutory progenitor. The relevant portions of Md. Rule 552 are subsections (a) and (b):

"Directed Verdict
a. Motion for — Grounds to be Stated.
In an action tried by a jury any party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues. Such motion shall state the grounds therefor. An objection on behalf of the adverse party to such motion shall be entered as of course,
b. Offer of Evidence After Denial — Effect.
A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right to do so, and to the same extent as if the motion had not been made, and in so doing he withdraws the motion.”

Appellants contend that:

"Because the [appellee] commenced its defense of the action by introducing documents in evidence during plaintiffs’ case in chief and should thus have been required to present all of its evidence before being procedurally entitled to a directed verdict, the Honorable H. Ralph Miller’s entry of a directed verdict against the plaintiffs following their case in chief constitutes reversible error.”

Their "argument” is that Md. Rule 552 a "suggests” that because appellee introduced two documents (presumably a release and a record of another case dismissal) while cross-examining one of the appellants during their case in chief, appellee was not entitled to a directed verdict. Appellants add that because Md. Rule 552 b provides that a movgnt withdraws his motion filed at the close of an opponent’s case by introducing evidence, "it would stand to reason that... a defendant waives his right to even ask for a directed verdict at the close of plaintiffs’ case if prior thereto he had introduced documents in evidence.”

Appellants’ "suggestion” and "reason” are without foundation, but because we are aware that some trial judges have the practice of warning defense counsel that upon introduction of evidence relating to an affirmative defense (as opposed to evidence attacking credibility of a witness), they lose the right to move for a directed verdict at the close of the plaintiffs case, we have gone somewhat into the history of Md. Rule 552 a and b.

Formerly the practice was to file a prayer asking the court to instruct the jury that the verdict must be for defendant because of a plaintiffs failure to prove his case or a material issue in the case. The prayer was permitted to be considered at the conclusion of the plaintiffs case or at the end of the entire case. Poe’s Pleading and Practice, Vol. Ill §§ 293, 295B (6th Ed. 1970). Under the local court rules in certain jurisdictions such as Baltimore City, if the defendant, at the close of the plaintiffs case submitted a prayer to take the case from the jury and such prayer were refused, the defendant could not offer testimony in defense, and the case went to the jury on the plaintiffs evidence alone. In 1894 the legislature sought to alleviate the harshness of requiring a defendant to elect between obtaining an uncertain result of an issue at law (sufficiency of the evidence) or, by abandoning it, purchasing the doubtful result of an issue of fact (to be raised by his plea). Chapter 516 of the Acts of 1894, codified initially as Md. Ann. Code art. 75, § 87A and subsequently as § 96 of the same article, provided:

"87A. If the defendant in any action at law in contract or in tort shall, at the close of the plaintiffs evidence, and before offering any evidence or defence, pray the court to instruct the jury that the plaintiff in such action has offered no evidence legally sufficient to entitle the plaintiff to recover, or a prayer to the same effect, and the court shall reject such prayer, the defendant shall not be precluded from offering evidence of defence, but any defendant in such action may offer evidence of defence as fully and to the same extent as though such prayer had not been offered.”

As often happens when a legislature attempts to modify the rigors of judicial procedure or vice versa, the statute opened the door to the possibility of an equally inequitable result. A defendant could submit his prayer on the legal sufficiency of the evidence offered by a plaintiff and if rejected submit his own evidence, perhaps supplying deficiencies in the plaintiffs testimony. Then even if the factfinder ruled against him based upon the whole case, he could "renew” his motion asking the court to review the case as it stood when plaintiff closed, for sufficiency of the evidence as a matter of law.

When faced with the dilemma presented by the statute, the Court of Appeals ruled in effect that once a defendant’s prayer (or motion) is rejected and he elects to afford himself of the statutory right to introduce evidence, the prayer (or motion) is treated as withdrawn. Barabasz v. Kabat, 91 Md. 53, 57 (1900). And while it may be "renewed” at the conclusion of all the evidence, at that juncture the sufficiency review must consider all of the evidence, of defendant as well as plaintiff, id. at 57-58, and the former ruling on the prayer following the close of plaintiffs case is no longer open for review. This was predicated upon a prior holding of the Court in Harvey v. Balto. & Ohio R.R. Co., 69 Md. 339, 343 (1888), which reasoned that "[t]he evidence offered by the defendant may, and often does, supply a defect in the proof of the plaintiff.”

That reasoning would not seem to indicate that the introduction of evidence during plaintiffs case would effect a waiver of the right to pray or move for a directed verdict at the conclusion of plaintiffs case; however, we must not overlook the fact that the statutory right to pray for directed verdict did not arise for defendants until

"the close of the plaintiffs case, and before offering any evidence or defence....”

