author: Moore, J.,

text:
    GERALD D. SCHACKOW v. MEDICAL-LEGAL CONSULTING SERVICE, INC.
    [No. 1252,
    September Term, 1979.]

      Decided July 10, 1980.

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

      Albert D. Brault, with whom were Brault, Graham, Scott & Brault on the brief, for appellant.

      Oran R. Lewis, Jr., and Richard B. Bland, with whom were Stephen A. Horvath, Lewis, Wilson, Lewis & Jones, Ltd., and Landcaster, Bland, Eisele & Herring on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Gerald D. Schackow, a member of the Florida Bar, was trial counsel for the successful plaintiff in a serious medical malpractice action tried before a jury in Gainesville, Florida in March 1977. Appellee, Medical-Legal Consulting Service, Inc., a Maryland corporation engaged in the business of providing consulting services to attorneys in the preparation of cases involving medico-legal issues, brought suit against appellant in the Circuit Court for Montgomery County to enforce payment of a ten percent contingent fee for services rendered in the case under a consulting agreement with attorney Schackow and his client. The total recovery in the malpractice action was 1.435 million dollars. The court below (Mitchell, J.) awarded judgment to the consulting firm in the sum of $130,351.25. We shall affirm.

I

The malpractice action had its genesis in Florida when John Judd Dixon, age 35, fell while waterskiing on June 5, 1974. Twelve days later, with symptoms of headaches, personality changes, and amnesia, Mr. Dixon went to his family physician, Dr. George Little. The latter prescribed Midrim and ordered a routine neurological examination for June 26,1974. Two days before the examination, Mr. Dixon, suffering from the same but aggravated complaints, went to the emergency room of the North Florida Regional Hospital. He was seen by Dr. Donald T. Quick, the neurologist with whom his routine examination had been scheduled. Dr. Quick admitted Mr. Dixon and arranged for a series of neurological tests.

On June 25, 1974, the day following Mr. Dixon’s admission to the hospital, a skull x-ray and brain scan were performed. Dr. A. J. Dickhaus, a radiologist, interpreted the scan between 7:30 and 10:55 that very morning. It was the radiologist’s opinion, based on the tests, that Mr. Dixon had a subdural hematoma — bleeding inside the skull beneath the dura mater, the outermost of three membranes covering the brain. The report and opinion were transmitted routinely to Dr. Quick.

Meanwhile, Mr. Dixon’s condition was rapidly deteriorating. At 12:45 p.m. the pressure from the expanding hematoma caused a portion of the brain to herniate by protruding into a sinus cavity. An hour later Dr. Joseph Cauthen, a neurosurgeon, bored emergency and temporary burr holes to relieve the pressure. Subsequently, complete surgical procedures were employed to remove the hematoma. Due to the herniation of his brain, caused by delay in proper medical treatment, Mr. Dixon was rendered cortically blind and a quadriplegic. While a patient at the Veterans Administration Hospital in Gainesville, he was adjudged mentally incompetent by a Florida court, and his wife, Glenda Ann Dixon, was appointed as guardian. (At the time of the accident, Mr. Dixon held a Master’s Degree in Business Administration and was a doctoral candidate at the University of Florida.)

(a) The Contract with MLCS

Mrs. Dixon consulted Gerald D. Schackow, Esq., the defendant in this case, with reference to a potential malpractice suit against the health care providers who treated her husband. Mr. Schackow agreed to accept the case. Although admitted to practice in 1966 and possessing substantial trial experience, he had never handled a medical malpractice suit and therefore embarked upon a search for help in assembling a case against the physicians and the hospital. Another Florida attorney recommended the plaintiff, Medical-Legal Consulting Service, Inc. (MLCS), headquartered in Chevy Chase, Montgomery County. MLCS was described in the proceedings below as a consulting service designed to assist attorneys in preparing medically oriented litigation and in locating physicians willing to testify at trial; it essentially serves as an educator and conduit, bringing together attorneys and physicians and familiarizing them with the critical aspects of the case. MLCS determined, in a written "Preliminary Analysis” dated May 9, 1975, that Mr. Dixon’s malpractice claim was meritorious. Thereafter, on May 20, 1975, a contract for assistance in the preparation of the case was entered into between MLCS, Schackow, and Glenda Dixon. Under the agreement MLCS would receive a percentage of the net recovery, on a graduated basis. Effectively, MLCS would be paid ten per cent if the recovery exceeded $1,000,000.00. MLCS undertook to "exert its best efforts and abilities” but made "no promises or guarantees regarding the outcome. ...” Authorized expenses of the consultants as well as fees and expenses of experts were to be paid by Mrs. Dixon irrespective of the outcome.

(b) Dixon v. Little, et al.

A malpractice action was subsequently filed against Doctors Little, Quick, and Dickhaus, and North Florida Regional Hospital in the Circuit Court of Florida, Eighth Judicial Circuit In and For Alachua County. Mr. Schackow and MLCS began to prepare the malpractice action against the health care providers. The consultants were to assist counsel by helping them to understand the medical aspects of the case and locating qualified physicians willing to testify.

A search was begun for a neurologist to testify as an expert against Dr. Quick who, in the judgment of MLCS, was "80 per cent” responsible for Mr. Dixon’s condition. Two neurologists were contacted by MLCS. Dr. Gunter R. Haase, chairman of the department of neurology at Pennsylvania Hospital in Philadelphia, received the pertinent medical records, agreed to testify, and was deposed in April 1976. At the time of his deposition Dr. Haase indicated that he felt that there was possible malpractice in the handling of Mr. Dixon’s treatment; however, he had not been given the depositions of Drs. Quick or Little. Upon being furnished by MLCS with copies of those depositions some nine months later, Dr. Haase opined in a letter of February 23, 1977 to Mr. Schackow that "I am not too sure that I will be a good witness for you.” He based this determination on a further review of the medical records and the depositions provided to him, and he concluded that "I will not be able to say that this was a clear case of malpractice... .” Dr. Haase was, of course, lost to the plaintiff as a potential expert witness.

MLCS also contacted Dr. Gerald F. Winkler, an eminent neurologist at Massachusetts General Hospital in Boston. He reviewed the case and agreed to testify for the plaintiff. It happened, however, that the trial date was set at a time — the only time in his schedule — when Dr. Winkler had a long-standing prior commitment. Although he offered to appear by way of videotaped deposition, Mr. Schackow ultimately decided that he would not be an appropriate witness for an Alachua County jury; he apparently also felt that the doctor’s fee was too high. The videotaped deposition of Dr. Winkler was never taken.

Placed on notice that the two neurologists, who were expected to appear as plaintiffs expert witnesses, would be unable to do so, MLCS wrote to Mr. Schackow on February 1,1977 that "we might be wise to allow these issues to lie for the time being and attempt to find a Florida neurologist who will speak to the issues.... [I]t’s in the case’s best interest to temporize.” February 18, 1977 was the final day for the naming of experts for the impending trial.

On February 16th MLCS contacted Dr. Sharif Shafey, a Miami neurologist, who apparently agreed to peruse Mr. Dixon’s records, which were delivered to him a day later. The same day, February 16th, MLCS informed Mr. Schackow that they had contacted a "[s]uper board-certified neurologist from Miami willing to speak to issue.” Mr. Schackow then listed Dr. Shafey as an expert witness for the plaintiff, but the doctor thereafter refused to be deposed or to participate in any manner, stating: "I have declined this case and I have not accepted to testify ... on anybody’s behalf.” In reviewing the circumstances surrounding the abortive attempt to enlist Dr. Shafey as an expert the trial court was "persuaded that Mr. Militana [President of MLCS] told Mr. Schackow that Dr. Shafey would testify for the Dixons before the doctor had actually received the records, found malpractice, and agreed to testify.” Plaintiff went to trial without the benefit of expert testimony from a neurologist.

Between February 12 and March 18, 1976, Mr. Schackow sent four letters to MLCS in which he requested MLCS to locate a radiologist to testify as an expert witness against Dr. Dickhaus. On March 23, 1976 Robert Militana, MLCS’s president, stated in a letter to Mr. Schackow that "we are prepared to present your client’s case to one of the best Neuro-Radiologists in the country who practices in the Washington, D. C. are [sic] and is willing to work with us and testify at the trial of this case.” MLCS did not contact the radiologist until February 10, 1977, eleven months later. The radiologist was of the opinion that Dr. Dickhaus had not been negligent in handling Mr. Dixon’s brain scan. No other radiologists were contacted by MLCS, and plaintiff went to trial without a radiologist to testify against Dr. Dickhaus.

No expert witnesses were found to testify against the hospital. The trial court stated in its opinion: "It could not ... reasonably have been expected that MLCS would employ much time and effort in pursuing this aspect of the case, but there was no evidence that the Plaintiff ever asked any expert to consider the hospital’s possible negligence.” In a memorandum dated February 9, 1977 Mr. Schackow acknowledged that his case against the hospital was "poor.” Nevertheless, he obtained a $35,000.00 settlement from the hospital prior to trial.

On March 14, 1977 Mr. Dixon’s case went to trial against Doctors Little, Quick, and Dickhaus. Two Florida general practitioners, who had been located by MLCS, testified that Dr. Little violated the standard of care for general practitioners in Florida. At the close of plaintiffs case Doctors Quick and Dickhaus obtained directed verdicts in their favor because plaintiff had no experts to testify against them. The jury returned a verdict against Dr. Little, the remaining defendant, in the amount of $1,500,000.00.

An appeal was noted by Dr. Little, but prior to the filing of briefs the parties settled for $1,400,000.00. The total recovery in the case was thus $1,435,000.00, and MLCS’s ten per cent share of the net recovery, pursuant to its contract with Mrs. Dixon and Mr. Schackow, was $142,051.25.

