author: Powers, J.,

text:
    MERVIN L. BLADES & SON, INC. v. LIGHTHOUSE SOUND MARINA AND COUNTRY CLUB et al.
    [No. 1096,
    September Term, 1976.]

      Decided September 13, 1977.

      The cause was argued before Moylan, Powers and Moore, JJ.

      Daniel M. Long, with whom was Henry P. Walters on the brief, for appellant.

      Raymond S. Smethurst, Jr., with whom were Sally D. Adkins and Adkins, Potts & Smethurst on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

Mechanics’ liens in Maryland were transformed into little more than debt claims when the Court of Appeals, following several due process rulings of the United States Supreme Court, decided Barry Properties v. Fick Bros., 277 Md. 15, 353 A. 2d 222, on 10 February 1976. The Court prefaced its discussion of the issue raised in that case with this explanation, at 19:

“The basis of the present attack — that the imposition of a lien without notice and an opportunity for a prior hearing, as the Maryland statute authorizes, deprives the owner of his property without procedural due process — emanates from a quartet of recent Supreme Court decisions which address the question of whether certain statutory prejudgment creditor remedies are consonant wTith the due process clause of the Fourteenth Amendment. In the order they were decided, those cases are: Sniadach v. Family Finance Corp., 395 U. S. 337, 89 S. Ct. 1820, 23 L.Ed.2d 349 (1969) (garnishment of wages); Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972) (replevin of personalty); Mitchell v. W. T. Grant Co., 416 U. S. 600, 94 S. Ct. 1895, 40 L.Ed.2d 406 (1974) (sequestration of personalty pursuant to vendor’s lien); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601, 95 S. Ct. 719, 42 L.Ed.2d 751 (1975) (garnishment of bank account).”

After a thorough and exhaustive analysis of the constitutional principles expressed in the cited opinions of the Supreme Court, and of the Maryland statute, the Court said, at 33:

“We conclude, therefore, that, because it allows prejudgment seizures without notice, a prior hearing or other sufficient safeguards, and cannot be justified under the extraordinary circumstances exception, Maryland’s mechanics’ lien law is incompatible with the due process clauses of Article 23 and the Fourteenth Amendment.”

The mechanics’ lien laws of Maryland, as they existed before the decision in Barry Properties, were found in Code, Real Property Article, Title 9, Subtitle 1, and were codified as §§ 9-101 to 9-111. Procedural implementation of the statutory law was found in the BG Rules.

Briefly summarized, the law, the numerous interpretive decisions, and the BG Rules, provided that a lien attached to a building and to the land covered by it, and as much immediately adjacent land of the same owner as may be necessary for the ordinary and useful purposes of the building, for work done and for materials furnished for or about the building. The lien' attached at the time the work was done or the materials were furnished, and had priority over any mortgage, judgment, lien, or encumbrance attaching to the building or ground subsequent to the commencement of the building. All valid mechanics’ liens on any building and ground shared equal priority. §§ 9-101, 9-102.

To preserve his lien, a claimant was required to file a claim or statement of his demand in the office of the clerk of the circuit court before the expiration of 180 days after the work was finished or the materials furnished. What the claim was required to set forth was specified in § 9-105 (c i.

The final step, and the first judicial step, followed as prescribed in § 9-106. Unless within one year after the claim was filed, the claimant brought an equity suit to enforce it, the lien expired. If a suit to enforce the lien was timely filed, the lien remained until the case was concluded. The owner of the property, or other person interested, could at any time file an equity suit to compel the claimant to prove the validity of the lien. A claimant’s suit to enforce his lien invoked the special statutory in rem jurisdiction of the equity court. Trial of such a suit could involve one or more of several issues, such as whether proper notice of intent to claim the lien was given, if required by § 9-103; whether the lien was preserved beyond its original life of 180 days by the timely filing of a claim; whether the claim as filed satisfied the requirements of § 9-105 (c); or whether the claimant is entitled to the full amount claimed. A finding of a valid lien in any amount normally resulted either in payment, so as to discharge the lien, or in a decree for sale of the property to satisfy the lien. Rule BG73.

It should be noted that the entire proceeding, from the creation of the lien to its discharge, was in rem, and even a final judgment after trial did not result in an in personam money judgment against any party. Indeed, § 9-109 explicitly preserved “the right of any person, to whom any debt is due for work done or material furnished, to maintain any personal action against the owner of the building or any other person liable for the debt.”

Having held in Barry Properties that Maryland’s mechanics’ lien law violated due process, the Court of Appeals looked for severable salvage, to “preserv[e] enough to have a law capable of fulfilling the principal legislative intent.” At 36-37. The Court said, at 37:

“We think that this can be accomplished by excising that portion of the statute which purports to create a lien from the time work is performed or materials furnished to the time a lien is established by judicial determination in a proceeding sufficient with respect to due process. We therefore hold that under the current statute there can be no existing lien on property until and unless the claimant prevails either in a suit to enforce the claimed lien or in some other appropriate proceeding providing notice and a hearing (i.e., a declaratory judgment action). What the claimant, be he a general contractor or subcontractor, possesses up to that point in time is a chose in action. Under this ruling, we believe, the statute continues to effectuate the primary legislative intent, yet the owner is not deprived of a significant property interest without due process since the owner’s interest is not impinged upon until after he is provided with notice and an opportunity for a hearing. It follows that § 9-107 (b), to the extent that it grants mechanics’ liens ‘priority over any mortgage, judgment, lien or encumbrance attaching to the building or ground subsequent to the commencement of the building’ but prior to the time the lien is established by a judicial determination, is also null and void since to hold otherwise would permit contractors to seize with their left hand what we have said they cannot grasp with their right.”

It will be seen that the very valuable right which was preserved was the right of a creditor for labor or materials to proceed in rem against improved property even though he could show no privity of contract with the owner, nor personal liability of the owner to him.

It will be seen also that the lien concept in the law is otherwise virtually swept away. The claimant has no lien until he has gone to court and has prevailed in what would be, in essence, a debt suit at law, without a jury. Even then he achieves no priority over any existing mortgage, judgment, lien, or other encumbrance. He may or may not share pro rata with holders of other mechanics’ liens, already established.

Any claimant who is able to show personal liability of the owner to him may well prefer to obtain an in personam money judgment in a suit at law. The judgment would be an immediate lien against all real estate of the owner, and would afford other means of collection as well. A potential mechanics’ lien claimant who chooses to invoke the now curtailed benefits of the statute must still comply with the various procedural prerequisites, all within the specified time periods. Barry Properties, supra, at 37-38.

We have indulged in this extensive discussion of the mechanics’ lien law, both before and after the Court of Appeals in Barry Properties pointed out its substantial unconstitutionality, because of our deep concern for the predicament in which the appellant in this case finds itself.