While that language seems to provide a condition precedent as to time for offering the prayer (or filing the motion) for a directed verdict, it does not. It is a condition precedent for the introduction of evidence upon rejection of such prayer or motion. Therein lies the primary weakness of appellants’ contention despite the precise language emphasized above upon which appellants might have relied had they looked that far.

"The Act has no relevance whatever to cases like the present one in which the Court grants the defendant’s prayer at the close of plaintiffs evidence. It is apparent from the contents of the Act that it relates solely to cases in which the Court rejects the defendant’s prayer offered at that stage of the trial and its purpose is to prevent the defendant whose prayer has been thus rejected from having the right of offering evidence in his own behalf because of having submitted the prayer as would have been the case before the passage of the Act.” Schwanteck v. Berner, 96 Md. 138, 143 (1902).

The practice evolving from that statute and the case law interpreting it was codified in the General Rules of Practice and Procedure as G.R.P.P.Pt. Three, III, Rule 4 (Directed Verdicts), with minor additions. See Explanatory Notes, Appendix, Md. Ann. Code (1947 Cum. Supp.). In 1941 that rule was recodified as Md. Rule 552 with but minimal change. We have no reason to believe that the codification of the law that had evolved, by statute and case interpretation, intended to change the Maryland practice relating to directed verdicts.

In summation we find that subsection (a) of Rule 552 establishes the appropriate procedural junctures at which time a motion for directed verdict will be entertained. Subsection (b) is predicated expressly and exclusively upon

"the event that the motion is not granted,”

just as its statutory progenitor related solely to the event that

"the court shall reject such prayer.”

See Schwanteck, supra. The clause in subsection (b) providing for the withdrawal of the motion upon introduction of evidence after the motion is rejected succinctly sets forth the holding of Barabasz and Harvey, guarding against a misuse of the statutory relief provided by the 1894 Act which is incorporated in that subsection.

One final observation is in order in light of the rule codification which incorporated the statute and its several judicial interpretations: We note that the legislature has never acted to contradict the views expressed. To the contrary, it indicated its satisfaction with that codification in the rules by repealing the 1894 Act in a housecleaning of its own. 1957 Md. Laws, Ch. 399. It may also be worth mentioning that whatever solace appellant may have found in the language of the 1894 Act authorizing defendants to submit the prayer (motion) only "before offering any evidence or defence,” is certainly no longer available. That language was pointedly omitted when the rule was first adopted by the Court of Appeals in 1941 and was lost to appellant upon the statute’s repeal in 1957, if not in 1941.

We should caution, however, that our opinion should not be overread. We have not addressed nor considered whether a trial judge, when exercising his discretion to take evidence out of the usual order, State v. Hepple, 279 Md. 265, 273 (1977), might predicate that discretionary exercise upon a defendant’s express waiver of a motion for directed verdict at the end of plaintiffs case. We note only that in this case, the judge below did not do so. In fact, his language indicates that upon granting the motion he had considered all of the evidence before the jury at the time and had found no adequate proof of damages. That clearly complies with the Harvey concept that a defendant’s evidence may supply a defect in the proof of plaintiff. See also Crean v. McMahon, 106 Md. 507, 525 (1907).

As indicated in part I, our review assures appellant of the validity of that observation. Although the record extract does not indicate that the missing documents were relevant to damages, if they were, it is appellant’s own fault that we did not review them as part of our sufficiency review.

Judgment affírmed.

Costs to be paid by appellants.


text:
    WILLIAM L. ADAMS v. STATE OF MARYLAND
    [No. 1015,
    September Term, 1980.J

      Decided April 13, 1981.

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

      George L. Russell, Jr., with whom was Kenneth L. Thompson on the brief, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A.

      Swisher, State’s Attorney for Baltimore City, and John Prevas, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Through an admission by the State we are informed that on or about September 24, 1979, William L. Adams was charged in the Criminal Court of Baltimore with:

"a single count of Conspiracy to Violate the lottery laws. The State further admits that Judge Perrott dismissed the charging document [on January 16, 1980] because Judge Karwacki did not sign the statement of charges and the summons; affixing his signature twice to the same document instead of once. The State further admits that when new summonses were filed, [the next day] three counts of Conspiracy were charged.”

Appellant conceded below that there was no animosity in the heart of the prosecutor giving rise to these increased charges so hard on the heels of his successful skirmish. He even concedes for purposes of argument that the State’s explanation of having detailed the charges out of an abundance of counts, not only against appellant but also against thirty-three co-defendants, may have had no relation at all to the temporary success appellant achieved by Judge Perrott’s technical dismissal. Pointing to Blackledge v. Perry, 417 U.S. 21 (1974) (which was predicated upon North Carolina v. Pearce, 395 U.S. 711 (1969)), he argues that where the circumstances create "an appearance of vindictiveness,” a "heavy burden” is thrust upon the State to demonstrate "that the increase in the number of charges against Appellant was not due to any vindictive motive.”