Mr. Dixon was, as previously noted, incompetent, and Mr. Schackow filed a petition with the Florida court having jurisdiction over Mr. Dixon’s guardianship for approval of the contingency fee contract. The contract, which was signed by the parties and approved by the court on May 20, 1977, included the representation: "The ten (10%) fee for MLCS will be paid from the attorney’s fee, outlined above.” The attorney’s fee was to be 47.5% of the net recovery, representing a reduction from 50% originally negotiated in a contract signed on May 9, 1975.

(c) Refusal to Pay Consultants

Mr. Schackow refused, however, to pay MLCS the fee set in the contract dated May 20, 1975. On September 9, 1977 MLCS filed a declaration in the Circuit Court for Montgomery County asking for its ten per cent fee plus interest and costs. Prior to the trial of the case Mrs. Dixon executed an assignment to Mr. Schackow of any "claims, demands and causes of action of whatsoever kind and nature ...” that she may have had against MLCS. Mr. Schackow’s primary defense to MLCS’s action against him was premised on alleged material breaches of contract that rendered MLCS’s performance deficient. He averred that MLCS should be denied any recovery on the contract, contending that the recovery, if any, should be on the basis of quantum meruit.

After a five day trial, the court held the case sub curia. An extensive and well-reasoned Memorandum and Order was filed on July 16, 1979 in which the court found that MLCS had not fully performed its consulting agreement but that it had substantially performed. The court also found that the breaches by MLCS might have caused three general types of damages for which Mr. Schackow could be compensated: (1) failure to collect on the judgment because the verdict was against only one defendant; (2) additional expense and work incurred by Mr. Schackow to perform functions that should have been accomplished by MLCS; and (3) damages resulting from the directed verdicts in favor of the doctors and the resulting judgment for costs.

The court found that the evidence supported only the last category of damages, and therefore it reduced plaintiffs recovery by the appropriate amount. With regard to defendant’s contention that the contract with MLCS was void as against public policy, the court found the contract valid. Judgment in the amount of $130,351.25 was entered in favor of the plaintiff; defendant took a timely appeal to this Court and assails the lower court’s action on five grounds:

1. MLCS materially breached the contract;
2. The doctrine of substantial performance was erroneously applied;
3. The doctrine of quantum meruit should have been applied;
4. In awarding damages to Mr. Schackow, the court erred in its application of the burden of proof; and
5. The contingent fee contract contravened the public policy of Maryland.

II

During the trial of this case MLCS asserted and attempted to prove that it had fully performed its obligations under the contract with Mrs. Dixon and Mr. Schackow. In his written opinion, after reviewing the testimony and voluminous exhibits, Judge Mitchell found:

"The Court concludes from all of the evidence that the Plaintiff did meet most of its obligations under the contract. MLCS did let down at times, but over the two-year period its personnel assisted Mr. Schackow and his associates in many ways. By March, 1977, Mr. Schackow probably could have done without MLCS’s help, but in the preceding years MLCS’s assistance was substantial and of great value to the lawyer inexperienced in medical malpractice work. While MLCS should have done more to aid the Defendant with experts, the corporation did give him a lot of help in this area, too. Accordingly, the Court concludes that MLCS’s breaches did not prevent it from performing substantially everything that could have reasonably been expected under the contract.”

On appeal, Mr. Schackow attacks this finding, contending that the trial court should have found that MLCS was guilty of major and material breaches in the performance under the contract.

It is firmly entrenched in the law of Maryland that:

"What is or is not substantial performance of a contract is a question of fact to be determined by the trier of facts in the light of the circumstances of each case.”

William F. Klingensmith, Inc. v. David H. Snell Landscape Contractor, Inc., 265 Md. 654, 665, 291 A.2d 56, 62 (1972). See Pleasant Place, Inc. v. Levinson, 260 Md. 279, 290, 272 A.2d 35, 41 (1971); and Evergreen Amusement Corp. v. Milstead, 206 Md. 610, 621, 112 A.2d 901, 906 (1955). Of course, we cannot reverse the trial court’s finding that the contract was substantially performed, unless our review of the record discloses that the trial court committed clear error in making its findings. Id.; Md. Rule 1086.

Mr. Schackow’s position, as stated in his brief, is that the "failure of MLCS to obtain, prepare and deliver experts was ... a material breach that went to the essence of the contract.” Specifically, he complains that MLCS did not have experts to testify against Dr. Quick, the neurologist, Dr. Dickhaus, the radiologist, and the hospital.

In the contract that forms the basis of the subject action it was stated "that MLCS will exert its best efforts and abilities on this case... .” MLCS did find two neurologists who agreed to testify for the plaintiff. Dr. Haase, however, eventually concluded that there was no negligence in the case. The delay, blamed on MLCS by Mr. Schackow, in submitting medical records or depositions to Dr. Haase did not, apparently, influence his ultimate conclusion that medical malpractice was not present in the case. Dr. Winkler, also obtained by MLCS, was willing to testify in person or on videotape, but he could not personally appear for trial due to a prior commitment. Mr. Schackow declined the opportunity of taking his deposition for subsequent use at trial.

After hearing all the evidence the trial court made specific findings with respect to the performance of the consultants which may be summarized as follows:

1. MLCS helped Mr. Schackow "in many ways. They helped him obtain the necessary background knowledge for trying a malpractice case.... MLCS also continually discussed tactics with Mr. Schackow;...”
2. "MLCS assisted Mr. Schackow with the discovery process. [Its] personnel suggested interrogatory questions. People from MLCS helped to prepare Mr. Schackow for the depositions of defense witnesses;”
3. "MLCS also used its efforts to locate and prepare expert witnesses for Mrs. Dixon’s case;”
4. "MLCS directed Mr. Schackow to Drs. Chapman and Pepper, helped to prepare these experts, and persuaded them to work with Mr. Schackow;” and
5. "Finally, MLCS helped Mr. Schackow once the Dixon trial had begun. He was provided with an extensive medical brief... . MLCS also supplied Mr. Schackow with possible cross-examination questions... . [A]fter the defense noted an appeal, MLCS advised Mr. Schackow regarding the appeal.”

The plaintiff in the underlying malpractice case received a $1,500,000.00 verdict using the expert testimony provided by two general practitioners located by MLCS. Obviously, MLCS, with its percentage fee agreement, had every incentive to ensure that the verdict would be as large as possible and against the greatest possible number of defendants. We have reviewed the voluminous record in this case. The failures of MLCS were considered by the trial court and found to be minor, and it reiterated "that MLCS performed substantially everything that reasonably could have been expected of it over the two-year period.” That finding, supported by substantial evidence, is not, on this record, clearly in error.

Ill

Mr. Schackow also argues that the trial court erred in applying the doctrine of substantial performance by placing on him the burden of proving the value of work not performed by MLCS. He avers that Maryland law places on a plaintiff relying upon the doctrine the burden of proving the damages that are to be subtracted from the contract price.

The leading Maryland case dealing with the burden of proof under the doctrine of substantial performance is William F. Klingensmith, Inc. v. David H. Snell Landscape Contractor, Inc., supra, 265 Md. at 666, 291 A.2d at 63, where the Court of Appeals heavily relied upon Spence v. Ham, 163 N.Y. 220, 57 N.E. 412 (1900). The New York Court of Appeals said in that case:

"He who relies upon substantial [performance] as contrasted with complete performance must prove the expense of supplying the omissions, or he fails in his proof; for he cannot recover for full performance when a part of the contract is still unperformed.... This is an essential part of substantial performance, and hence the proof should be furnished by the one who claims substantial performance.” (Citations omitted.)

Id. at 226, 57 N.C. at 413. In Klingensmith, an action by a landscaping contractor against its subcontractor, the Court remanded the case without affirmance or reversal for the plaintiff to prove the cost of the work which had not been performed. Mr. Schackow asserts that the trial court erred and that a remand of the case is required for further proceedings on the damages issue.

As previously noted, the trial court found three categories in which potential damages for incomplete performance by MLCS existed. The court stated:

"First, Mrs. Dixon might have had trouble obtaining satisfaction of the judgment because there were not verdicts against all of the defendants. The evidence did not indicate, however, that she had such a problem.”

Mr. Schackow does not contest this finding on appeal.

For the third category of potential damages the trial court stated:

"Mr. Schackow produced evidence that because there were directed verdicts for Drs. Quick and Dickhaus, the Florida Court assessed a judgment for costs against his client and in favor of these doctors.”

Since the judgment for costs was settled for $13,000.00, the trial court deducted that sum from the contract price due the plaintiff, and Mr. Schackow does not except to this ruling.

It is the second damage category and the trial court’s treatment of it that has come under attack. The court found that "Mr. Schackow might be entitled to be compensated for doing work that MLCS should have performed under the contract.” In computing the damages that could be assessed under this second category, however, the court ruled:

"While the burden of proof is on the Plaintiff regarding the amount of damages to be subtracted,... the Court refuses to engage in pure speculation for the Defendant’s benefit.”

The latter statement is what gives rise to Mr. Schackow’s complaint. He believes that "the trial court was manifestly in error. By attempting to transfer the burden of both proceeding and proof to the defendant, the trial judge has ignored Maryland law.”

It is clearly the law of Maryland that once the court finds that a contract has been merely substantially performed, it is incumbent upon the plaintiff to prove the expense of supplying the omissions. William F. Klingensmith, Inc. v. David H. Snell Landscape Contractor, Inc., supra, 265 Md. at 666-67, 291 A.2d at 63.

Professor Corbin has pointed out that:

"The evidence may show that although there was a breach by the contractor there was no injury resulting, in which case there is no deduction from the contract price.”

3A Corbin on Contracts § 710, p. 342 (1960) citing Jacobs & Young v. Kent, 230 N.Y. 239, 129 N.E. 889 (1921).