Mervin L. Blades & Sons, Inc., the appellant, on 23 December 1975, filed in the Circuit Court for Worcester County, in equity, an initial pleading entitled “Bill To-Enforce Mechanics’ Lien”, naming as defendants Montego Bay Development Corporation, Wisterco Investments, Inc., and William R. Bloxom, all of whom it described as “owners or reputed owners, operating and commonly designated as Lighthouse Sound Marina and Country Club, now succeeded in interest by Lighthouse Sound Country Club, Inc.” The complaint also named the latter corporation as a party defendant.

The ultimate disposition of the case in the Circuit Court for Worcester County was that the court, Daniel T. Prettyman, Judge, entered an order on 1 October 1976 sustaining an amended demurrer to the bill, without leave to amend. This constituted a final judgment, Maryland Rule 373 d., and from it Blades took this appeal.

Blades sought in its complaint to enforce a mechanics’ lien claim in the amount if $672,809.56. It alleged that pursuant to a contract with Montego, Wi stereo, and Bloxom, it had furnished materials and labor in connection with the construction of “a main core and tennis court building or buildings”, as described in the contract, which was attached to and incorporated into the complaint as Exhibit A. For a legal description of the real estate on which the building or buildings were erected, the complaint referred to a deed, a copy of which was a part of its mechanics’ lien claim. The complete lien claim, which the complaint alleged was filed in the office of the clerk of the circuit court on 23 December 1974, was attached to and incorporated into the complaint as Exhibit B. The lien claim made no reference to a contract.

The complaint went on to allege that Blades had fully performed its obligations under the contract; that it furnished materials and performed work within 180 days of filing its lien claim; that no payment had been made; and that the amount due it was $672,809.56, with interest.

In response to the complaint filed by Blades, all defendants appeared by counsel and demurred, on the ground that the mechanics’ lien laws unconstitutionally violated due process. While the demurrer was pending, the opinion in Barry Properties came down. All parties conceded that under that decision, Blades was entitled to proceed to “establish” its lien, the defendants then having notice and the opportunity to be heard. The demurrer was then overruled. All defendants filed an “Amended Demurrer”, attacking the complaint as insufficient because the lien claim, a part of and the foundation for the complaint, failed to meet the requirements of § 9-105.

The issue was submitted to the court on the pleadings, including a reply to the amended demurrer. As we have said, the court, on 1 October 1976, entered an order that the amended demurrer of the defendants be sustained, without leave to amend by the plaintiff. The order was appended to an Opinion, in which Judge Prettyman explained the reasons for his ruling. Pointing out that the change made by Barry Properties was that the lien, instead of attaching when the work was done or the materials furnished, did not attach until it had been “established” in an adversary judicial proceeding, the Opinion noted that the Court of Appeals, discussing the remedy still available, said, at 37-38:

“We add, however, in case there be any doubt, that contractors, in order to obtain and enforce a lien, must still comply with the various procedural prerequisites — including, but not limited to, furnishing notice of intent to claim a lien if the claimant is a subcontractor, filing a claim, and instituting appropriate legal actions, all within the specified time periods.”

We turn to the lien claim filed by Blades on 20 December 1974, to see whether it met the requirements of § 9-105 (cl, which at that time said:

“(cl Contents of claim. — Every claim shall set forth:
(1) The names of the claimant, the owner or reputed owner of the building, and if the contract is made by the claimant with the contractor, architect, or builder, the name of the contractor, architect, or builder;
(2) The amount or sum claimed to be due, the nature or kind of work or the kind and amount of materials furnished, and the time when the materials were furnished or the work done; and
(3) The locality of the building, and a description adequate to identify the building.”

The claim sufficiently set forth the names of the claimant and of the owners or reputed owners of the building. It also set forth the amount or sum claimed to be due, and went on to assert that the claim was made

“* * * for materials furnished, including but not limited to fill and grading materials, grading and hauling and services rendered, and all other improvements rendered at the instance of the said owners, or reputed owners, at the particular time and of the nature, kind and amount, and for the prices set forth in the bill of particulars annexed hereto and which materials have been furnished within less than six months before the filing of this claim.”

One would naturally look to the annexed bill of particulars to determine the “nature or kind of work or the kind and amount of materials furnished”, and “the time when the materials were furnished or the work done”, as required by § 9-105 (c)(2).

Other than a copy of the owners’ deed, the only thing annexed to the claim was a single sheet of paper, on the billhead of Mervin L. Blades & Son, Inc., billing Lighthouse Sound Country Club as follows:

September Requisition Billed 9/27/74 $ 224,700.00
October Requisition Billed 10/31/74 425,000.00
Finance Charge on Sept. Balance 3,370.40
Sub Total Oct. Balance 653,070.50(sici
Finance Charge on October Balance 9,796.06
Sub Total Nov. Balance 662, 866.56
Finance Charge on November Balance 9,943.00
Total Due Dec. Balance 672,809.56”

The annexed bill contains no suggestion of the nature or kind of work done. There is no itemization, not even a generalization, of the kind and amount of materials furnished. The bill fails to state any time when materials were furnished or work done, although we may speculate that the September and October requisitions covered recent transactions.

For compliance with Subsection (c) (3) of § 9-105, one would also naturally look to the claim itself or to some annexed document for the locality of the building, and for a description adequate to identify the building. The claim is stated to be

“* * * against all that construction of a building or buildings and all that ground therewith, filled, graded or paved, or otherwise covered by the said construction and so much other ground immediately adjacent thereto and belonging, in like manner, to the owners of such construction and filled, graded or paved ground, as may be necessary for the ordinary and useful purposes of said constructed building * *

Nothing about any building is contained in any annexed document. The claim itself, by using the phrase, “a building or buildings”, suggests that there might have been one building, or more than one, but it provides no answers. There is utterly no description of any building, from which anyone could undertake to identify a building. There is a suggestion that there could have been work involving filling, grading, or paving of ground, but if there was, there is no information relating such work to any building.

For locality of a building or buildings, the claim discloses only that it or they are located somewhere on 770 acres of land described in the annexed deed. Since neither the owners nor the claimant have designated boundaries of a lesser area, § 9-102, Rule BG76, Blades presumably claims that the entire 770 acre tract is either covered by the buildings, or constitutes immediately adjacent land necessary for the ordinary and useful purposes of the buildings. As Judge Prettyman said in his Opinion, he could not go on this large acreage and determine what building or buildings had been constructed by Blades, much less order a sale to satisfy the claimed lien.

The lien claim, as filed, did not comply with the requirements of the law. It could not have been “enforced” under the former law. It cannot be “established” under the present law. An almost parallel set of facts, involving the same property but a different claimant, was presented in Scott & Wimbrow v. Wisterco Inv., Inc., 36 Md. App. 274, 373 A. 2d 965 (1977). The lien was claimed against “structures at Lighthouse Sound”, and against land described only by reference to the same deed. We said, at 278:

“Given this description as the foundation of Wimbrow’s bill of complaint to enforce the mechanics’ lien, we need hardly go beyond it to hold that the chancellor was correct in sustaining appellees’ demurrer to the bill.”