"Appellant [then] submits that the facts of this case and the coincidence of events presented 'such overwhelming circumstantial evidence’ that the additional charges were filed in retaliation for Appellant’s successful challenge to the legality of the original charging document and thus creates such a strong presumption of vindictive motive and such a substantial possibility of vindictiveness as to be sufficient to establish per se a violation of due process.”

An exhaustive briefing of cases throughout the country is referred to in support of his argument, the most factually apposite case being United States v. D’Alo, 486 F. Supp. 954 (D.R.I. 1980).

The State, on the other hand, in an equally well-done brief, dislodges a few authorities relied upon by appellant and argues that the standard igniting an assessment of prosecutorial conduct is not the mere "appearance of vindictiveness” but rather "a realistic likelihood of vindictiveness.” The State provides a succinct synopsis of most of the cases.

"A synthesis of these decisions reveals three distinct approaches to the issue of prosecutorial vindictiveness. See United States v. Andrews, 633 F.2d 449, 453 n. 4 (6th Cir. 1980). The Ninth Circuit decisions, upon which Appellant heavily relies, hold that where a prosecutor either substitutes a more severe charge or adds on charges after a defendant exercises a procedural right, there is an 'appearance of vindictiveness’ which the State has the 'heavy burden’ to dispel. See United States v. Groves, 571 F.2d 450 (9th Cir. 1978); United States v. Alvarado-Sandoval, 557 F.2d 645 (9th Cir. 1977); and United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976). It is the rule of the Fifth and Sixth Circuits '... that the mere possibility that prosecutorial .. . conduct may be vindictive is insufficient to trigger judicial sanctions.’ United States v. Andrews, 633 F.2d at 453, and United States v. Thomas, 617 F.2d 436 (5th Cir. 1980). Only where there exists a 'realistic likelihood of vindictiveness’ or 'actual vindictiveness’ can a defendant invoke judicial sanctions. The State, however, must be given the opportunity to rebut the claim by 'an objective on-the-record explanation showing non-vindictiveness.’ United States v. Andrews, 633 F.2d at 456. Other circuits have dealt with the issue of prosecutorial vindictiveness on an 'ad hoc’ basis. See United States v. Andrews, 633 F.2d at 453, n. 4, United States v. Jamison, 505 F.2d 407 (D.C. Cir. 1974). Lovett v. Butterworth, 610 F.2d 1002 (1st Cir. 1979), cert. denied, 447 U.S. 935, 100 S. Ct. 3038 (1980), and United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976).” .

Relying primarily on Andrews, the State argues that the circumstantial chronological sequence of events is insufficient to ignite an inquiry. Beyond that however, since inquiry was had, the State is satisfied that it had rebutted the inference of vindictiveness, pointedly noting that the increased charges could hardly have been vindictively prepared and filed so precipitously, and further noting that they were circumstantially justified by having included the same treatment for thirty-three others. Those circumstances so obviously support appellee’s denial of vindictiveness, the State argues, that the trial judge was not clearly in error when he ruled in its favor.

Blackledge

Our reading of Blackledge compels our conclusion that the trial judge should not have determined whether retaliation actually occurred in this case. It was sufficient that the apparent circumstances surrounding the enhanced charges gave rise to a genuine risk of retaliation. Like the defendant in Blackledge, appellant faced increased charges brought by a prosecutor who had an incentive to deter defendants from exercising a right that would "require increased expenditures” of prosecutorial time. Id. at 27.

In Blackledge, the Supreme Court held that the very bringing of more serious charges following a defendant’s exercise of a right violates due process as defined in Pearce, supra. The rationale was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. It was predicated (as was Pearce) upon the concern that the fear of vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction. Blackledge, supra at 28; Pearce, supra at 725. Due process, the Court held, requires that a defendant be freed of the apprehension of such a retaliatory motivation.

"A person convicted of an offense is entitled to pursue his statutory right... without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.” Blackledge, supra at 28 (footnote omitted).

We agree with the United States Court of Appeals for the Fourth Circuit in United States v. Goodwin, (4th Cir. 637 F.2d 250, 1981), which construes Blackledge as suggesting no balancing test. Judge Winter pointed out for the Court that Blackledge "adopts a prophylactic rule designed to spare courts the unseemly task of probing the actual motives of the prosecutor in cases where objective circumstances suggest a realistic possibility of vindictiveness.” Goodwin, (Emphasis added). See also United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976).

