text:
    HERBERT DATCHER v. STATE OF MARYLAND
    [No. 698,
    September Term, 1978.]

      Decided June 7, 1979.

    The cause was argued before Moylan, Mason and MacDaniel, JJ.

      Nancy Louise Cook, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alice G. Pinderhughes, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Howard Grossfield, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The Appellant, Herbert Datcher, was convicted in the Criminal Court of Baltimore of Daytime Housebreaking. Upon this appeal, he raises five contentions:

1) that he was convicted of a crime with which he had not been charged;
2) that he did not effectively waive his right to trial by jury;
3) that he was denied the effective assistance of counsel;
4) that he was denied the right to confront the witnesses against him; and
5) that he was erroneously ordered to make restitution.

The Use and Abuse of Language

The Appellant’s first contention deals with a very specific problem but it illuminates a wider field of troubles as we deal with the myriad complaints raised by those who lose at the trial level — the opportunistic tendency, generally long after the fact, to seize upon a slip of the tongue or an informal usage and to treat it as something chiseled in granite.

The deputy clerk who made the docket entries in this case recorded the Appellant as having been convicted of Housebreaking in violation of Art. 27, Sect. 30. The Appellant, on the other hand, strenuously contends that he was convicted of Breaking and Entering in contravention of Art. 27, Sect. 31A. The question arises of whether they both attended the same trial.

The Appellant, along with his brother Rufus as a codefendant, went to trial before Judge Hilary Caplan on a four-count indictment. Those counts were, respectively:

1) Daytime Housebreaking,
2) Roguery and Vagabondage,
3) Larceny, and
4) Receiving Stolen Goods.

Everything in this case took place within the limited context of that four-count indictment. Meaning must be derived from the context in which words are used as well as from the naked words themselves. Within the clear context of this trial, the evidence was legally sufficient to convict the Appellant on the greatest count — Daytime Housebreaking — and Judge Caplan so convicted him.

Judge Caplan thoroughly summed up the evidence and correctly assessed the trial contest as one of competing credibilities. He found a key State’s witness to be credible and he found the Appellant to be unworthy of belief. He concluded his rendering of the verdict with the following words:

“For that reason I find the defendants, both of them, guilty of the charge of breaking and entering.”

Upon so insubstantial a foundation, the Appellant erects the argument that he was convicted of a crime with which he was never charged. He contrasts Daytime Housebreaking under Section 30 (b) with Breaking and Entering under Section 31A and asserts that the conviction must have been for the latter. We note at the outset that no exception was taken when the verdict was rendered nor any clarification called for. There is, therefore, nothing before us for appellate review. Green v. State, 23 Md. App. 680, 685; Maryland Rule 1085.

In this case, however, we do not hesitate to address the merits (or palpable lack thereof) in the hope of foreclosing future, deliberate distortions of meaning. Reading the clear and unambiguous rendering of the verdict in full context, we decline to credit a strained and hypertechnical interpretation which would be a rank absurdity. We take judicial notice of the fact that the word “burglary” and the phrase “breaking and entering” are both used frequently, by trained lawyers and jurists as well as by laymen, as generic and sometimes interchangeable terms to refer to the whole family of burglary-related offenses, as well as to individual species within that broad genus. The phrase “breaking and entering” was unquestionably used in that off-hand fashion in this case and it was used for the clear and unambiguous purpose of designating the first count (which is part of the “breaking and entering” or “burglary” family), in contradistinction to those counts charging Roguery and Vagabondage, Larceny and Receiving Stolen Goods (which are not of that family). We cannot conceive of any intelligent listener or reader giving any other meaning to so clearly communicated a message. Identification need only be specific rather than generic when one is distinguishing between species rather than between genera. The process of justice is ill-served when disappointed litigants hang critically on every spontaneous word as if it had bubbled from the Earth at Delphi.

The Maryland Rule of Constitutional Waiver Plus

Rulemakers frequently suffer a chronic affection for catechisms and for the spreading of catechisms upon the record in the benevolent hope that once everyone has reduced every jot and tittle to unflagging memory and dutiful execution, litigation will be wondrously diminished. The paradox is that, at least in the intermediate range, the device which was intended to deliver us from litigation, instead cranks out seemingly endless litigation. Thus has it been with Maryland Rule 735. The pertinent part thereof for present purposes is 735 d:

“If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.”