We also discussed further defects, primarily the failure of the claim in that case to set forth the nature and kind of work or the kind and amount of materials furnished. What we concluded in Scott & Wimbrow is equally applicable here. We said, at 280:

“The demurrer was obviously properly sustained for failure to describe the building or buildings, for failure to situate them in a reasonable locale, and for failure to describe the nature or kind of work or the kind and amount of materials furnished.”

Appellant argues further that its lien claim and its bill to enforce the claim are readily amendable, except to enlarge the claim or materially alter the description of the property. There are amendment rights as to each, but we do not agree that a fault or defect in the lien claim can be cured by an allegation (original or amended) made in an equity pleading filed a year later. The rights to amend are stated in the statute, then § 9-110, and in the Rule, then and now BG72.

We consider it necessary to say only that an amendment of the lien claim which would set forth the locality of the building, or buildings, and a description adequate to identify them, would materially alter the description of the property against which the lien claim was recorded, Scott & Wimbrow, supra.

What we have said means that the lien claim was incurably defective. Judge Prettyman emphasized that the demurrer was being sustained because of the defects in the claim. He did not discuss the bill of complaint as a pleading. It is significant that the record discloses no request at any time for leave to amend. And, of course, since the 1 July 1974 revision of Maryland Rule 320, amendments of pleadings are made without leave of court, subject only to an opponent’s motion to strike.

Although it seems evident that no amendment of a pleading could transform a bad lien claim into a good one, we think that in the interests of justice, appellant should have, for a period of 30 days from the date of our mandate, the opportunity, if it so desires, to amend its pleading to seek an in personam money judgment against the appellees, including the right to request transfer of the case to the law side of the court, under Maryland Rule 515.

Order of 1 October 1976 modified by deleting the phrase “without leave to amend by the plaintiff’ and as modified, affirmed.

Case remanded for further proceedings.

Appellant to pay costs.

      . In Landover Assoc. v. Fabricated Steel, 35 Md. App. 673, 371 A. 2d 1140 (1977), Judge Lowe, for this Court, discussed, at 674-80, the effect of the Barry Properties decision on the facts of that case.:

      . If the work was done or the materials were furnished under a contract with any person other than the owner of the land or his agent, an earlier notice of intention to claim a lien was required by ijjj 9-103 and 9-104.

      . In Barry Properties, at 37, n. 13, the Court pointed out that the issue of constitutionality of § 9-107 (a), pertaining to priority among holders of mechanics’ liens, was not before it, and was not decided.

      . The date alleged was an error. The lien claim was in fact filed on 20 December 1974. The correct date was before the lower court. There is no contention, however, that the equity proceeding filed on 23 December 1975 was not timely under § 9-106.

      . No question of the right of the defendants to demur again, on different grounds, has been raised.

      . More than one square mile, and more than double the entire area of the Principality of Monaco.

        . The mechanics’ lien laws were substantially changed, to conform with the constitutional requirements of Barry Properties, by Acts of 1976, ch. 349. The BG Rules were also substantially revised, for the same reason, effective 9 August 1976.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    KENNETH Y. SMITH v. BIRTIE SUE SMITH
    [No. 1130,
    September Term, 1976.]

      Decided September 13, 1977.

    The cause was argued before Gilbert, C. J., and Moylan and Melvin, JJ.

      Bert W. Kapinus for appellant.

      Paul R. Wiesenfeld for appellee.
   Melvin, J.,

delivered the opinion of the Court.

By decree entered 30 September 1976, in the Circuit Court for Prince George’s County, the appellee, Birtie Sue Smith, was divorced a mensa et thoro from the appellant, Kenneth Y. Smith. The third paragraph of the decree further provided:

“... that the Defendant KENNETH Y. SMITH is in possession of the personal property of the Plaintiff BIRTIE SUE SMITH in the amount of Four Thousand Four Hundred Dollars ($4,400.00) which he is to return to the Plaintiff at the rate of One Hundred Dollars ($100.00) per month commencing November 1,1976.”

Kenneth presents one question on appeal:

“Whether in light of the evidence presented the Court had the power to award appellee the sum of $4,400.00 as her share of the parties’ personal property?”

The parties were married on 12 August 1973. No children were born of the marriage. At the time of the marriage, the appellee was a commercial airline hostess with a salary of $13,000. Appellant operated a karate studio and, according to appellee, made approximately $18,000 annually. He also owned a three-bedroom house in Bowie, Maryland, (encumbered by a mortgage of approximately $35,000.) where the parties lived after the marriage.

Like most marriages, this one began happily; like many, the happiness was shortlived. Within six months marital storm clouds had gathered. In February 1974, appellant left the home for approximately one month, returned for one week and left again. There followed a period during which appellant intermittently left and returned for short periods. As nearly as we can determine from the record the final separation occurred in April 1975. After that time appellant did not return to his home until after appellee had been evicted by court proceedings that he instituted against her in October 1975.

The $4,400.00 awarded appellee by the divorce decree represented the following sums she claimed were due her from the appellant:

1) $2,700. Appellee gave this sum to appellant immediately after the parties returned from their honeymoon for appellant’s use in moving his karate studio from Bladensburg, Maryland to a shopping center in Alexandria, Virginia. According to the appellee, the appellant “wanted to move it near my job [at the National Airport] so he could take me to work .... I didn’t have a car”. She testified that although nothing was said between them at the time she gave him the money, it was her “understanding” that appellant “would give me certain shares and make me one of the officers in the corporation”. Appellant denied any such “understanding”. He testified, however, that he “felt some sense of responsibility to give her the money back” although he “never thought that [he] owed her the money”. He explained:

“She gave me the money to help me, to help the business, and the business didn’t do what it was expected to do. And, yes, I wanted to give her some of the money. The marriage had — whether it lasted or not I had intentions of paying her what I could.”
“Q. Is it your position the $2700, in fact, was not a loan to you?
“A. No, it was not.
“Q. You felt some sense of responsibility to give her the money back?
“A. Yes.”

2) $1,000. In December 1973, Appellee contributed this sum toward the total bill of $2,000 for the installation of a fireplace in the bedroom of the marital home owned by appellant. They both “picked out” the fireplace.

3) $200. Appellee contributed this sum toward the expense of installing a patio at the home. She said appellant “wanted to make the house look good. We needed a patio”.

4) $300. Appellee sold her Triumph automobile for “about 300 hundred”. She sold it because appellant “said he would take me to work. I wouldn’t need a car. I wasn’t able to make it to the airport and the Triumph wasn’t in good condition. Wasn’t able to make it”. She turned over the proceeds to appellant. She said she had “no idea” what use he made of the money. He did, however, transport her to and from work in his own car until the marriage began breaking up in February 1974.

5) $200. In June 1974, the parties received an income tax refund of $2,000.00 as a result of their joint return. When the $2,000 check was received, payable to both parties, appellee endorsed her name and gave the check to appellant. There is nothing in the record to indicate any understanding or agreement between the parties as to any particular division of the proceeds at the time she gave the check to her husband. She testified that she felt entitled to one-half ($1,000.00) and that appellant had only given her $800.00. The record is silent as to when she received the $800.00 or the circumstances surrounding its receipt.