Klingensmith makes plain that the ultimate risk of persuasion on the issue of damages under the doctrine of substantial performance is upon the plaintiff. However, we deem it implicit in Klingensmith that once the substantial performance doctrine is injected into the case, the burden of going forward with the evidence shifts to the defendant. In the instant case, Mr. Schackow testified that MLCS’s incomplete performance caused him and his associates to do some things that MLCS should have done. Mr. Streit, an associate employed by Mr. Schackow’s firm and whose sole assignment consisted of work on the Dixon case, testified that he had performed extensive medical research during his preparation of the case. After reviewing this evidence, the trial court found that "[t]he Defense did not specify in any detail what was due that MLCS should have done....” Our review of the record and particularly the testimony of Messrs. Schackow and Streit confirms the trial court’s conclusion. Because the evidence of the defense did not establish what the law firm was required to do that should have been accomplished by MLCS, Mr. Schackow did not prove his entitlement to damages for this second category — he did not meet his burden of going forward with the evidence.

We observe, in this connection, that Corbin suggests a sensible procedure to govern the application of the Klingensmith rule:

"[I]t would be at least appropriate for courts which have not abandoned the older rule ... to excuse the substantial performance claimant from putting on evidence of the costs of repair of defects until the other party has gone forward with evidence showing that such defects existed and specifying them with sufficient particularity that the contractor knows exactly which items it is supposed to owe a duty to cure.”

3A Corbin on Contracts § 710, p. 517 (1980 Cum. Supp.). This approach has practical underpinnings. It places the initial burden of pinpointing the items of damage for non-performance upon the party with ready access to the facts. And it avoids giving the plaintiff the impossible task of anticipating and attempting to refute every conceivable failure that might or might not be raised by the defendant. And finally, it conserves judicial resources by requiring the plaintiff to prove a value for only those defects which have been previously established by the defendant.

The trial court properly applied the Klingensmith rule and did not err in refusing to reduce MLCS’s recovery under the contract on this second category of damages.

IV

Mr. Schackow’s final contention is that the contract with MLCS is void because it offends the public policy of Maryland. He levels a three-pronged attack at the contract, contending that it raises serious issues of barratry, champerty and maintenance, and public policy. We shall discuss his arguments seriatim.

(a) Barratry

The essence of barratry is the solicitation of another to make a litigious claim by one without an existing relationship or interest for his own gain; it is a crime in this State punishable by fine or imprisonment. Md. Ann. Code, art. 27, § 13 (1976). Mr. Schackow avers that "MLCS’s solicitation of and contracting here is to retain 'another’s services in so suing or making a litigious claim.’ ” In his reply brief he asserts that MLCS "'strongly urged’ the maintenance of the underlying lawsuit while having no existing relationship or interest in the issue.”

We agree with MLCS that there is no proof of solicitation, an essential element of the crime of barratry. MLCS was contacted by Mr. Schackow’s law firm on the basis of a recommendation from another Florida attorney. Although MLCS did advertise its services in various legal publications, it never initiated the contact with Mr. Schackow about the Dixon case. Since MLCS did not solicit Mrs. Dixon or Mr. Schackow within the meaning of Md. Ann. Code, art. 27, § 13 (1976), the contract entered into by the parties is not a product of barratrous activities.

(b) Champerty and Maintenance

Citing Merrell v. Stuart, 220 N.C. 326, 17 S.E.2d 458 (1941), Mr. Schackow argues that MLCS was guilty of champerty and maintenance because it assisted Mrs. Dixon in prosecuting her case in exchange for a share of the recovery. In Merrell an agreement with a non-lawyer for investigation and production of evidence in exchange for a percentage of the recovery was held to be champertous and thus void as against public policy. Id. at 333,17 S.E.2d at 463.

Black’s defines champerty and maintenance as:

"A bargain by a stranger with a party to a suit, by which such third person undertakes to carry on the litigation at his own cost and risk, in consideration of receiving, if successful, a part of the proceeds or subject sought to be recovered____'Maintenance’ consists in maintaining, supporting, or promoting the litigation of another.”

Black’s Law Dictionary (5th ed. 1979). This Court has recently defined the terms:

"Maintenance exists when a person 'without interest’ in a suit officiously intermeddles by assisting either party, ... champerty adds the element of an agreement for payment from the subject matter of the suit.”

Lahocki v. Contee Sand & Gravel Co., 41 Md. App. 579, 608, 398 A.2d 490, 507 (1979), rev’d on other grounds sub nom. General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980). See also Schnabel v. Taft Broadcasting Co., 525 S.W.2d 819, 823-25 (Mo. App. 1975).

In Merrell the court indicated that an agreement by a litigant with a disinterested third party becomes champertous when "it contemplates litigation and, for a share of the recovery, calls for procurement of evidence essential to success.” Merrell v. Stuart, supra, 220 N.C. 326, 332, 17 S.E.2d 458, 462 (1941). Other courts, however, which have considered the question have found similar arrangements to be ethical and not champertous. See, e.g., Haley v. Hollenback, 53 Mont. 494, 165 P. 459 (1917) (contingent fee contract for procuring witnesses for trial); Bell County Board of Education v. Lee, 239 Ky. 317, 39 S.W.2d 492 (1931) (contingent fee contract for audit based on recovery); and Barnes v. Boatmen’s National Bank of St. Louis, 348 Mo. 1032, 156 S.W.2d 597 (1941) (contingent fee contract with psychiatrist to find evidence).

Contingent fees for the services of an attorney in most civil cases are permissible in Maryland when they provide a means for obtaining the services of an attorney by one having a claim against another; when the client could not otherwise afford a competent attorney; and when successful prosecution of the claim will provide a res from which the fee can be paid. See generally Code of Professional Responsibility of the Maryland State Bar Association, Ethical Consideration 2-20.

MLCS president, Robert J. Militana, described his organization as "largely an extension of the attorney’s work product in the area of of medicine.” Under its arrangements the attorney controls all aspects of the litigation. MLCS acts only on request and does not perform functions beyond its consulting, educational, and evidence-gathering roles. On this record we cannot find that MLCS was an "officious intermeddler” which attempted to stir up litigation. The realities of modern medical malpractice may necessitate resort to technical assistance for the education of counsel inexperienced in such litigation, endeavoring to obtain expert witnesses, and marshalling evidence to support the claim. Clients who can afford attorneys only on a contingent fee basis cannot be expected to compensate a service, such as MLCS, at a flat rate.

We find nothing in the contract between MLCS, Mr. Schackow, and Mrs. Dixon that is champertous. See also ABA Comm, on Professional Ethics, Informal Opinion, No. 1375 (1976) (nothing in the Code of Professional Responsibility prohibits a contingent fee contract with a consulting service so long as: 1) the service does not engage in the unauthorized practice of law; 2) the lawyer does not share legal fees with the service; and 3) the fee is not payable for the service’s testimony).

(c) A Contingent Fee in Exchange for the ’’Delivery” of Expert Testimony

Mr. Schackow finally argues that MLCS bargained for a contingent fee in exchange for the testimony of its experts, and queries whether the fee agreement is against public policy. He asserts that "in helping to prepare the various experts to testify MLCS seeks to skirt ethical and public policy considerations by its contention that in the final analysis the expert witness only testifies if his own opinion 'agrees’ with that of MLCS.” While it is apparent that MLCS itself studies a case — through its staff which includes licensed physicians — and prepares a "corporate analysis” which it forwards to the prospective expert witness, the trial court found that the analysis "reads more like an introduction to the case and a brief suggestion of the reasons for malpractice [rather] than an attempt to tell a doctor what he should say.” We think this interpretation is correct.

In addition, it is evident that the doctors contacted by MLCS were highly reputable and of independent minds. Doctors Haase, Davis, and Shafey, after initially agreeing to review the records, were unable to testify that negligence was evident in Mr. Dixon’s treatment, despite being provided with the MLCS analysis that indicated a meritorious malpractice claim. It is clear beyond cavil that MLCS purported only to contact medical experts and that no attempt or guarantee was made to "deliver” expert testimony in exchange for a contingent fee. All the experts were to be paid a flat fee by the client. MLCS’s role was limited to locating potential experts and then educating them about the case for Mr. Schackow. That arrangement does not violate the public policy of Maryland.

Judgment affirmed; costs to be paid by appellant.

      . Each party attempted to assign to the other responsibility for the failure in sending the depositions. The trial court found: "It was not clear at the trial before this Court whether Mr. Schackow had neglected to send the transcript to MLCS or whether MLCS had received it but neglected to forward it to the doctor.”

      . In accord with Florida law and procedure, the court, upon Dr. Quick’s motion to tax costs, entered a judgment for costs against the plaintiff in the doctor’s favor for $16,753.31. This judgment was subsequently settled for $13,000.00.

      . Corbin criticizes the Maryland rule, stating:
      "The reasons against this rule are pretty strong. The defendant, also, is making an affirmative claim. He did not have to bring the first action because, fortunately for himself, he has not yet paid the contract price in full. In practically every case, however, he has withheld too much, and to that extent is in the wrong. There is as much reason for making him prove his injury and its extent as for requiring the contractor to prove his asserted claim.”
      3A Corbin on Contracts § 710 pp. 340-41 (1960). The 1980 Supplement to Corbin calls the Maryland approach "oldfashioned” and characterizes Klingensmith as "Maryland’s fall from grace....” Id. at p. 516 (1980 Cum. Supp.). Whatever reservation we may have regarding the Klingensmith rule, it is the Maryland law as elucidated by the Court of Appeals and until overruled, we are bound to follow it.

      . We note that it is not unusual in a case of such complexity and significance as Mr. Dixon’s to have a junior associate attorney devoting a substantial portion of his time assisting in the preparation. There was no testimony that Mr. Streit would not have been hired but for MLCS’s failures. Nor was any contemporaneous displeasure with MLCS’s performance manifested in the many letters sent by Mr. Schackow to MLCS during the course of Mr. Streit’s employment.