There is, according to Judge Winter, one narrow escape valve:

"If the government wishes to avoid the limitation on prosecutorial discretion dictated by Blackledge, it must come forward with objective evidence to show that the increased charges could not have been brought before the defendant exercised his rights.” Goodwin, at 255.

This narrow exception was suggested in Blackledge by footnoting Diaz v. United States, 223 U.S. 442 (1912), as an example of a case wherein it was impossible for the prosecutor to proceed at the outset on the more serious charge.

"In that case the defendant was originally tried and convicted for assault and battery. Subsequent to the original trial, the assault victim died, and the defendant was then tried and convicted for homicide. Obviously, it would not have been possible for the authorities in Diaz to have originally proceeded against the defendant on the more serious charge, since the crime of homicide was not complete until after the victim’s death.” Blackledge, supra at 29 n. 7.

Such evidence was not forthcoming in the instant case, and even the explanation that was presented leaves an implausible void in the State’s attempted justification that because the police

"could not isolate one statutory section that the defendant conspired to commit, but pointed equally to three,”

the state’s attorney’s office directed the police to file a three-count conspiracy document,

"choosing to worry about merger at the trial.”

Notwithstanding the fear that a charge of conspiracy "to violate the gambling laws” as was originally charged may have been somewhat vague, the State offers no justification or explanation of why the subsequent charge could not have alleged in a simple count one conspiracy to violate the three sections of the Code, rather than three separate conspiracies to violate the enumerated sections. As so charged, appellant was exposed to a sentence three times that which was originally facing him. See Albernaz v. United States, 49 U.S.L.W. 4237 (decided March 9, 1981).

When the first attack came upon the technicality of a missing signature, that could have been obviously easy to remedy instead of consuming such valuable court time in a meaningless argument. Once lost in fact, the same charge could have been reinstated, but assuming at the time the State was concerned with its lack of specificity, it could have nol prossed and recharged appellant without ever seeking court approval. In that instance the State might even have charged separate counts without the suggestion of a realistic possibility of vindictiveness. Indeed, had it chosen to nol pros even now, it could have averted this appeal by recharging appellant properly without suggestion of vindictiveness. Even upon reversal here, we know of aught to foreclose recharging appellant properly but without the added exposure which suggests retaliation.

We hasten to note that there is nothing in the record to indicate personal animosity by the prosecutor. In fact appellant conceded as much at argument. The courts, however, have assumed the mien of Calpurnia and are oft times as much concerned with the appearance of propriety as with the fact of it. An accused, fighting to prove his innocence, must feel no untoward restraints. That is the underlying theme of Blackledge as interpreted by Goodwin and as intended by the Supreme Court.

While we are bound by the Supreme Court, we are not bound by other federal holdings. We are, however, persuaded in this case that Goodwin properly interpreted Blackledge. Had we not been persuaded by the reasoning, the foreseeable practicalities would have influenced us, for if we ruled contrary to Goodwin and appellant were convicted, the Goodwin rule could be applied by the federal courts on petition for habeas corpus, wasting more judicial time. Even minimal applications of common sense could spare us great public expense. Unless we learn to swallow some pride and begin to treat technical oversights (here, one of two signatures overlooked) as technical oversights rather than as opportunities to create constitutional issues wending their way upward in the appellate process, our system of jurisprudence stands the jeopardy of Ben Franklin’s kingdom — lost for the want of a horseshoe nail.

Judgment reversed.

Costs to be paid by Mayor and City Council of Baltimore City.

      . At a hearing on his motion to dismiss, appellant’s counsel said:
      "First of all, Your Honor, this motion is not addressed, in any fashion or form, towards Mr. Prevas as an individual. Nor does it . have anything to do with Mr. Prevas’ feelings about Judge Perrott’s rulings. I hasten to bring this out, because in his reply, he stated that no vindictiveness has occurred, he seemed to suggest it was against —• he’s had some ill feelings because Judge Perrott dismissed it. That’s not the issue.”
      "The Defendant need not prove that he was an actual victim of retaliation under the rule, but only that he has a realistic apprehension that the prosecutor has retaliated for his exercise of his rights. And with my personal knowledge of Mr. Prevas in this case, not to hint Mr. Prevas personally retaliated against the Defendant, that clearly is not our position, but we state that the law states if the Defendant has a realistic apprehension that the prosecutor has retaliated for his exercise of his rights, the rule has been applied in a number of circumstances beyond the retrial after successful appeal —”

      . Blackledge exercised a right of appeal from a misdemeanor conviction of assault with a deadly weapon in a North Carolina District Court to a trial de novo in the Superior Court of the State. The State then indicted him for the felony of assault with a deadly weapon with intent to kill and inflict serious bodily harm.