We first came to grips with Rule 735 d in October, 1978, with Biddle v. State, 40 Md. App. 399, 392 A. 2d 100. Since March, 1979, we have engaged it on nine additional published occasions: Butler v. State, 41 Md. App. 677, 398 A. 2d 514; Countess v. State, 41 Md. App. 649, 398 A. 2d 806; McCoy v. State, 41 Md. App. 667, 398 A. 2d 1244; Fairbanks v. State, 42 Md. App. 15, 398 A. 2d 814 (1979); Tucker v. State, 42 Md. App. 103, 399 A.2d 931 (1979); Jones v. State, 42 Md. App. 209, 400 A. 2d 1 (1979); Harris v. State, 42 Md. App. 248, 400 A. 2d 6 (1979); Watkins v. State, 42 Md. App. 349, 400 A. 2d 464 (1979) and Fisher v. State, 42 Md. App. 515, 400 A. 2d 1159 (1979). In the course of holding that there was noncompliance with Rule 735 on six of these now ten occasions and that there was compliance on four others, we have reduced a wide field of initial doubt by bracketing the critical target area with reasonably pinpoint precision.

Aids to construction are now at hand. As Judge Thompson pointed out in Harris v. State, supra, “The obvious purpose of this in-court inquiry is to show affirmatively on the record that the defendant’s constitutional right to a jury trial was voluntarily and knowingly waived.” In Fairbanks v. State, supra, Judge Lowe looked, by way of analogy, to Davis v. State, 278 Md. 103, 107-108, and concluded that the satisfaction of Rule 735 does not require “that a precise rubric or litany must be followed to effect a waiver of a constitutional right, such as the right to trial by jury.” 398 A. 2d at 817. He reasoned that substantial compliance is the ultimate requirement and that “[cjommon sense is the criterion.” These guiding principles have found expression in the growing body of case law.

In Harris v. State, supra, Judge Thompson probed “the required scope and extent of the section d inquiry.” In Biddle v. State, supra, we struck down the court trial election because “the record was devoid of any indication that the defendant knew of his right to a jury trial or participated in the election of a court trial. It merely showed that defense counsel requested a court trial at the arraignment, in the defendant’s presence.” Harris v. State. The failing in Biddle was twofold. In the first place, there was no showing on the record, by direct inquiry of the defendant (by court or counsel) or by indirect representation by counsel, that the election of trial mode was actually made or acquiesced in by the defendant personally. In the second place, even assuming a personal election by the defendant, there was no showing, by direct inquiry of the defendant or by representation by counsel, that the election of a court trial was made with knowledge of the alternative right to a jury trial.

In Butler v. State, supra, we also held that there was noncompliance with Rule 735. A dimension was added by way of implication. In Butler, the only thing that transpired before the Circuit Court was the following representation by counsel:

“. . . His case originally was a jury trial prayed in the District Court. Since that time Mr. Butler has waived his right to have this case tried before a jury. So we’re here today, non-jury trial, enter a plea of not guilty.” (Emphasis supplied)

The court made no further inquiry but proceeded immediately to trial. The analysis of Judge Wilner for this Court attached significance to the fact that Butler had earlier elected a jury trial when he was first before the District Court. We stressed the fact that the District Court record did not show 1) “whether the election of a jury trial was made by him or by his counsel,” 2) whether Butler “personally was in court” when the jury trial was prayed, 3) whether “the District Court inform[ed Butler] of his right to trial by jury,” and 4) “what information, if any, was actually conveyed to [Butler] with respect to his right to a jury trial when the matter came before the District Court.” The implication of this discussion is that if there had been spread upon the record in the Circuit Court evidence that upon an earlier occasion in the District Court the defendant had been fully informed of his right to trial by jury, that earlier knowledge would be deemed to remain with the defendant and would demonstrate that his later election of a court trial was, indeed, an informed and knowledgeable election. Our decision in Butler hinged, in part, upon the failure of the record to show such earlier knowledge:

“Neither is there any indication in the record that the court knew what had transpired in the District Court. Accordingly, there was no basis upon which it could have reasonably concluded that appellant had full knowledge of his right to a jury trial and that he was knowingly and voluntarily waiving that right.”

In Tucker v. State, supra, there was no even colorable compliance with Rule 735 d. Two written elections for a court trial had been filed but there was no inquiry upon the record of any sort (of anybody) to determine whether the election was “with full knowledge of his right to a jury trial” or that the defendant had “knowingly and voluntarily waived the right.”