I

The chancellor based his monetary award upon appellee’s sixth prayer for relief contained in the bill of complaint: “That this Honorable Court determine the rights of ownership of personal property of the parties hereto”. In effect, the final decree determined that appellee “owned” $4,400.00 that was “in the possession of’ the appellant, who was ordered to return it to its rightful owner.

It is well settled in this state that an equity court, sitting as a divorce court, does not sit in exercise of its ordinary chancery jurisdiction, and would be without power to determine the parties’ ownership of personal property or to apportion it, but for a grant of such power by the Legislature. See Blumenthal v. Monumental Security Storage, Inc., 271 Md. 298, 303, 316 A. 2d 243 (1974); Gebhard v. Gebhard, 253 Md. 125, 129-30, 252 A. 2d 171, 173 (1969) and cases there cited. The statutorily granted power to award personal property in a divorce case is contained in two statutes: Code (1974), Courts Article, § 3-603 (c) and Code (1957,1973 Repl. Yol., 1976 Cum. Supp.) Art. 16, § 25.

It is clear that a decree such as was passed in the instant case can not be based on Courts Article, § 3-603 (c) (enacted by Chapter 220 of the Acts of 1947 formerly codified as Article 16, § 38 in the 1951 Code and Article 16, § 29 in the 1957 Code). In this case the appellee does not seek to establish her ownership of, or claim to, personal property, nor does she seek the sale of any such property in order that the proceeds thereof may be divided. She seeks money — not tangible property. Moreover, the money she seeks is, so far as the evidence shows, no longer “in the possession of’ the appellant. The more fundamental weakness in appellee’s claim, however, lies in the fact that such a monetary claim simply is not warranted by the terms of the statute. This was the holding in Brucker v. Benson, 209 Md. 247, 121 A. 2d 230 (1956). In Brucker, the wife claimed from her former husband an amount she alleged was equivalent to her total contributions to a matrimonial, pooled fund used to buy personal property. The money allegedly contributed by the wife came from her earnings subsequent to the marriage. The Court of Appeals, in an opinion by Chief Judge Bruñe, said:

“. . . We find it unnecessary at this point to go into the vagueness of the testimony because there is a more fundamental weakness in the appellant’s claim.
“This is that such a monetary claim simply is not warranted by the terms of Section 38 of Article 16 [now Courts Article, § 3-603 (c)], which we regard as controlling. By its express terms, its operation is limited to the determination of questions arising between the parties in connection with the ownership of personal property held, possessed or claimed by either or both of the parties. How far these provisions might be invoked if fraud or concealment were involved is not before us, since there are no allegations and no testimony suggesting either”. 209 Md. at 252-253.

In the present case there is no evidence of fraud or concealment.

II

The question remains whether the evidence supports the monetary award, or any part of it, under Article 16, § 25, which provides that a divorce court “shall have full power to award to the wife such property or estate as she had when married, or the value of the same, or of such part thereof as may have been sold or converted by the husband, having regard to the circumstances of the husband at the time of divorce, or such part of any such property as the court may deem reasonable”. (Emphasis added.)

In Hall v. Hall, 180 Md. 353, 24 A. 2d 415 (1942), decided before the enactment of Chapter 220 of the Acts of 1947 (now Courts Article, § 3-603 (c)) but after the enactment of what is now Article 16, § 25, the Court of Appeals stated that in this State “there is no statutory authority empowering courts of equity, in a case for divorce, to adjust the property rights of spouses, except to return to a wife property held in her own right before marriage. Code, 1939, Art. 16, Sec. 41 [now § 25 of the present code]”. Thus, under Art. 16, § 25, the power of a divorce court to adjust property rights is limited to property that the claimant spouse possessed at the time of the marriage “or the value of the same”. Although this statute appears to grant considerable discretion to the chancellor, such discretion can not be used to circumvent well established principles involving transactions between husbands and wives.

The appellee argues that “the effect of the transfers [of money to her husband or for his account] was ... to create a personal debt between the parties ...”. We think this argument runs afoul of the principles set forth in Nihiser v. Nihiser, 127 Md. 451, 96 A. 611 (1916), where the Court of Appeals, at 455-456, said:

“The law in this State is too clear to admit of any question ‘that the wife may become a creditor of the husband, in respect of money or property belonging to her as her separate estate, which the husband has received under an express promise at the time of repaying to her. But if such money or other separate property of the wife has been received by the husband, with the knowledge and acquiescence of the wife, without such express promise at the time, no implied assumpsit, either legal or equitable, will arise to support a claim against the husband or his estate. The wife having the jus disponendi of her separate property, if she thinks proper to let her husband have it, or appropriate it, without any express promise or agreement at the time to account for or repay her the amount so received or appropriated, she can not afterwards set up a claim against the husband upon the footing of a creditor. In such case she is taken to have acquiesced in the appropriation of the fund for the common benefit of herself and husband, or for the benefit of the family.’ [citations omitted; emphasis in original]”.

Assuming, without deciding, that all the sums advanced by appellee were part of her property or estate she had at the time of the marriage, there is no evidence that at the time of the advancements there was any agreement by the appellant to repay any of them. Moreover, the evidence is clear that the advancements were completely voluntary and were received by the appellant with the appellee’s knowledge and acquiescence. With respect' to the $2,700 appellee gave her husband for his business, there is some indication that the consideration for this advancement was her “understanding” that appellant “would give me certain shares and make me one of the officers in the corporation”. It is possible, therefore, that, as she neither received any shares nor became a corporate officer, she may have a claim for breach of contract or specific performance against the appellant. This point is not argued on appeal. Rather, appellee argues that the $2,700 should be “treated as a loan” because appellant had, after the break-up of the marriage, expressed a desire to borrow money to repay her when the karate business did not live up to their financial expectations. Apart from the vagueness of this testimony, it is of questionable relevance, for as stated by Judge Levine for the Court of Appeals in Klavans v. Klavans, 275 Md. 423, 432 (1975), “[T]he question of whether a purported gift by one spouse to another is made with donative intent turns on the facts and circumstances prevailing at that particular time. In this context, hindsight and afterthought are of doubtful significance”.

We conclude that on the record before us there is no supporting law or evidence to sustain the monetary award in this proceeding. Accordingly, we shall strike the third paragraph from the decree.

Decree modified and as modified affirmed.

Costs to be paid by appellant.

      . The effect of Acts 1977, ch. 221, commonly known as the “Kapneck Bill”, upon this hitherto settled principle is not before us in this appeal.

      . Formerly numbered § 3-603 (b); renumbered to be § 3-603 (c) by Acts 1977, ch. 221:
      “A court granting a limited or absolute divorce may determine the ownership of personal property, other than chattels real, held, possessed, or claimed by a party to the divorce proceedings, and in accordance with that determination may:
      (1) Make a division of personal property between the parties;
      (2) Order a sale of personal property and a division of proceeds; or
      (3) Make any other disposition of personal property it deems proper”.