      . The Code provides in pertinent part:
      "Whoever, for his own gain, and having no existing relationship or interest in the issue, directly or indirectly, solicits another to sue at law or in equity, or to make a litigious claim, or to retain his own or another’s services in so suing or making a litigious claim; or whoever knowingly prosecutes a case in which his services have been retained as a result of such solicitation. . . .”
      In Mr. Schackow’s view the portion of the barratry statute that was violated by MLCS involves MLCS’s solicitation of Mrs. Dixon "to retain his own or another’s services in so suing or making a litigious claim; or ... [to prosecute] a case in which his services have been retained as a result of such solicitations....” Md. Ann. Code, art. 27, § 13 (1976). Solicitation, as it is used in § 13, is to be understood by its common, everyday meaning and not by reference to the common law crime of solicitation. In re Appeal No. 180, 278 Md. 443, 447, 365 A.2d 540, 542 (1976).


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    WILLIAM E. DIXON and ERNEST J. LITTY, Ind. and Co-Partners t/a Benedict Associates et al. v. THE PROCESS CORPORATION
    [No. 1273,
    September Term, 1979.]

      Decided July 10, 1980.

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

      Timothy E. Meredith, with whom were William L. Corbin and Corbin, Heller & Warfíeld, Chartered on the brief, for appellants.

      Bayard Z. Hochberg for appellee.
   Liss, J.,

delivered the opinion of the Court.

"The scenario from which this appeal arises is intricate, ofttimes confusing and, yet, probably typical of many present-day land transactions.” So said Chief Judge Gilbert in an earlier appeal to this Court which involved the same parties. Unfortunately, in the interim since the parties last appeared before us, the situation has become even more confusing.

The appellee in the present case, The Process Corporation (TPC), was incorporated in April of 1972 for the purpose of engaging in land development. TPC was one of a number of independent subsidiaries of the parent corporation known as Process Incorporated of Maryland (PIM). Thomas A. Garland was the president of the various corporations and chairman of the board of PIM.

In the early part of 1972, a law partner of Garland’s, John Healey, contacted appellant William E. Dixon to solicit Dixon’s investment in a proposed development known as Clinton Woods which was located in Prince George’s County. Dixon declined to invest in the Clinton Woods project. Later that same year, Healey again communicated with Dixon and informed him that the development and acquisition of a large tract of land consisting of five farms located in Charles County, called Maxwell Hall, was pending, but that $150,000 was needed by the end of 1972 to purchase one of the farms known as the Chaney farm. Dixon expressed interest in the project and contacted appellant Ernest J. Litty who agreed to finance the venture. Dixon and Litty formed a partnership known as Benedict Associates. The transaction which would allow the Process organization to settle on the Chaney farm involved Dixon providing the settlement funds and Garland taking the title to the land in his name as trustee for Dixon. The arrangement was for Garland to hold the property for approximately one year and then have PIM repurchase the property at a profit to Dixon.

The settlement on the Chaney tract was consummated on December 27, 1972. PIM issued two confessed judgment notes in favor of the appellants for $35,000 and $25,0Q0, which Garland signed in his capacity as president of PIM. On December 14,1973, PIM exercised its option to purchase the Chaney tract; however, the repurchase was not consummated at that point because PIM did not have sufficient funds to do so. In consideration of a ninety day extension of the date of settlement, Garland executed a promissory note for $50,000 payable to Dixon and Litty. The repurchase never occurred, no payments were ever made by Process on the notes, and confessed judgments were obtained in the Circuit Court for Charles County against PIM by the appellants according to the terms of each note on July 23, 1974.

In August of 1974, Monumental Title Company sought to obtain exclusive rights to handle settlements for the Ryland Corporation in the State of Maryland. Monumental was largely owned and controlled by Dixon who was the chairman of the board of that company. Ryland is a home building company whose method of operation includes entering into an option agreement with the developer of a subdivision, and selling its homes by displaying models. Once a home buyer signs a contract with Ryland, Ryland then exercises its option on the specific lot needed for building. The method contemplates one settlement when Ryland pays the developer and then a second settlement with the home buyer. Ryland was a purchaser of lots from TPC in the Clinton Woods development, and had scheduled the settlement of eight lots in that tract for January of 1975.

Prior to the scheduled settlement date for the Ryland homes, Dixon realized that there were two "Process” corporations, and the property in Clinton Woods was held by the wholly owned subsidiary, TPC, rather than the parent corporation, PIM, against which Benedict Associates had judgments. Dixon, at the time of the settlement instructed Monument’s settlement officer to put the settlement through on the Ryland lots, but to withhold any proceeds due TPC. The settlement sheet submitted to Garland on the day of settlement, unlike the one originally sent to Garland, indicated that the sum of $3,906.18 was to be paid to William E. Dixon on account of the judgments against PIM, and TPC was to be paid nothing. Garland then refused to proceed with the settlement. Garland testified that he "told Dixon that he knew full well he [Dixon] wasn’t entitled to any money. He [Dixon] said he was claiming it because of his judgments against PIM....” Consistent with Garland’s testimony was that of Dixon:

I went in and talked with Mr. Garland. I told him my position. I told him that I, where I stood, that — that before I took that position, and on a firm position, I called Charlie Atwater [an attorney] to determine if my thinking was proper and correct. If they could be declared by a court. And he disagreed vehemently. And I suggested, alright, we’d put — we’d put the settlement through, let’s not hold up the settlement. And we’ll put the proceeds in escrow, and let’s file a bill of either declaratory decree or a quiet title to determine whether or not my position is right or wrong. Mr. Garland said, absolutely not, nobody was going to hold his proceeds. He took the deed and left.

Shortly after the aborted settlement, Dixon contacted a former employee of his at Monumental who he felt Garland would ask to handle the settlement. Dixon put his former employee on notice of his intention to file suit to enforce the judgments which Dixon held against PIM. Dixon also called Healey to apprise him of his intention to litigate the dispute. The result was that neither Dixon’s former employee nor Healey would insure title to the lots. Garland then secured title insurance through another company and the settlement was completed on January-10, 1975, with $3,906.18 being paid to TPC.

TPC continued to sell lots in Clinton Woods to Ryland. However, TPC encountered financial difficulties and eventually surrendered the last thirty-two lots in Clinton Woods to the Union Trust Company in 1977 in order to avoid any further liability.

On October 23, 1975, the appellants filed an unsuccessful suit in equity in Prince George’s County against PIM and TPC in an attempt to have the court declare the assets of TPC to be those of PIM and thus to declare their judgments against PIM to be liens against Clinton Woods. In that earlier case, the appellants also claimed fraud sufficient to pierce the corporate veil of PIM and TPC. The lower court in that case found insufficient evidence of fraud, and this Court upheld that ruling on appeal although "there was legally sufficient evidence to cast doubt as to the separate corporate identities of PIM and TPC. . . .” Dixon v. Process Corp., supra, at 654. The legal fees for defending the Prince George’s County suit are claimed as an element of compensatory damages in the present action.

TPC filed the present suit at law in August of 1975 in the Circuit Court for Anne Arundel County against appellants, William E. Dixon and Ernest J. Litty, individually, and trading as Benedict Associates, and Monumental Title Company, seeking compensatory and punitive damages for slander of title and interference with contractual relations. At trial, appellants defended by claiming a conditional privilege. The lower court found that the appellants acted without any conditional privilege, and judgment was entered against the appellants, jointly and severally. The appellee was awarded $18,600 in compensatory damages and $21,000 in punitive damages. It is from this judgment that the present appeal has been filed.

The issues to be decided as raised by the appellants are:

I. Whether there was a conditional privilege to make statements regarding one’s own legal rights to parties who might conceivably be affected by those legal propositions?

II. Whether the trial court erred in awarding punitive damages?

III. Whether the trial court erred in permitting the plaintiff to recover attorney’s fees which were incurred in prior litigation with the defendants?

I.

Appellants urge that they had available to them the defense of a conditional privilege in this suit for injurious falsehood amounting to a defamation of appellee’s title to the land here involved. The Restatement (Second) of Torts Sec. 594 (1977) deals with the conditional privilege to make statements in the furtherance of one’s own self interest:

An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that
(a) there is information that affects a sufficiently important interest of the publisher, and
(b) the recipient’s knowledge of the defamatory matter will be of service in the lawful protection of the interest.

Comment c of Sec. 594 emphasizes that the privilege depends on whether the publisher believes an interest of his is affected even if that belief is erroneous as a matter of fact:

If there is information which affects a sufficiently important interest, as stated in Clause (a) and if the publication is made to a proper recipient, as stated in Clause (b), the privilege applies. If the interest is not in fact affected or if the recipient of the publication is not a proper person to receive the information, the privilege nevertheless applies if the publisher reasonably believes that this is the case.

To the same effect is Comment h which states:

For the conditional privilege to arise under the rule stated in this Section [594], it is not necessary that the publisher’s interest be actually in danger. It is enough that the circumstances are such as to lead a reasonable man to believe that the interest is in danger and that the defamatory publication is reasonably necessary for its protection.

With respect to slander of title referred to as "injurious falsehood,” there is stated in Sec. 647 of the Restatement (Second) a special conditional privilege analogous to the defamation privilege encompassed by Sec. 594. This privilege is defined as follows:

A rival claimant is conditionally privileged to disparage another’s property in land, chattels or intangible things by an assertion of an inconsistent legally protected interest in himself.

Comment b of Sec. 647 explains:

This Section states an added conditional privilege, applicable only to the publication of injurious falsehood and not to defamation. It differs from the conditional privilege stated in Sec. 594 in that it goes further and permits the publisher to assert a claim to a legally protected interest of his own provided that the assertion is honest and in good faith, even though his belief is neither correct nor reasonable.

Comment d of Sec. 647 points out it is only necessary that there be some chance of the asserted claim being sustained. That Comment states:

One may disparage another’s property in land, chattels or intangible things by asserting a legally protected interest in one’s self that is inconsistent with the other’s property in the land or other things in question. Under the rule stated in this Section a rival claimant is privileged to assert the inconsistent interest unless a trier of fact is persuaded that he did not believe in the possible validity of his claim. It is not necessary that the person asserting the claim should believe in its certain or even probable validity. It is enough if he believes in good faith that there is a substantial chance of its being sustained. Bad faith is treated as an abuse of the privilege stated in this Section.