In Harris v. State itself, the critical failure of compliance was that “the court did not address the appellant and the appellant was given no opportunity to speak.” To be sure, Judge Thompson had earlier stressed:

“First, it is not necessary that the entire inquiry always be conducted on a person to person basis between the judge and the defendant. Statements by counsel in which the defendant has clearly acquiesced may be sufficient.”

In Harris, however, there was “no basis in this record for concluding that appellant acquiesced in any on the record explanation by counsel, as in McCoy, supra, or that he affirmed the sort of recital shown in Fairbanks, supra.” Whether the inquiry of the defendant be direct or indirect, the rule indubitably requires that some inquiry be made “of the defendant.”

Our holding of noncompliance with Rule 735 d in Watkins v. State, supra, dealt with a situation virtually on all fours with Biddle. The election of a court trial was made by defense counsel. There was no inquiry of any sort as to 1) whether the election was that of the defendant himself or 2) even if so, whether it was made with knowledge of the right to trial by jury.

Our most recent holding of noncompliance was in Fisher v. State, supra. The critical phrase from Rule 735 d in that case was “with full knowledge of his right to a jury trial.” Judge Lowe summed up our earlier case law pointing out that it is not “necessary to spell out the various aspects of a jury trial, such as the fact that all jurors must be convinced beyond a reasonable doubt before he can be convicted. It is sufficient that the record affirmatively indicates that the defendant knew that a jury trial was available.” We then added, however, the partial qualification that the defendant must know not simply that a jury trial is available but “must also understand the general nature of a jury trial when he elects to be tried by the court.” We there concluded:

“While it is clear that appellant knew that a jury trial was available, and he was waiving it, there is no evidence of record that he did so 'with full knowledge’ of it as required by Md. Rule 735 d. The record does not show that he understood that which he was waiving, i.e., 'the general nature of a jury trial.’ Harris, supra. SI. Op. at 5. We must reverse, and remand for retrial.”

Four of our decisions weigh upon the other pan of the balance scales. In Countess v. State, supra, inquiry was made of the defendant personally and it was not disputed that the election of a court trial was made by the defendant. The critical issue there was the “knowing” quality of the waiver. In finding adequate compliance with Rule 735 d, Judge MacDaniel articulated two factors of significance. The defendant’s representation that he understood that he had a right to a jury trial and “that his lawyer had fully explained his right to him” was a significant affirmative factor even without any detail being spelled out. Of even greater significance was the fact that the defendant had earlier signed a form electing trial by jury. That he later changed his election to that of a court trial was not significant. The significant thing was that his signature was affixed to the bottom of a form which recited the right “to be tried by a jury of twelve persons,” the requirement of unanimity for a verdict and the fact that guilt must be found by all jurors “beyond a reasonable doubt.” This form was of critical probative force in our decision that the subsequent election was one made with requisite knowledge. We there concluded:

“A review of the record in this case convinces us that the mandatory requirements of Rule 735 d have been satisfied. Both the appellant and his attorney signed the form which is part of the record, and it contains all of the information required by Section b----The signed form and the in-court responses to questioning show that the appellant made his election of a court trial with full knowledge of his right to a jury trial and that he knowingly and voluntarily waived the right.”

In McCoy v. State, supra, we held that although the waiver of a jury trial must be made by the defendant, the announcement of the waiver may come through defense counsel. In McCoy, the court, on the record, informed three defendants that they had a right to a trial by jury and inquired of them as to their election. The three defendants never spoke personally but their respective lawyers did speak for them in their presence. The first lawyer informed the court that his client was aware of the right to a jury trial, aware that a jury consists of twelve persons, aware of the unanimity requirement and that his client elected to be tried by the court. The other two lawyers, in a more abbreviated representation to the court, responded that the situation with respect to their clients was the same. In finding that the rule had been complied with, we said, at 398 A. 2d 1248:

“In the present case, the court informed the appellants that they had a right to a trial by jury and asked each of them whether it was waived. In response, each of the attorneys explained his client’s understanding of his right and indicated that it was waived.
In addition, while the decision to waive the right to a jury trial must be made by the defendant, it may be voiced by his counsel.
. . . Similarly, counsel’s explanation of his client’s understanding of his rights acts as the client’s own explanation provided that the client acquiesces.
. . . [Cjounsel for each appellant announced the waiver of a jury trial and explained his client’s understanding of his right. At no time did the appellants, all of whom were present, voice any objection.”