      . Art. 16, § 25:
      “... [I]n all cases where a divorce is decreed, the court passing the same shall have full power to award to the wife such property or estate as she had when married, or the value of the same, or of such part thereof as may have been sold or converted by the husband, having regard to the circumstances of the husband at the time of the divorce, or such part of any such property as the court may deem reasonable ...”.

      . Due to various factors the appellant’s karate shop in Alexandria was not at all successful. At the time of trial, appellant’s net income was $400 per month and his financial statement showed monthly expenses of $709 and no money assets whatsoever.


author: Moore, J.,

text:
    DORIS HAMILL WOODWARD et al. v. HERMAN NEWSTEIN et ux.
    [No. 1163,
    September Term, 1976.]

      Decided September 13, 1977.

      The cause was argued before Moylan, Powers and Moore, JJ.

      David M. Williams for appellants — cross-appellees.

      Craig T. Walsworth and Roger Sanders, with whom were Henry, Hairston & Price on the brief, for appellees — cross-appellants.

       Note: Certiorari denied, Court of Appeals of Maryland, April 4,1978.

   Moore, J.,

delivered the opinion of the Court.

The appellants in this negligence action, plaintiffs below, sustained personal injuries while engaged in the interesting, and sometimes rewarding, diversion of looking at realty on a Sunday afternoon. The trial court (Rasin, J.) forestalled their effort to recover damages for their injuries when he granted appellees’ motion for summary judgment.

Appellants contend here that their claim to the status of invitees was erroneously rejected and that the finding in effect of the trial court that they were trespassers; as a matter of law, should be reversed. They also argue for an abandonment of the traditional distinctions between trespassers, licensees and invitees. We hold that the case was correctly decided on the basis of applicable Maryland law and affirm the judgment.

I

With one exception, the injured parties, in this litigation are out-of-state residents, owning weekend and vacation homes at Chesapeake Landing in Kent County. The appellees, Herman Newstein and his spouse, E. Marjory Newstein, reside in Narberth, Pennsylvania, near Philadelphia, where the husband is a professor in physics and meteorology at Drexel College. They purchased two lots on Mill Creek in Chesapeake Landing in 1966 and built a house which was completed in June, 1967. In the intervening years, the house had not been leased but had been used by the couple approximately two weekends each month, with longer visits during summer vacations. Ingress and egress was principally by a series of wooden steps leading to a porch overlooking the Creek. A door opened from the porch into the living area of the house.

In 1970, Mr. Newstein decided to sell the property and placed advertisements in newspapers in the Philadelphia, Baltimore and Washington areas as well as in Chestertown, Kent County. The advertisements identified it by general .location only and sought to effect a sale by the owners.

Subsequently, at a time not precisely established but prior to July 1, 1971, a limited listing of the property was given to Old Shore Realty & Co. of Chestertown. According to Mr. Newstein, this was for the purpose of protecting the commission rights of the brokerage firm with respect to one, named, prospective purchaser. Notwithstanding the limited nature of this listing, the Realty Company advertised the property, along with a number of other listings, in the Kent County News in October, 1972. The portion of the advertisement describing the appellees’ property read as follows:

“MILL CREEK — An exciting home on a secluded, wooded lot with 203' of waterfront. Living rm. w/fireplace, dining area, modern kitch., bath, & 2 bedrooms. There is a large aboveground basement w/fireplace & sliding glass doors for an ideal family rm. Private pier. Immediate possession. $39,750.”

Only the appellant DiSanto had seen this advertisement. Neither he nor the others had seen any of appellees’ 1970 advertisements prior to the day of the accident.

Appellant Doris Woodward and Margaret Pelarcik, both residents of Coatesville, Pennsylvania, jointly owned a house in Chesapeake Landing not far from the Newsteins. Appellants Evelyn Sparre and her husband were residents of Wilmington, Delaware, and also owned a vacation home along the banks of Mill Creek. Appellants Joseph DiSanto and his wife had, three months earlier, purchased and occupied a home across the way from Mrs. Woodward and Mrs. Pelarcik.

Mr. DiSanto stated in his deposition that he joined the three ladies at the Woodward-Pelarcik residence some time between 4:30 and 5:00 p.m. on Sunday, March 10, 1974. At the suggestion of one of the group, they decided to go for a ride. As they drove within sight of the Newstein property, DiSanto told the others that it was for sale. (He later testified in his deposition that he had seen the advertisement of Old Shore Realty 18 months previously and also had heard it discussed in the community that the property was for sale.) They parked in the driveway and looked around. There were no signs of any kind. The house was unoccupied at the time by the Newsteins but they stated they had been there within the month and that the house was completely furnished. One of the group, Mrs. Sparre, ascended the outside steps to obtain a view of the Creek from the porch. The other three followed her, Mrs. Pelarcik being last. As Mrs. Pelarcik was about to step onto the deck, the structure collapsed and her three companions — Mrs. Sparre, Mrs. Woodward and Mr. DiSanto — fell to the concrete below and sustained serious injuries.

The builder who constructed the home and who was also engaged to rebuild the porch, testified that dampness had caused the timbers to rot and that this was the cause of the collapse.

In their declaration, the appellants alleged that “in response to the open, public and notorious offers to sell [they] did venture onto the aforesaid described real estate, having an interest to view said property for the purpose of determining if one or any of them would be interested in purchasing the same from the defendants and, as a result thereof, the said plaintiffs were business invitees.. ..”

The appellees’ motion for summary judgment came after extensive discovery proceedings. Some eleven depositions were taken, including those of the injured appellants and Mrs. Pelarcik, both of the appellees, and three residents of the area, who testified that they knew the property was for sale in 1971 or 1972 and in 1973.

Also deposed was William Oakes, a partner in the Old Shore Realty firm, who testified that from May 1971 to October 1973, he showed the property on 21 separate occasions. On only three, was the interior of the house inspected and on those occasions the Newsteins were present. He was unsure whether Professor Newstein was aware of the other 18 visits, when he escorted various clients around the exterior of the house only. He did not have a key to the property. Mr. Oakes said he learned from Mr. Newstein in December, 1975 that the property was off the market. The Newsteins confirmed in their testimony that on the three occasions mentioned they were present when the house and grounds were shown to three prospects but denied any knowledge of the 18 other visitations. The date as of which they decided to discontinue the sale of the house is unclear.

II

The basic thrust of this appeal is that the appellants were business invitees, express or implied, that at all events their status was a question for the jury to determine and, under all the facts and circumstances, the issue should not have been resolved on a motion for summary judgment.