The reason for the extremely broad privilege stated in Sec. 647 is explained in Comment f as follows:

The privilege stated in this Section is necessary to enable the claimant to preserve the enforceability of his claim. If, knowing that another is offering or about to offer land or other things for sale as his own, he fails to take advantage of a readily available opportunity to inform the intending purchaser or those likely to become purchasers, as when the sale is by auction, of his claim to the thing, he may preclude himself from afterwards asserting it against the purchaser. Therefore, he must be permitted without fear of liability to protect the enforceability of his claim by asserting it before the purchase is made.

The question of whether a defense of conditional privilege is available in a suit for injurious falsehood is initially a matter of law for the trial court. We said in Horning v. Hardy, 36 Md. App. 419, 373 A.2d 1273 (1977), quoting from W. Prosser, Torts Sec. 129 (4th Ed. 1971), that in a suit for injurious falsehood the defense of a conditional privilege is available under the following circumstances:

If [the defendant] has a present, existing economic interest to protect, such as the ownership or condition of property ... he is privileged to prevent performance of the contract of another which threatens it; and for obvious reasons of policy he is likewise privileged to assert an honest claim, or bring or threaten a suit in good faith, to exercise the right of petition to public authorities or to settle his own case out of court. [36 Md. App. at 429.]

However, Prosser, Sec. 129 at 945, goes on to say that "where [the] interest [of the defendant] is merely one of prospective advantage, not yet realized, he has no such privilege.”

Appellants argue that Dixon honestly believed that Benedict Associates, the partnership operated by the appellants, held an enforceable interest in the Clinton Woods property by reason of the judgments it held against PIM. They concede, however, that the judgments against PIM could not be enforced unless and until there was a successful judicial determination in the form of a decree lifting the corporate veil surrounding TPC. Therefore, the trial judge was correct in declaring that the interest on which the conditional privilege was asserted must have existed at the time the defamation occurred.

In Leonard v. Wilson, 150 Fla. 503, 8 So. 2d 12 (1942), the Supreme Court of Florida said:

[I]n most of the cases where the question has been in issue it has been held that it is not sufficient that the maker or author had an honest and reasonable belief in the existence of the interest or duty; that is, good faith and honest or reasonable belief in the existence of the duty or interest is not considered in determining whether the particular occasion is a privileged one. The duty or interest on which the privilege is founded must actually exist.... [8 So. 2d at 14.]

Accord, Johnson v. Hager, 148 Kan. 461, 83 P.2d 621 (1938); Garey v. Jackson, 197 Mo. App. 217, 193 S.W. 920 (1917); Gattis v. Kilgo, 140 N.C. 106, 52 S.E. 249 (1905).

The trial court in the present case did not find that the appellants enjoyed a privilege to interfere with TPC’s contractual relations with Ryland or Union Trust Company. The trial court held that as Benedict Associates had no interest in Clinton Woods, it possessed no conditional privilege as stated in Sec. 773 of the Restatement of Torts, quoted with approval by the Court of Appeals in United Rental Equipment Co. v. Potts & Callahan Contracting Co., 231 Md. 552, 191 A.2d 570 (1963), as follows:

One is privileged purposely to cause another not to perform a contract, or enter into or continue a business relation, with a third person by in good faith asserting or threatening to protect properly a legally protected interest of his own which he believes may otherwise be impaired or destroyed by the performance of the contract or transaction. [231 Md. at 560.]

It is here quite apparent that at the time Dixon undertook his course of conduct on behalf of Benedict Associates that partnership had no "legally protected interest” in Clinton Woods.

The trial court found that Dixon’s motive was to "gain a pecuniary advantage in some respect out of the property in Prince George’s County.” This course of conduct, then, was not privileged. As stated by Professor Prosser in Sec. 129 at 946:

Still less is there any privilege to interfere with the contract where there is no competitive relation, but the object is to put pressure upon the plaintiff and coerce him into complying with the defendant’s wishes in some collateral matter — as where an employer is induced to discharge a workman in order to compel him to pay the defendant a debt, prevent him from bringing a suit, or force him to compromise a claim, or for the purpose of extorting money from him. Interference with contractual relations is not a legitimate method of securing such an advantage. [Footnotes omitted.]

Finally, the trial court found that even if, arguendo, there was a conditional privilege, Dixon’s course of conduct negated any privileged which Benedict Associates might have enjoyed. As Professor Prosser said in Sec. 129 at 936-37:

The means employed may, however, affect the defendant’s privilege to interfere. The privilege of intentional invasion of the plaintiffs economic interests is limited to reasonable and proper means, by a restriction not unlike that which limits the defense of property to the use of reasonable force. Methods which are tortious in themselves, such as violence, threats and intimidation, defamation, ... or the harassing of agents, will not be privileged even where the defendant is acting for a purpose justifiable in itself.... [Footnotes omitted.]

On the basis of our review of the record in this case, we cannot find that the trial court was erroneous in its conclusion that as a matter of law the appellants had no conditional privilege to defame TPC’s title to the land in Prince George’s County.

It is clear from the trial court’s finding of facts that the court held there was knowing falsity or reckless disregard of the truth or both when Dixon defamed TPC’s title to Clinton Woods. See Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976); Marchesi v. Franchino, 283 Md. 131, 387 A.2d 1129 (1979). This factual conclusion accomplished two legal purposes: first, it overcame any conditional privilege which might have existed vel non; and second, it justified the award of punitive damages.

II.

In order to support an award for punitive damages in a private defamation case, the plaintiff must establish that the defendant made the defamatory statements either knowing them to be false or in reckless disregard of the truth. In order to reverse the trial court’s finding of facts, we would be required to find in our review of the record that the trial court was clearly erroneous in reaching its conclusions. However, we do not find any error in the trial court’s conclusions. The record is replete with evidence that Dixon in his effort to reach funds belonging to TPC to satisfy judgments against another corporation entered into a well orchestrated course of conduct designed to prevent TPC from completing its transactions with the title companies, the financial institutions, and the individual purchasers of lots owned by TPC. It is clear to us that the trial court committed no error in awarding punitive damages.

III.

The trial court awarded the appellee the sum of $18,600 as compensatory damages in this case. Admittedly, an undetermined portion of that award represented counsel fees incurred by the appellee in defending the prior litigation between the parties in Prince George’s County in which the appellants sought to pierce the corporate veil of PIM and TPC. No request for the allowance of counsel fees was made in that proceeding. The general rule in Maryland is clear "that other than usual and ordinary court costs, the expenses of litigation — including legal fees incurred by the successful party — are not recoverable in an action for damages. . . .” Empire Realty Co. v. Fleisher, 269 Md. 278, 285, 305 A.2d 144 (1974). See also Taylor v. Wahby, 271 Md. 101, 114-15, 314 A.2d 100 (1974); Freedman v. Seidler, 233 Md. 39, 47, 194 A.2d 778 (1963).

In a recent case decided by this Court, Archway Motors v. Herman, 41 Md. App. 40, 394 A.2d 1228 (1978), we discussed an exception to the general rule known as the collateral litigation exception. Quoting from McGaw v. Acker, Merrall, & Condit Co., 111 Md. 153, 160, 73 A. 731 (1909), we said:

The general rule is that costs and expenses of litigation, other than the usual and ordinary Court costs, are not recoverable in an action for damages, nor are such costs even recoverable in a subsequent action; but where the wrongful acts of the defendant has involved the plaintiff in litigation with others, or placed him in such relation with others as make it necessary to incur expense to protect his interest, such costs and expense should be treated as the legal consequences of the original wrongful act. [41 Md. App. at 44-45.]

We emphasized in Archway, supra, that the exception applies only when the collateral litigation involves a party other than the defendant. We went on in Archway to say that: "McGaw, supra, makes it clear that a claimant seeking counsel fees may prevail only when the wrongful acts of one of the parties to a contract had involved the claimant in litigation with others arising out of the contract.” 41 Md. App. at 45.

We find nothing in the facts in this case which would make the collateral litigation exception applicable to the case at bar.

Appellee cites Walker v. Ruggles, 540 S.W.2d 470 (Tex. Civ. App. 1976) as the case upon which the trial judge relied as authority for including attorney’s fees in the assessment of compensatory damages in this case. Further research, however, indicates that this case is not a correct application of the law of Texas. The later case of American National Bank v. First Wis. Mfg. Trust, 577 S.W.2d 312 (Tex. Civ. App. 1979), an action for slander of title, is apposite to the case at bar. In discussing the inclusion of attorney’s fees in the measure of damages the Texas court, in American National Bank, said:

Plaintiffs attempt to support [the] award of actual damages by the evidence relating to attorney’s fees is likewise unavailing. Such fees are not recoverable in an action of slander of title under the holding of this Court in Shell Petroleum Corporation v. Howth, 133 S.W.2d 253, 264 (Tex. Civ. App. — Beaumont 1939), reversed on other grounds, 138 Tex. 357, 159 S.W.2d 483 (1942). We are unable to find where this square holding by this Court has been overruled.
Plaintiff argues that the recovery of attorney’s fees is authorized as part of the "expense of litigation” in removing the cloud on its title. In so contending, plaintiff relies upon language found in Walker v. Ruggles, supra, 540 S.W.2d at 474-475. Perhaps this is a sound rule to be followed in the future; but, it must be admitted, it is contrary to the generally prevailing rule that such fees are not recoverable in either contract or tort actions in the absence of a statute or contract. [Citations omitted.] [Id. at 319-20.]

Appellee also points out that counsel fees may be awarded as damages in cases where there are "special circumstances” present as well. Freedman v. Seidler, supra, and Harry’s Thrifty Tavern, Inc. v. Pitarra, 224 Md. 56, 166 A.2d 908 (1961), are cited as authority for this proposition, but our reading of these cases convinces us that the facts of each of them makes them inapposite to the case at bar.