Just as McCoy indicated that the response may be made by counsel, Fairbanks v. State, supra, established that the inquiry may be conducted by counsel. The critical exchange in Fairbanks, held by us to be sufficient to show compliance, was set forth in that opinion at 398 A. 2d 815:

“Appellant raised no objection below to the waiver of trial by jury. In fact, his attorney volunteered that:
‘Mr. Fairbanks- understands what a jury trial is. He understands he has the absolute right to have a jury trial and wishes to waive that right and be tried by the Court here today. Is that correct, Mr. Fairbanks?’.

to which appellant replied:

‘Yes, sir, it is.’ ”

Our holding, at 398 A. 2d 817, was:

“That rule requires only that the court ‘determines, after inquiry ... on the record’ that the election was knowing, voluntary, and with full knowledge of defendant’s rights. It does not require that the ‘inquiry’ be by the court, only that it be on the record, to substantiate the court’s determination.”

The necessary companion holding in Fairbanks was that the representation made by counsel, and adopted by the defendant, was sufficient to show that the defendant understood the general nature of a jury trial. In Harris v. State, supra, we characterized the Fairbanks holding in this regard in the following terms:

“[Djefense counsel volunteered that his client understood the nature of a jury trial, that he knew he had a right to such a trial, and that he wished to waive that right and be tried by the court. Counsel then asked his client whether that recital was correct and the defendant replied that it was. This was held to be sufficient compliance with Rule 735 d, although the record did not show that the defendant had been informed of the various incidents of a jury trial as spelled out in section b.”

In Jones v. State, supra, filed the day before our opinion in Harris v. State, supra, we focused in again on the establishment of the understanding of the general nature of a jury trial and again looked to Fairbanks v. State as the bench mark. The critical exchange in Jones, in this regard, was:

“Mr. Levin: Your Honor, we would waive the reading of the criminal information in case number 4620.
Mr. Jones, I’ve advised you, sir, that these are serious charges and you do have the right to a jury trial in this matter. Do you understand that?
The Defendant: I understand.
Mr. Levin: You have to speak up so —
The Defendant: I understand.
Mr. Levin: Do you understand what the jury trial is?
The Defendant: I understand.”

The defendant there argued “that this election was not made with ‘full knowledge’ of his right to a jury trial because he was not informed of the basic elements of a jury trial as described in the form contained in Section b of the Rule.” We held that the exchange was sufficient to show compliance with the Rule, measured by the standard established in Fairbanks:

“The facts of the present case are almost indistinguishable from those of Fairbanks. There, Fairbanks’ attorney merely asserted that his client understood what a jury trial was, that he had an absolute right to have a jury trial, and that he wished to waive that right and be tried by the court. When asked whether that recital was correct, Fairbanks replied in the affirmative. On those facts we held that there had been compliance with Rule 735. Consistency with our decision in Fairbanks, supra, dictates that we reject appellant’s argument on this issue.”

The synthesis that emerges from this mushrooming growth of new case law is that the face of the record must reveal that:

1. AN INQUIRY WAS MADE OF THE DEFENDANT.
(It may be made by the judge or by counsel or by anyone else, for that matter, but it must be made of the defendant.)
2. THE ELECTION OF A COURT TRIAL WAS MADE BY THE DEFENDANT.
(The mechanism for communicating this election is not invariable. It may be voiced by the defendant; it may be indicated in writing pursuant to Rule 735 b; it may be voiced by counsel and then adopted by or acquiesced in by the defendant. It needs to be established, however, that the election, however communicated, was actually made by the defendant.)
3. THE ELECTION WAS MADE WITH KNOWLEDGE OF THE RIGHT TO TRIAL BY JURY AND WITH SOME AWARENESS OF THE GENERAL NATURE OF A JURY TRIAL.
(The ways of establishing this knowledge again are variable. A detailed knowledge of the attributes of trial by jury is not required. What is required is some indication that there is a general understanding of the nature of a jury trial.)