It is, of course, elementary that the function of summary judgment is not to try the case or to decide issues of fact; but to determine whether or not there is an issue of fact to be tried and, if there is none, to cause judgment to be rendered accordingly. Maryland Rule 610; Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 7, 327 A. 2d 502 (1974); Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 40, 300 A. 2d 367 (1973); Rosenthal v. Al Packer Ford, Inc., 36 Md. App. 349, 374 A. 2d 377 (1977). In determining the propriety of granting a motion for summary judgment, we are concerned with whether the trial judge was correct in his determination that there was no genuine dispute as to material facts. Broadwater v. Arch, 267 Md. 329, 335, 297 A. 2d 671 (1972); Fitzgerald v. Montgomery County, 25 Md. App. 709, 711, 336 A. 2d 795 (1975). Even if, however, the facts are undisputed but are susceptible of more than one reasonable inference, the party against whom the inference is sought to be made is entitled to the inference most favorable to his position. Hill v. Lewis, 21 Md. App. 121, 133, 318 A. 2d 850 (1974), and cases cited therein. •

In the case sub judice, it is our view that there were no disputes as to material facts, and there is no support, in fact or in law, for the position of the appellants that they were business invitees, “express or implied.”

Maryland law with respect to the liability of owners or occupiers of land is, of course, well-settled. The Court of Appeals reiterated in Bramble v. Thompson, 264 Md. 518, 521, 286 A. 2d 265 (1972), one of its most recent pronouncements on the subject, that the liability of a property owner to an individual injured on his property is dependent upon the standard of care owed to that individual; and that standard is, in turn, contingent upon the individual’s status while on the property, i.e., whether he is a trespasser, licensee or invitee. Accord, Carroll v. Spencer, 204 Md. 387, 104 A. 2d 628 (1954); Right v. Bowman, 25 Md. App. 225, 333 A. 2d 346 (1975); Fitzgerald v. Montgomery County, supra.

The definitions of these categories and the standards of care applicable to each are succinctly stated by Judge Digges in Bramble v. Thompson, supra, 264 Md. at 521-22. In the instant appeal, we are primarily concerned with the status of an invitee, to whom is owed the duty to use reasonable and ordinary care to keep the premises safe and to protect from injury caused by an unreasonable risk which the invitee himself, in the exercise of ordinary care for his own safety, will not discover. Id. at 521. While the standard of care is thus free of difficulty, there is, as Dean Prosser points out, an “important conflict of opinion as to the definition of an invitee, as well as to whether certain visitors are to be included in this category.” (Emphasis added.) W. Prosser, Law of Torts § 61, at 386 (4th ed. 1971). An invitation may be express or implied and the conflict to which the learned author refers is largely concerned with the definition of an implied invitee.

In the case at hand, it is beyond doubt that there was no express invitation. See Gray v. Sentinel Auto Parts Co., supra, 265 Md. at 66. The injured appellants admitted that they never requested the permission of either the appellees or any representative of Old Shore Realty to enter upon the property; and the appellees emphatically stated that they never extended such an invitation. The newspaper advertisements, the most recent of which preceded the accident by one year and a half, omitted the address of the advertised property and, far from requesting an inspection of the premises, deliberately withheld such invitation.

In our judgment, the court below correctly analyzed appellants’ claim when it stated in the memorandum opinion granting the motion that if the plaintiffs were to prevail, it had to be found that there was an “implied invitation.” Neither the uncontradicted facts nor the law permits such a finding, as the lower court correctly held.

Appellants seem to rely here upon either one or both of the theories recognized and applied by the Court of Appeals in the determination of implied invitee status. We refer to the so-called mutual benefit doctrine, characterized by the Court of Appeals as the “older theory,” Gray v. Sentinel Auto Parts Co., supra, 265 Md. at 66, and what is called the “more recent theory,” namely, the implied invitation doctrine. Id. Judge Finan pointed out in Gray that Judge Henderson (later Chief Judge) first analyzed these concepts under the Maryland cases in Crown Cork & Seal Co. v. Kane, 213 Md. 152, 131 A. 2d 470 (1957), in which the Court held that there was sufficient evidence to support an implied invitation and that the submission of that issue to the jury was without error. Judge Henderson explained that the mutual benefit theory predicates liability upon a finding that the individual on the premises was present for the mutual benefit of owner and visitor and not acting solely for his own personal pleasure or benefit. The later theory, as Judge Henderson pointed out, does not depend on mutual benefit at all. He went on to explain:

“But there is another theory of liability for negligence that does not depend on mutual benefit at all. The cases all recognize that an invitation may be express or implied, and there are many cases in which an invitation has been implied from circumstances, such as custom, the acquiescence of the owner in habitual use, the apparent holding out of premises to a particular use by the public, or simply in the general arrangement or design of the premises.” 213 Md. at 159.

Application of the mutual benefit theory generally involves the conduct of a business by the possessor of land. (When that business is a retail store, the open door is truly an invitation during regular business hours.) Under the alternative theory, before the status of invitee may be established by implication, there must be, in the conduct or Words of the possessor, some inducement or encouragement to enter, and mere permission or acquiescence is not sufficient. As the Restatement points out in comment a. to § 332, supra, “ ‘Invitee is a word of art, with a special meaning in the law. This meaning is more limited than that of ‘invitation in the popular sense, and not all of those who are invited to enter upon land are invitees.” In determining the existence or not of an invitation in the legal sense, the Restatement goes on to point oat that “the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor.” Restatement § 332, comment c.

In this case, no invitation could reasonably be construed under either theory from the words and conduct of the Newsteins or of Old Shore Realty, even assuming that the latter was agent for the owners. The following facts compel this conclusion:

(a) The advertisements placed by the owners were grossly out-of-date, having been published almost four years prior to the accident;
(b) Even if the date of the advertisements were not a factor, they disclosed only a post office box number and a telephone number of the owners in Narberth, Pennsylvania. Any reader capable of ascertaining the property’s location, clearly could not assume that the advertisement was an invitation to inspect the house without first contacting the owner;
(c) Similarly, the advertisement placed by Old Shore Realty in September and October, 1972 was also of somewhat ancient vintage and “deliberately” left undisclosed the address of the described premises to assure that any prospective buyer would first contact the real estate agency;
(d) The owners of the property posted no “For Sale” sign or signs, gave no key to the premises to any individual for purposes of inspection and had never discussed with appellants or any other neighbors their intentions with respect to a sale of the property;
(e) The fact that several neighbors of the Newsteins, Lorraine and Michael Purcell and Paul Getz, understood that the property was for sale and that the Purcells on two occasions visited the property, is immaterial. In determining whether the Newsteins impliedly invited individuals onto their property, their own conduct, and that of their agents, not that of their neighbors, is alone relevant. Neither the Purcells nor Mr. Getz testified that their entry onto the Newstein property was prompted by acts of the Newsteins or Old Shore;
(f) Even if, as the trial court found, the owners had acquiesced in the showing of the premises to some 18 prospects when the owners were not present on the grounds, such escorted inspections can only reasonably be interpreted as a requirement that prospective purchasers be accompanied by an owner’s representative.