Finally, appellee urges that the trial court’s award of counsel fees may be upheld under Rule 604 b which provides as follows:

In an action or part of an action, if the court finds that any proceeding was had (1) in bad faith, (2) without substantial justification, or (3) for purposes of delay the court shall require the moving party to pay the adverse party the amount of the costs thereof and the reasonable expenses incurred by the adverse party in opposing such proceeding, including reasonable attorneys’ fees.

We think appellee’s position as to Rule 604 b is untenable for several reasons. Initially, we do not believe that the institution or prosecution of the original suit would qualify under any of the three grounds above recited. Secondly, it seems crystal clear to us that appellee had a right to have whatever legal rights he had, as doubtful as they may have been, determined in an appropriate forum. Finally, we conclude the case at bar is not the appropriate vehicle to claim an award of counsel fees in a case decided two years before the instant matter. If appellee felt it was entitled to relief under 604 b, an appropriate motion should have been made in the original proceedings, and the judge most familiar with the facts should have been requested to make such an award under Rule 604 b in that case. See Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 374 A.2d 419 (1977).

We conclude, finally, that the trial court erred in including in its award for compensatory damages any allowance for counsel fees in the Prince George’s County proceedings. As we are unable to determine what portion of the $18,600 awarded as compensatory damages was represented by the allowance for counsel fees, we shall strike that judgment and remand to the trial court for a recalculation of compensatory damages.

Judgment of $18,600 for compensatory damages stricken, remanded for further proceedings, judgment for punitive damages afñrmed.

% costs to be paid by appellant, V3 by appellee.

      . Dixon v. Process Corp., 38 Md. App. 644, 646, 382 A.2d 893 (1978).

      . We glean from the record a course of conduct on the part of Dixon which included numerous instances of interference with the contractual relations of the parties here involved. In addition to his threat of litigation directed at Healy and his warning to his former employee at Monumental of his intention to enforce the judgment against PIM, Dixon also called the owner of Calvert Land Title Company, a competitor of Monumental, and advised him that if he put the Ryland settlement through, he "would have all kinds of trouble.” Dixon also contacted the manager of Ryland’s Washington division to inform him that the owner of Calvert Title didn’t know what he was doing and if settlement were to be had the title wouldn’t be any good. Further, Dixon told an officer of Union Trust, then involved in the refinancing of Clinton Woods, that PIM and TPC "were in reality one entity and that ... his allegations were of a serious nature that would in fact cloud title....” And in February, 1975, Dixon communicated with counsel for Union assisting in the refinancing of Clinton Woods that "in fact the corporate entities were one and the same and that the lien of any judgment obtained against PIM extended also ... against TPC....”

      . There was evidence in the record, exclusive of the claim for counsel fees which supported at least a portion of the compensatory damages awarded by the trial court and consequently supports the award of punitive damages.


author: MacDaniel, J.,

text:
    MARK WALLACE v. ELLEN WALLACE
    [No. 1274,
    September Term, 1979.]

      Decided July 11, 1980.

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

      William J. Chen, Jr., for appellant.

      Ronald L. Ogens for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

This is an appeal from a Decree entered October 24,1979, in the Circuit Court for Montgomery County. Appellant Mark Wallace had filed exceptions to the Report and Recommendation of the Domestic Relations Master. On October 10, 1979, the Court, sitting in equity, entered an Opinion and Order denying the exceptions. The October 24th Decree contained the following provisions, among others:

1. Appellant was ordered to pay $300 per month to appellee Ellen M. Wallace as permanent alimony, from June 1, 1979.
2. Appellant was found delinquent in payment of alimony pendente lite; the arrearage was $4,825.
3. Judgment was entered against appellant for the $4,825 arrearage.
4. Appellant was ordered to pay $150 per month to liquidate the alimony pendente lite arrearage.
5. Appellant was ordered to pay $956.34 suit money and court costs.
6. Appellant was ordered to pay $4,000 as a contribution for attorney’s fees incurred by appellee and the parties’ minor children.

Appellant presents the following questions for decision:

I. Did the chancellor err in awarding alimony to an adulterous spouse?
II. Did the chancellor improperly fix the amount of alimony payable to appellee?
III. Did the chancellor err in awarding counsel fees and costs to appellee, and in awarding her a judgment against him for arrearages in pendente lite alimony?

We find no error in the chancellor’s Decree, and so shall affirm.

The relevant facts are undisputed. The parties were married in New York City in 1967. They moved to Maryland, where appellant began to practice dentistry. Two children were born of the marriage, in 1971 and 1974. In December 1975 appellant hired Janet Honeycutt (the present Mrs. Wallace) as a dental assistant or secretary. In March 1976, without appellee’s consent, appellant left the marital home. In late April or early May he began an adulterous relationship with his present wife. Also in May 1976, appellee committed adultery with one Norman Fox. It is clear however that there was no evidence of adultery by either party prior to their separation.

On March 21,1977, appellee filed suit in the Circuit Court for Montgomery County to obtain a divorce a mensa et thoro, custody of her children, child support and alimony. The court entered an Order on September 22, 1977, granting appellee $550 per month alimony, custody and $150 child support per month per child, pendente lite.

After appellee filed her suit, appellant moved to Virginia, established residence and, on April 5, 1978, obtained a Decree of Divorce a vinculo matrimonii from the Circuit Court for Alexandria. The divorce was granted upon the ground that the parties had lived separate and apart, without interruption and without cohabitation for a period in excess of one year. Soon thereafter, upon advice of counsel, appellant ceased making payments of alimony pendente lite, and continued to pay for child support only.

In June 1978 appellee filed an amended Bill of Complaint seeking, inter alia, pendente lite and permanent alimony, counsel fees and suit money, a determination of property rights and an award of arrearages in unpaid alimony pendente lite. The amended bill did not itself seek a divorce of any type, but merely a declaration "that the only viable ground upon which the Decree of the Circuit Court of the City of Alexandria, Virginia, was entered, was that of having lived separate and apart, without cohabitation, for a period in excess of one year.” The Circuit Court referred the case to the Domestic Relations Master in August 1978. The Master conducted a hearing in December of that year, and, in June 1979, made his report to the court, which the court subsequently adopted in principal part, over appellant’s objections.

I.

Appellant first argues that the chancellor erred in awarding alimony in favor of appellee because the uncontroverted evidence established that appellee had engaged in adultery after the parties’ separation, but prior to the grant of an absolute divorce. Appellant grounds this argument solely upon the Court of Appeals’ holding in Courson v. Courson, 213 Md. 183 (1957), which appellant states as follows: a spouse who is guilty of marital misconduct by committing adultery after the parties’ separation but prior to an absolute divorce is not entitled to alimony. Appellant points out that the chancellor was aware of the Courson opinion, but that he distinguished the case, and based his award upon two later opinions, Flanagan v. Flanagan, 270 Md. 335 (1973) and Flood v. Flood, 24 Md. App. 395 (1974). The chancellor reasons as follows:

"The defendant would have this Court declare the plaintiff not entitled to an award of alimony due to her adulterous conduct after the separation of the parties. Although such a holding would be in accordance with the language and spirit of Courson v. Courson, 213 Md. 183 (1956), [sic] wherein adulterous conduct on the part of the wife after an a mensa divorce was found to terminate her right to alimony, this Court is swayed by the reasoning of the Courts in the more recent opinion in Flanagan v. Flanagan, 270 Md. 335 (1973) and Flood v. Flood, 24 Md. App. 400 [sic] (1974). As was stated in Flood, at 400:
Flanagan leaves unanswered what happens in a nonculpable divorce suit when the actions of the wife seeking alimony do not constitute the sole cause for the demise of the marriage, but there is fault on both sides which caused the separation of the parties, and the fault of the wife is an act of adultery. We can only read Flanagan as holding that in such circumstances the chancellor should consider the degree of blame as well as the relative guilt of the parties, and, in conjunction with other factors to be considered, decide upon a proper award. As quoted supra, Flanagan declares: "The greater degree of fault on the part of the wife demonstrated, the greater the need which she must show to entitle her to an award of alimony appropriate to the circumstances otherwise existing.” We note that the degree of fault on the part of the adulterous wife may be mitigated if the contributory fault of the husband is also an act of adultery.’
The defendant husband’s conduct in the case at hand was not as flagrant as that of the husband in Flood, nor was the wife’s conduct in the case at hand as comparatively innocuous as that of the wife in Flood (wherein the parties were separated for some twelve years before the wife engaged in an adulterous relationship); however, we nonetheless concur in the Master’s finding that the defendant husband must bear the lion’s share of fault in the case at hand.”

Like the chancellor below, we too think Courson does not control the result in this case, but for reasons which are not adequately explained by our decision in Flood. We shall examine Courson, Flanagan and Flood in some detail.

In Courson the wife had obtained a divorce a mensa et thoro on the ground of desertion and was awarded alimony. Thereafter, she committed adultery, and the husband sought and received a divorce a vinculo matrimonii on this fault ground. On appeal however, the divorce was denied on the ground of recrimination. Courson v. Courson, 208 Md. 171 (1955). Thereafter, the husband petitioned the court for modification of the alimony awarded his wife in the a mensa proceedings, arguing as grounds his wife’s adultery, proved in the a vinculo case. The lower court suspended the alimony subject to further order of the court, and the wife appealed. The Court of Appeals held that the wife was no longer entitled to alimony. Speaking for the Court, Judge Prescott stated:

"... there is very respectable authority that holds that a wife’s adultery is a defense to her claim for maintenance, notwithstanding the husband was likewise guilty of the same offense____
In this State, a limited divorce is one from bed and board. It grants unto the injured spouse the right to live separate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds. Alimony stems from the common law duty of a man to support his wife, and, in Maryland, has always been considered as outlined above. We hold the proper rule, supported by reason and authority, is that when a wife, who is living separate and apart from her husband due to his fault and who has obtained no more than a limited divorce from him, commits adultery, she forfeits her right to her husband’s support and the future payments of alimony. We agree with the New Jersey Court of Chancery in the case of G......v. G......, 56 A. 736, 740, when it said: 'Under a divorce a mensa et thoro the marriage relation still exists, and with it the duty of chastity. Such a divorce is not a license to the wife to indulge in sexual connection with another man, ***.’ Holding as we do, it afforded the wife no justification for complaint when the Chancellor suspended her alimony payments.”