Initially, we have no difficulty whatsoever with the state of the record to satisfy the first two of the above criteria. Judge Caplan made direct inquiry of both the appellant and his codefendant brother. The appellant, and his brother, personally indicated their election of trial by court in preference to trial by jury:

“THE COURT: Very well, Gentlemen, you both understand you are entitled to a jury trial, It is my understanding you know what a jury is and you give up your right to a jury trial, is that correct?
MR. RUFUS DATCHER: Yes, sir.
MR. HERBERT DATCHER: Yes, sir.”

With respect to the satisfaction of the third criterion, the State is twice blessed. There is initially the following pertinent portion of the above-quoted colloquy:

“THE COURT:... It is my understanding you know what a jury is ... is that correct?
MR. HERBERT DATCHER: Yes, sir.”

Although that may well be enough, our present holding in this regard rests upon a broader predicate. On August 16, 1977, the appellant signed a form entitled “Plea and Election of Court Trial or Jury Trial.” His signature was witnessed by Assistant Public Defender Earl Carey, who also signed the form. The following four lines, of the twelve printed lines above the appellant’s signature, are of pertinence here on the issue of knowledge:

“I know that I have a right to be tried by a jury of 12 persons or by the court without a jury. I am aware that before a finding of guilty in a jury trial all 12 jurors must find that I am guilty beyond a reasonable doubt.”

Appropriate inquiry was made of the appellant on the record. The appellant elected trial by court. The inquiry revealed that the appellant made this election with adequate knowledge of his right to trial by jury and with an adequate understanding of the general nature of that right.

The appellant also contends that he was denied the effective assistance of counsel. This issue was not raised or decided below and is not properly before us. Maryland Rule 1085; Boswell v. State, 5 Md. App. 571.

The appellant also urges upon us that he was denied his Sixth Amendment right to confront his accusers when his lawyer and the State stipulated to the testimony of Jessie Goudy, the victim of the breaking and entering. The point was not raised or decided below and has not been preserved for appellate review. Maryland Rule 1085.

It is with ill grace that the appellant makes his final contention. After having been convicted of daytime housebreaking, the appellant was given a significant “break” when his three-year sentence was suspended and he was placed on one year’s probation with an order to pay court costs and to make restitution in the amount of $425. Taken from the victims as a result of the housebreaking was property of a total value of $1890. Once again, the exception to the order of restitution was not made or ruled upon below and is not preserved for appellate review. Maryland Rule 1085.

Judgment affirmed; costs to be paid by appellant.

      . Our earlier holding in Countess v. State, to the effect that the signing and reading of the election form set out in Rule 735 b represents solid evidence that the subscribing defendant thereby understands the attributes of a jury trial, was reinforced by the following strong dictum in Jones:

      “A defendant reading that form would be apprised of his right to a jury trial, that a jury consists of twelve persons, and that in order to be convicted in a jury trial all twelve jurors must find a defendant guilty beyond a reasonable doubt.”

      . We note that we here employ the same informal usage for which the appellant, in his first contention, sought to pinion Judge Caplan. Quod Erat Demonstrandum.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    CHARLES EARL WENGER v. SUSAN WICKERSHAM WENGER
    [No. 722,
    September Term, 1978.]

      Decided June 7, 1979.

    The cause was argued before Moylan, Couch and MacDaniel, JJ.

      Allen J. Kruger, with whom was Paul J. McGarvey on the brief, for appellant.

      Robert R. Michaelwith whom was John V. Long on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This appeal puts squarely before us the proper function of the Chancellor vis-a-vis a Report and Recommendation of a Domestic Relations Master. At issue specifically in this case is the amount of money to be awarded in 1) child support pendente lite and 2) alimony pendente lite. The Domestic Relations Master made initial recommendations in these regards. The Chancellor raised both amounts. The extensive testimony taken in a hearing before the Domestic Relations Master and the extensive findings of fact made by him were such that the evidence was legally sufficient to support either the lower award or the larger award. Neither the determination of the lesser figure nor of the greater figure represented an abuse of discretion so as to require reversal.

The question is clearly one of who has the ultimate discretion. If the Chancellor may override the recommendations of the Master only where the Master was clearly erroneous in his findings of fact or abused his discretion, the Chancellor here was wrong. If, upon the other hand, the Chancellor, based upon his own findings of fact or upon the findings of fact made by the Master, may exercise his own discretion as to the ultimate amount of the awards, the Chancellor here did not abuse his discretion and will not be reversed.