Cases in other jurisdictions arising under facts more favorable to the injured plaintiffs support our conclusion that there was no implied invitation here. Thus, in Mortgage Commission Servicing Corp. v. Brock, 4 S.E.2d 669 (Ct. of App. Ga. 1939), the plaintiff responded to a Sunday newspaper advertisement of an apartment for rent. The advertisement gave the address but also provided the name of the realty agent, its address and telephone number. One evening thereafter, without first contacting the realty agency, the plaintiff went to inspect the apartment. She tripped in a dark hallway and fell down a flight of stairs. In affirming the trial court’s order dismissing the plaintiff’s complaint, the court stated:

“Clearly it [the advertisement] contains no express invitation to the public to inspect any of the premises listed in the advertisement, and candor requires the view that it holds out no implied invitation. It merely calls the attention of the reader to the fact that certain unfurnished apartments are available for leasing. . . . There is not in the body of the advertisement, at its beginning or at its end, any statement from which the implication could reasonably be drawn that any interested party was at liberty to proceed on Sunday, or at any other time, to inspect the apartments. . . . The only reasonable construction to be placed upon it is that the owner, through its agents, was informing the public of certain premises which were available for leasing at named rentals, and that if anyone was interested he was invited to communicate with Draper-Owens Co. [the agent] .... The insertion of the particular advertisement without an express invitation does not, therefore, carry with it the implication that the reader was invited to inspect the premises without first communicating with the [realtor].” 4 S.E.2d at 672.

We find singularly appropriate tlie language of the Supreme Judicial Court of Massachusetts in the case of Wilkie v. Randolph Trust Co., 55 N.E.2d 466 (Mass. 1944), where injuries were sustained when house seekers came back to the premises in the evening after having surrendered the keys which they had obtained from the realtor when they inspected the house in the early afternoon. In sustaining a report of an auditor who found for the defendant-property owners, the court stated:

“The building was closed so far as the reception of prospective buyers was concerned. This condition of the property, even though it was on the market for sale, would not constitute an invitation to the general public, or even to those who might be desirous of becoming owners, to enter upon the premises for the purpose of inspecting them without any consent or any further action by the owner. The situation is entirely different from that of a storekeeper, the maintenance of whose shop creates a continuous invitation during the usual business hours to all members of the public who desire to trade with him. Here, the owner retained the right to select the persons who should go upon the land and examine the house. Even though the plaintiffs were still considering the purchase of the property when they made the second visit, they did not acquire the status of invitees in the absence of some conduct upon the part of the defendant which induced them to make this visit.” (Emphasis added.) 55 N.E.2d at 467-68.

These decisions apply a fortiori, we think, to a situation where, as here, there was no sign on the property, where two of the visitors who were injured accepted the ipse dixit of their companion that the property was for sale and where the latter’s information was based on an advertisement 18 months before, and some talk in the locality.

The appellants rely on Fogarty v. Bogert, 69 N.Y.S. 47 (App. Div. 1901) to support their position. In Fogarty, the plaintiff was injured when, in response to a “Flat to Let” sign posted on the first floor of an apartment, she ventured downstairs to make inquiry of the janitor. The Appellate Division (2nd Dept.) reversed the trial court’s dismissal of the plaintiff’s declaration. The court’s holding, however, makes clear that it based its decision on the tendency of the building’s design to attract visitors on the first floor to go down to the basement to make inquiries and, therefore, the owner was responsible for exercising due care in the construction of the stairwell. The case is factually inapposite to the case sub judice. Similarly, we find appellants’ reliance on Blankenship v. Wagner, 261 Md. 37, 273 A. 2d 412 (1971) to be misplaced. Blankenship involved the application of res ipsa loquitur and the court had no occasion to discuss the varying standards of care owed by a property owner to one injured on his premises.

Based on the undisputed material facts, the trial court correctly found that the appellants entered the property without an express or implied invitation, and as trespassers or, at best, bare licensees, see Bramble v. Thompson, supra, were owed only the duty to refrain from wanton and wilful injury. As there is no evidence of such wanton or wilful conduct, the appellees were entitled to judgment as a matter of law.

Ill

As previously noted, Professor Newstein stated in his deposition that he was never informed by Mr. Oakes that the agent showed the property to approximately 18 prospective purchasers. Mr. Oakes, on the other hand, testified, by referring to his telephone records, that he had received prior approval for most of these visits from the appellees. In the memorandum opinion, the trial court resolved the issue, stating:

“Although the defendant’s claim [that their property] was listed [with Old Shore] for the sole purpose of being offered to one prospective buyer, the Court finds from the conduct of the owners that they acquiesced in Old Shore Realty Co. showing the property to a number of prospective purchasers.” (Emphasis added.)

The appellants now contend that the trial court’s decision must be reversed since “there was a material dispute” as to the issue of whether the Newsteins acquiesced in Old Shore showing the property to these other clients. We find this contention to be wholly without merit.

Maryland Rule 610 d.l. provides that the entry of a summary judgment shall be rendered if upon the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Emphasis added.) The Court of Appeals in Salisbury Beauty Schools v. State Board of Cosmetologists, supra, in discussing the term “material fact,” stated:

“Even where it is shown that there is a dispute as to a fact, when the resolution of that factual dispute is not material to the controversy, such dispute does not prevent the entry of summary judgment; ... a dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.” (Citations omitted.) 268 Md. at 40. Accord, Hill v. Lewis, supra, 21 Md. App. at 133.

The trial court’s decision in this case that the appellees did not impliedly invite the appellants onto their property, did not rest upon the resolution of the factual dispute between Mr. Newstein and Mr. Oakes as to whether the owner acquiesced in his agent’s showing the property on these other occasions. The crucial issue before the court was whether the appellees’ conduct, and that of their agent, justifiably created the impression that the appellants could enter the Newstein property without first contacting the owners or Old Shore. The material fact with regard to the 18 visits by other prospective buyers was that their entries were accompanied by Mr. Oakes, i.e., they first contacted the realty agency before entering the premises. As to this point, there was no dispute. The disputed fact was whether the appellees had acquiesced in these visits, the resolution of which was not material to the ultimate issue confronting the court. It is plain that the trial court properly resolved the motion for summary judgment based on the material undisputed facts.

IY

Appellants’ next contention is that:

“The lower court did abuse its discretion by refusing to revise its rulings on the motion for summary judgment in order to permit the appellants to amend their Declaration to include causes of action that they were trespassers, lured, enticed, tolerated and anticipated and foreseen.”

After the trial court issued its decision granting the appellees’ motion for summary judgment, the appellants filed a “Motion for Reargument and/or For Amendment and/or Appropriate Relief” pursuant to Maryland Rule 625. In their motion the appellants requested two types of alternative relief:

ll That “the court reverse itself with respect to the matter of whether or not the facts showed the Plaintiffs were business invitees;” or,
2) That “the court should permit an amendment of these pleadings adding an additional and new cause of action to the effect that they were trespassers on a business venture which [sic] were enticed to come upon the Defendants’ premises for a business purpose based upon a tolerated, known, continuous, habitual trespass for that purpose.”

The trial court properly denied the appellants’ motion.

In the first instance, as discussed above, the lower court was correct in its finding that the appellants were not “business invitees.”