In Flanagan, supra, the husband obtained a divorce a vinculo matrimonii under the then-existing "no fault” provision of Article 16, § 24, of the Annotated Code of Maryland, on the ground that the parties had lived separate and apart, without interruption or cohabitation, for five years. The wife sought alimony. Over the husband’s objections, the chancellor refused to consider testimony regarding the wife’s fault in the destruction of the marriage. The wife was awarded alimony and counsel fees, and the husband appealed. The wife argued that, in view of the fact that the a vinculo divorce had been granted on a "no fault” ground, "fault is not in any place an element of the case and therefore is not to be considered in awarding alimony.” The Court of Appeals disagreed: "A decision as to the proper award of alimony, while dependent upon the existence of grounds for divorce either a vinculo or a mensa, is separate and apart from that portion of the decree which grants the divorce.” 270 Md. at 338. After making passing reference to Courson, the Court observed, at 339-40:

"Throughout the years, our cases have said that when a wife’s fault precludes her from procuring a divorce she is prevented from obtaining alimony. Stein v. Stein, 251 Md. 300, 302, 247 A.2d 266 (1968); Keys v. Keys, 251 Md. 247, 247 A.2d 282 (1968) and the cases cited in each. This result was axiomatic as a spouse’s right to obtain a divorce, either a vinculo or a mensa, is a requirement for the obtention of alimony — ergo, no right to divorce, no right to alimony. But those cases are inapplicable here because 'no fault divorce’ changes the predicament in which she would otherwise find herself, as either party regardless of fault can secure a divorce if he or she can meet the requirements of one of the authorized nonculpatory grounds. On the other hand, the previous opinions of this Court mentioned earlier, which establish the standards for fixing alimony in suits based on culpability, are applicable and make facile our determination that fault is one of the several factors to be considered in properly awarding alimony in a nonculpatory divorce as well. This is logically so and there is nothing in the public policy of Maryland as expressed in the statute to the contrary.”

The Court then attempted to resolve "a more difficult decision”: the extent to which fault affects an award which accompanies a decree of divorce on no fault grounds. The Court stated, at 341-42:

"What is an appropriate award of alimony is governed by the principles of equity regardless of the grounds for divorce. Its resolution has always been one of weighing countervailing interests. While the parties’ economic circumstances are certainly of great importance, any of their conduct which contributed to the destruction of the marriage is also relevant to a determination of what is just. Willoughby v. Willoughby, 256 Md. at 593-94. As each factual situation is unique, it is obvious that the chancellor must be entrusted with wide discretion in awarding alimony. This would include those cases in which he is required to consider the culpability of the parties by taking into account the circumstances leading up to that point in time when the couple, who have been joined in marriage to become one, separate and become two once more, as well as the fault which destroyed the home. However, in those suits in which the actions of the party seeking such a pecuniary award constitute the sole cause for the demise of the marriage, and this wrongdoing consists of acts which are either adultery or abandonment, then, except in rare instances where there exist extremely extenuating circumstances, the award of any alimony would be an abuse of discretion. We have designated adultery and abandonment not on a whim, but because these are the only direct culpatory deeds that the Legislature has selected by name which either authorize or can ripen into grounds for an a vinculo divorce thereby indicating that it considers them the more heinous of the acts which can terminate a marriage. But, if there exists separation causing culpability other than adultery or abandonment on one side, or fault on both sides which caused the separation of the parties, the chancellor should consider the parties’ degree of blame as well as their relative guilt in those cases where applicable and, in conjunction with the factors quoted earlier in this opinion, decide upon the proper award.” (Footnote omitted.)

Finally, in Flood, supra, the husband’s adultery caused the demise of the marriage. The parties were voluntarily separated, though neither obtained an a mensa divorce. Some eleven years later the wife committed adultery. A year or so after that, or twelve years after the parties’ separation, the husband obtained an a vinculo divorce upon the no fault ground that the parties had been living separate and apart for at least five years. The husband appealed an award of permanent alimony presenting the single question whether a court could award alimony to a wife in a nonculpatory divorce action when it is shown that she committed adultery during the period of separation. This Court held that "in the facts and circumstances of the case before us, Wife did not forfeit her right to payment of alimony by her adulterous husband.”

We first reviewed and compared Courson and Flanagan, and we stated, in Flood, at 24 Md. App. 399-400:

"Thus, Flanagan clearly concerned acts which caused or contributed to the separation of the parties, and which, therefore, were necessarily committed before the marriage’s demise. Courson concerned acts committed after the separation of the parties was a fait accompli. Under Flanagan, if it is the wife’s act which is the sole cause for the demise of the marriage, and that act is adultery, she is precluded from obtaining alimony 'except in rare instances where there exist extremely extenuating circumstances.’ Under Courson, if the wife commits adultery after the separation, she ipso facto loses all right to alimony; not even the mercy of 'extremely extenuating circumstances’ is indicated in Courson. So, to this point of comparison, it seems that an adulterous act causing the demise of a marriage is to be treated with somewhat more leniency than an adulterous act committed after the separation and not contributing to it. But in either event, the general rule is that the wife is not entitled to alimony.
Flanagan leaves unanswered what happens in a nonculpable divorce suit when the actions of the wife seeking alimony do not constitute the sole cause for the demise of the marriage, but there is fault on both sides which caused the separation of the parties, and the fault of the wife is an act of adultery. We can only read Flanagan as holding that in such circumstances the chancellor should consider the degree of blame as well as the relative guilt of the parties, and, in conjunction with other factors to be considered, decide upon a proper award. As quoted supra, Flanagan declares: 'The greater degree of fault on the part of the wife demonstrated, the greater the need which she must show to entitle her to an award of alimony appropriate to the circumstances otherwise existing.’ We note that the degree of fault on the part of the adulterous wife may be mitigated if the contributory fault of the husband is also an act of adultery.
The holdings of Courson and Flanagan, read together, may not be disparate, but they are anomalous. Under Flanagan, a wife whose act of adultery, committed before the fact of separation, contributed to it, may be awarded alimony if the husband is also guilty of wrongdoing contributing to the separation. But if she commits adultery after the fact of separation, she may not, under Courson, receive alimony in any event.” (Footnote omitted.)

Upon review of the facts in the case, we then wrote, at 403:

"We would have no difficulty arriving at a resolution of the question along the path charted by Courson. Like Courson, here the fault of the husband caused the demise of the marriage. Like Courson, here the wife committed adultery after the fact of the separation of the parties. That in Courson the parties were legally separated by an a mensa divorce where here they were voluntarily separated, but not under legal aegis, is a distinction without a difference. If all we had to look to was Courson, we would be obliged to hold the Wife forfeited her right to Husband’s support and the payment of alimony. But we have Flanagan also, and its light casts shadows on Courson’s path. For reasons we have indicated, we are hard pressed to apply the strict rule of Courson in the light of Flanagan. We think that Flanagan tempers Courson’s rule, sub silentio, or by implication, or by practical necessity in the interest of justice, at least, as it may have been applicable in the factual posture of the case here reviewed.”

Appellant argues that Courson, not Flood, must control our decision in this case. He suggests that the Flood decision "must be viewed under its particular facts and circumstances, and that it did not announce a new general principle of law in conflict with Courson.” Appellant further suggests that "the Chancellor erred in applying the Flood decision to the facts in this case wherein the wife engaged in adultery shortly after the parties’ separation, and where there is no evidence whatsoever of any of the outrageous conduct that prompted this Court in Flood to relax the Courson rule.” However, we find Flood controlling and Courson inapplicable here. Appellant appears to have been misled by our statements in Flood, at 399-400, that "[u]nder Courson, if the wife commits adultery after the separation, she ipso facto loses all right to alimony”; and "if she commits adultery after the fact of separation, she may not, under Courson, receive alimony in any event.” Apparently, this misleading impression was not dispelled by our later statement in Flood that "[w]e think that Flanagan tempers Courson’s rule, sub silentio, or by implication, or by practical necessity in the interest of justice”. But the fact is that Courson was written prior to the enactment of the "no fault” provision (as opposed to the voluntary separation provision) of Article 16, § 24 in 1969. On the other hand, in Flood, which was written in 1974, we recognized that a spouse’s ability to obtain a "no fault” divorce preserved her right to obtain alimony, ceteris paribus, notwithstanding the fact of her adultery during the parties’ separation.

To fully appreciate Courson’s import — and limitations — one must understand the reasoning which underlies the result. A careful reading of the case reveals that its rule is grounded upon the relation between alimony and divorce: specifically, the way in which the right to the former depends upon the right to the latter. As the Court of Appeals stated in Courson:

"... without exception, this Court has held that in a suit for alimony alone, the wife must allege and prove facts sufficient in themselves to support a decree for a divorce a mensa or a vinculo. In other words, in order that she be entitled to alimony, she must show she is entitled to either a partial or an absolute divorce. Among the many cases so holding, are: Staub v. Staub, 170 Md. 202, 208, 183 A. 605; Hood v. Hood, 138 Md. 355, 361, 113 A. 895; and Polley v. Polley, 128 Md. 60, 63, 97 A. 526.
We shall quote briefly from several cases holding to like effect: The Court '*** can not allow itself to receive any matter as a sufficient ground for granting alimony alone, which would not be a sufficient foundation *** for granting a divorce a mensa et thoro together with its incident alimony ***’. Outlaw v. Outlaw, 118 Md. 498, 503, 84 A. 383; '*** alimony alone can only be granted upon grounds sufficient to justify a divorce a vinculo or a mensa.’ Polley v. Polley, supra; and '*** there can be no allowance for alimony where there is no right to a divorce ***.’ Melson v. Melson, 151 Md. 196, 205, 134 A. 136.” 213 Md. at 186-87.