The trial court also properly denied appellants’ request for leave to amend their Declaration. Maryland Rule 320 c.l provides that “In a case heard or tried before the court without a jury, any amendment may be made at any time before a final judgment or decree is entered.” (Emphasis added.) Here, appellants’ motion to amend their declaration was filed after the trial court rendered a final judgment in favor of the appellees. In any event, they were not entitled to the amendment because the causes of action sought to be asserted are not recognized in Maryland and we can find no abuse of the court’s discretion under Maryland Rule 625 a. See Fitzgerald v. Montgomery County, supra.

V

Appellants’ final contention is that it is against the public interest for the courts of Maryland to continue to apply the varying standards of care owed to individuals injured on another’s property solely by reason of the visitor’s classified status as invitee, licensee or trespasser.

We recognize that there is a modern common law trend towards the abolition of the rigid classifications of trespasser, licensee and invitee. Smith v. Arbaugh’s Restaurant, Inc., 469 F. 2d 97 (D.C. Cir. 1972); Rowland v. Christian, 443 P. 2d 561 (Calif. 1968); Mile High Fence Co. v. Radovich, 489 P. 2d 308 (Colo. 1971); Pickard v. City and County of Honolulu, 452 P. 2d 445 (Hawaii 1969); Ouellette v. Blanchard, 364 A. 2d 631 (N.H. 1976); Basso v. Miller, 386 N.Y.S.2d 564 (1976); Mariorenzi v. Joseph DiPonte, Inc., 333 A. 2d 127 (R.I. 1975). See Annot. 32 A.L.R.3d 508 (1970).

In its place, these other jurisdictions by judicial decision now impose on occupiers of land a single duty of reasonable care to refrain from injuring visitors on their property; and although a person’s status as a trespasser, licensee, or invitee may still be considered as a factor in the determination of liability, other factors such as the foreseeability of the visitor’s presence and the time, manner, place and surrounding circumstances of his entry, become relevant in the ultimate decision. See Smith v. Arbaugh’s Restaurant, Inc., supra, 469 F. 2d at 106. The rationale for this trend is felicitously explained by Mr. Justice Stewart in the case of Kermarec v. Compagnie Generate, 358 U. S. 625, 630-31 (1959), where the Court refused to import to admiralty law the conceptual distinctions of the common law:

“The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards ‘imposing on owners and occupiers a single duty of reasonable care in all circumstances.’ ”

Whether Maryland should move in this direction — if indeed that question is properly before us since it was not raised belqjv — is not for this Court but rather*, the Court of Appeals, to decide. On the other hand, as Chief Judge McSherry expressed it, speaking for the Court in Demuth v. Old Town Bank, 85 Md. 315, 320, 37 A. 266 (1897):

“It is for the Legislature by appropriate enactments and not for the Courts by metaphysical refinements to provide a remedy against the happening of hardships which may result from the consistent application of established legal principles.”

Judgment affirmed; appellants to pay the costs.

      . Doris Hamill Woodward, Joseph DiSanto and Evelyn T. Sparre were the injured appellants. The other two appellants, Inez DiSanto and Dallas Sparre, were joined in the suit as respective spouses.

      . Appellant Joseph DiSanto is a full-time resident of Kent County, having first established a home there in 1964.

      . At the bottom of the advertisement, the address and telephone number of the realty company were given along with the names and telephone numbers of four real estate brokers in the firm.

      . The trial court in a memorandum opinion on the motion for summary judgment made a finding that the owner “acquiesced in Old Shore Realty Company showing the property to a number of prospective purchasers.” We consider infra appellants’ contention that the court thus improperly resolved an issue of fact, there being a conflict between the testimony of Mr. Oakes and that of Professor Newstein.

      . In Osterman v. Peters, 260 Md. 313, 315, 272 A. 2d 21 (1971), the Court of Appeals noted that Maryland was one of seven states which reject the doctrine of attractive nuisance without qualification.

      . It will be observed that the court did not in Bramble v. Thompson advert to the definition of invitee contained in ij 332 of the Restatement (Second) of Torts (1965); nor was this definition referred to in the later case of Gray v. Sentinel Auto Parts Co., 265 Md. 61, 288 A. 2d 121 (1972), decided a month after Bramble. That section defines an invitee as “either a public invitee or a business visitor.”

      . For cases where the Dlaintiff was extiresslv invited to insDect the premises see, e.g., Coughlin v. Harland L. Weaver, Inc., 230 P. 2d 141 (Ct. of App., Calif. 1951) (court reversed motion for nonsuit granted in favor of defendant-realty agency under circumstances where plaintiff was injured while inspecting a house to which she was invited by realtor and an “Open For Inspection” sign was posted in front of premises); Davidson v. Borough of Upland, 136 A. 2d 155 (Penn. 1957) (court upheld trial court’s finding of “business invitee” where plaintiff was given keys to inspect an apartment by renting agent, but jury award reversed on basis of insufficient evidence of negligence); Hall v. Glick, 110 A. 2d 836 (Penn. 1955) (court affirmed jury award in favor of plaintiff injured while being escorted around apartment for rent by owner!; Bonello v. Powell, 223 S. W. 1075 (Mo. 1920) (trial court’s finding that plaintiff was a business invitee affirmed where owner and realtor invited plaintiff to inspect property, but jury award reversed on other grounds'); Singleton v. Kubiak and Schmitt, Inc., 101 N.W.2d 619 (Wis. 1960) (jury award in favor of plaintiff reinstated where court found that there was sufficient evidence of defendant’s negligence in failing to exercise reasonable care to protect the plaintiff, a prospective purchaser, from injuring himself after the defendant-owner expressly invited the plaintiff to inspect newly constructed homes.!

      . Both Mr. DiSanto and Mrs. Woodward deposed that they had no specific interest in purchasing the property but that they would have considered it if they liked what they saw. Mrs. Sparre, however, indicated that she had no such intention. See Kalus v. Bass, 122 Md. 467, 89 A. 731 (1914).

      . Mr. Newstein stated in his affidavit accompanying the motion for summary judgment that he did on one occasion, back in 1970 or 1971, tell a neighbor that he might sell the property.

      . The resolution of whether Old Shore «-as authorized to show the property on the 18 occasions would, of course, have been material in a suit by one or more of the 18 persons had they been injured on the appellees’ property.

      . We note in passing that in one part of the appellants’ brief they argue that the fact that the appellees acquiesced in Old Shore showing the property to 18 clients, as the trial court found, created an implied invitation to others that they might also enter. In a subsequent section, referred to infra, appellants contend that since Mr. Newstein did not expressly authorize these visits, the 18 entries constituted trespasses, thereby putting the appellees on notice as to the foreseeability of further trespasses.

      . As Prosser points out, dissatisfaction with the rigid common law categories led to the adoption in England, in 1957, of the Occupiers’ Liability Act, 5_& 6 Eliz. II, c. 31 which abrogated the distinction between licensees and invitees and declared that the occupier owes the same “common duty of care” to both. The law as to trespassers was not affected. Law of Torts, supra, at § 62.