Thus, Courson’s holding may be explained by noting that in that case the wife’s adultery caused her to forfeit any and all rights to an a vinculo divorce which she may have had.

Under these circumstances, the fault/no fault distinction is crucial. In Courson, adultery assumed significance only as it affected the wife’s right to obtain a divorce. In Flood, on the other hand, the right to a no fault divorce existed notwithstanding the wife’s adultery during the parties’ separation. And since the act did not destroy the right to a divorce, it did not destroy the right to alimony. In the case subjudice, the facts are in all important aspects identical to those in Flood. Appellant’s receipt of a divorce a vinculo matrimonii in this case, on nonculpable grounds, was a decree as much in appellee’s favor as appellant’s. Flanagan, supra at 338. At the time it was entered, appellee was equally entitled to receive one upon her own initiative. So, in this case, as in Flood, since appellee’s adultery did not in fact foreclose her right to obtain an a vinculo divorce, it did not foreclose her right to obtain alimony either.

In Flood, it is not so much that Flanagan tempered Courson, but that the two cases apply under entirely different circumstances. In view of Mrs. Flood’s right to obtain a divorce, we think Courson did not apply at all. And, indeed, since Flanagan suggests that, in a nonculpable divorce, adultery affects the right to alimony only insofar as the adultery contributed to the destruction of the marriage, it is hard to see how the wives’ adultery, in Flood and this case, could have any bearing whatever upon the alimony award. In both cases the meretricious acts occurred after the destruction of the marriage. Unless these acts can be shown to have "related back” to that destruction, they would seem to have no place in the Flanagan test.

Therefore, to reiterate: the right to receive alimony is predicated upon the right to receive a divorce. In this case, appellee’s acts of adultery, committed after the parties’ separation but prior to the grant of an absolute divorce, did not foreclose her right to receive alimony. The parties were in fact divorced upon a "no fault” ground. When the divorce was entered, both were equally entitled to receive it, and it was as much in appellee’s favor as appellant’s. This being so, Courson’s rule is inapplicable; appellee’s adultery did not automatically bar her right to receive alimony.

II.

Appellant next contends that the chancellor erred in making an award of alimony in this case, (a) because of the incomplete and inadequate record of the appellant’s financial affairs and (b) because the fault of the wife was not appropriately weighed by the chancellor in making an award of alimony. Appellant draws our attention to the fact that the master found that a "full and complete audit” of appellant’s "business, professional, personal and otherwise” activities was required, and that the master concluded that "there is a need for such an audit, together with the conclusions of the auditor, prior to the final assessment of both alimony and child support.” The chancellor found an audit unnecessary, and made his determination and award based upon the record presented by the master.

In Quinn v. Quinn, 11 Md. App. 638 (1971), this Court stated, at 643-44:

"It was held in Waters v. Waters, 191 Md. 436, that in determining an award of alimony and whether, under the statute, the wife’s income 'is insufficient to care for her needs,’ the court should consider the husband’s wealth and earning capacity, the assets and income of the wife, the station in life of the parties, their age, physical condition, and ability to work, the length of time the parties lived together, the circumstances leading up to the divorce, and the fault which destroyed the home. To the same effect, see Burton v. Burton, 253 Md. 233; Newmeyer v. Newmeyer, 216 Md. 431. The husband’s overall financial ability to support (and not merely his current income), and the wife’s need for support are controlling factors. Willoughby v. Willoughby, 256 Md. 590; Pet v. Pet, 238 Md. 492; Gosnell v. Gosnell, 208 Md. 179; Lopez v. Lopez, 206 Md. 509. In view of the variable factors to be considered in determining the alimony award, no fixed rule exists whereby the amount of the award is based on a percentage of the husband’s wealth or income. Bowis v. Bowis, supra. Because each factual situation in determining an award of alimony is unique, making inappropriate the application of any mechanical or rigid formula, the Chancellor is necessarily entrusted with wide discretion which should not be disturbed on appeal unless it was arbitrarily used or his judgment clearly wrong. Blumenthal v. Blumenthal, 258 Md. 534; Willoughby v. Willoughby, supra.

And see Colburn v. Colburn, 15 Md. App. 503 (1972).

Upon review of the record in this case we find no error in the chancellor’s award. In the first place, the chancellor determined that appellant could reasonably be expected to pay alimony of $300 per month, and there was ample evidence to support that determination. The uncontroverted evidence was that appellant would continue to have an income far in excess of the $623.17 per month which he reported on his financial statement. Appellee presented the testimony of a certified public accountant that appellant had made cash withdrawals from his dental practice in excess of $40,000 during 1977, and appellant presented no evidence to contradict the CPA’s testimony. The CPA’s further testimony, and the testimony given by appellant himself, cast serious doubt upon the accuracy of appellant’s financial report to the court. But, without making an exact finding as to dollar amount, the chancellor was certainly entitled to determine that appellant’s income was far in excess of that reported, and this was all that was necessary in this case.

In the second place, there was also ample evidence from which the chancellor could determine that "the fault which destroyed the home” was entirely appellant’s. Indeed, the record is undisputed that appellant left the marital home; and appellant presented no evidence whatever to suggest the way in which appellee was to blame for his departure. Under the circumstances of this case, appellee was not required to prove desertion, but only the facts which led up to the separation and subsequent destruction of the marriage, and this she did. Timanus v. Timanus, 178 Md. 640 (1940). At any rate, the chancellor found that appellant deserved the "lion’s share” of the fault, and we think it implicitly clear from this that he did consider the parties’ relative responsibility for the destruction of the marriage.

III.

Finally, appellant argues that the chancellor erred in awarding a judgment and costs, including attorney’s fees, against him. Specifically, appellant challenges the entry of a judgment against him for $4,825 unpaid alimony pendente lite on the grounds raised earlier, i.e., that under the facts in this case appellee’s adultery deprived her of the right to alimony. Our holding in Part I of this Opinion, that appellee was entitled to alimony, disposes of this issue.

Appellant also alleges error to the chancellor’s award of costs and suit money in the amount of $956.34, and to his order that appellant contribute $4,000 on account of legal services rendered to appellee and on behalf of the parties’ minor children.

Counsel fees are ordinarily awarded in a divorce case according to the ordinary factors of labor, skill, time and benefit, as well as the financial resources of the party charged. Quinn v. Quinn, supra. The amount of the award of counsel fees is generally within the discretion of the trial court, and the award should not be disturbed unless the trier of fact has exercised his discretion arbitrarily or his judgment was clearly wrong. Danziger v. Danziger, 208 Md. 469 (1955); Sody v. Sody, 32 Md. App. 644 (1976).

Appellant supports this allegation of error with the same argument raised earlier, i.e., that the award was error in view of the "substantial discrepancies and in the absence of credible evidence with respect to the husband’s net worth and earning capacity.” Again, we think our decision in Part II of this Opinion disposes of this issue. We emphasize once again that in our view there was sufficient evidence on the record to support the chancellor’s findings, notwithstanding any discrepancies in the testimony which may have existed, and which, at any rate, appellant did nothing to explain or dispel.

In closing, we note that appellee has filed a petition to this Court requesting that we enter an Order assessing counsel fees of $4,940 in her fayqr in connection with this appeal. Appellee’s motion is denied. As in Staley v. Staley, 25 Md. App. 99, 114 (1975),

"We shall remand this case in order to permit the trial court to make a proper allowance for counsel fees for prosecuting this appeal. In order to arrive at an appropriate determination, the trial court shall take further testimony in regard to the financial status of the parties, their respective needs, the amount of legal services rendered, and the reasonable value of such services.”

Judgment affirmed.

Case remanded for further proceedings as to counsel fees.

Appellant to pay the costs.

      . It is unclear from the record whether in fact appellee was ever granted a divorce a mensa et thoro.

      . It is important to have clearly in mind the particular "no fault” provision to which Flanagan refers. Article 16, § 24 lists two nonculpatory grounds for divorce which have both been labeled "no fault,” (see Flanagan, supra at 337, and cases cited therein) though they differ from one another in a crucial way. Article 16, § 24 currently provides, in part:
      Upon a hearing of any bill for a divorce, the court may decree a divorce a vinculo matrimonii for the following causes, to wit: ... fifthly, when the husband and wife shall have voluntarily lived separate and apart, without cohabitation, for twelve consecutive months prior to the filing of the bill of complaint, and such separation is beyond any reasonable expectation of reconciliation; ... seventhly, on the application of either party when the husband and wife have lived separate and apart without any cohabitation and without interruption for three years. A plea of res adjudicata or of recrimination with respect to any other provisions of this section shall not be a bar to either party obtaining a divorce on this seventh ground.”
      While obtention of an a vinculo divorce upon the fifth ground requires proof that the parties voluntarily agreed to separate for the prescribed period, obtention of a divorce upon the seventh ground is available to either party "unilaterally,” solely by virtue of separation for the prescribed period, even in the absence of agreement, and regardless of fault.
      The fifth ground is also commonly referred to as voluntary separation. The first statute in this State authorizing the grant of a divorce a vinculo matrimonii in cases of voluntary separation was passed in 1937. (Acts, ch. 396, effective June 1, 1937). It may therefore be said that "no fault” in Maryland predates the Courson decision. However, when Flanagan and Flood refer to the effect of the subsequent availability of a "no fault” divorce upon the validity of Courson’s holding, they refer not to the fifth ground (voluntary separation) hut to the seventh ground (no fault) listed in Article 16, § 24. That provision was first added to § 24 by Laws of Maryland 1969, ch. 656, effective May 14, 1969.

      . See footnote 2, supra.

      . As an aside, we note that since the inquiry focused on the propsective alimony recipient’s right to a divorce, the husband’s inability to obtain an a vinculo divorce was of no consequence.