The Appellant, Charles Earl Wenger (Husband), and the Appellee, Susan Wickersham Wenger (Wife), were married on July 15, 1967. Two children were born of that marriage, a girl and a boy, who at the time of this litigation were eight and seven years old, respectively.

On July 22, 1977, the Wife sued the Husband for an absolute divorce, for child custody, child support and alimony, the last three on both a pendente lite and permanent basis. The first procedural step was a Show Cause Order directed to the Husband inquiring why he should not comply with the pendente lite relief prayed. On September 18, 1977, the Husband filed an answer. On December 28, 1977, the issues of pendente lite custody, child support and alimony came on for a hearing before Domestic Relations Master Louis Cohen. Because of the length of the testimony, the hearing could not be concluded in a single day and was continued until March 29, 1978. On May 2, 1978, the Report of the Domestic Relations Master was filed.

In reviewing the Master’s Report, it will assist later analysis if we keep distinct his five pages of “Findings of Fact” and his Vz page of “Recommendations.” As we shall discuss more fully, the degrees of deference due the two functions of the Master — that is, the fact-finding function and the recommending function — differ markedly. Based upon his findings, the Master recommended that temporary child custody be awarded the Wife. The Husband does not dispute this recommendation. Based upon his findings, the Master recommended that child support pendente lite be in the amount of $600 per month. The Husband took exception to this, claiming the figure to be excessive. The Wife also took exception, claiming the figure to be inadequate. Based upon his findings, the Master recommended that the Wife be denied alimony pendente lite. The Wife took exception to this.

The Report of the Domestic Relations Master, together with the exceptions filed thereto by both Husband and Wife, came before Judge Stanley B. Frosh, sitting in Chancery for Montgomery County. Judge Frosh did not find it necessary to convene a hearing for additional or de novo fact-finding. He proceeded to fashion his ultimate decree on the basis of the Report and its findings of fact, the exceptions taken to that Report and “all relevant facts.” The option of not convening a hearing is made clear by Rule S 74.f.4 of the “Court Rules — Sixth Judicial Circuit of Maryland,” which provides, in pertinent part:

“Upon the filing of exceptions pursuant to this section, the proceedings shall be referred to the Court. The Court shall then rule upon exceptions on the recordunless it shall determine that a hearing is required, in which event the Court shall refer the proceedings and the exceptions to the Assignment Office for the scheduling of a hearing on the exceptions and the notification of counsel.” (Emphasis supplied)

The propriety of this option was affirmed by us in Rand v. Rand, 33 Md. App. 527, 365 A. 2d 586 (1976), vacated on other grounds, 280 Md. 508, 374 A. 2d 900 (1977), where Judge Menchine said for us, at 33 Md. App. 535:

“Accordingly, we see no illegality or impropriety in the enactment of a local rule leaving to the discretion of the trial court the question whether a court hearing upon the exceptions is necessary or desirable.”

In making his ultimate decision on the question of child support pendente lite, Judge Frosh made it very clear that his factual predicate was “the record” made before the Master, as well as the Report of the Master and the Exception taken to it:

“The Court has examined the Report, Exceptions and all relevant facts in reaching its decision. The Court is of the opinion that the record reflects the actual needs for the support and maintenance of the minor children exceed the amount determined by the Master and that the Husband can and should contribute, pendente lite, the sum of $900.00 per month and that the Master clearly erred in his recommendation. (Emphasis supplied)

We note at the outset that the record made before the Domestic Relations Master was ample to support either the Chancellor’s figure of $900.00 per month or the Master’s figure of $600.00 per month. Itemized monthly expenses for the children tended to show a monthly need of $300.00 for anticipated rent; $236.00 for food; $120.00 for clothing; $78.00 for medical needs; $51.00 for transportation; $116.00 for recreation; $68.00 for life and accident insurance; $5.00 for telephone; $22.00 for incidentals; $250.00 for child care; $40.00 for school supplies; $8.00 for gifts; and $105.00 for dental-orthodontia needs, a total of $1399.00 per month. The Master concluded that the “needs appear inordinate.” He made a “reasonable readjustment of the needs of the children” so that they should not exceed $600.00 per month. Part of the inevitable balancing was the net monthly income of the Husband. In addition to the salary of the Husband, substantial assets were shown in him — the ownership of nine warehouses. The Chancellor balanced the Husband’s ability to pay against the need of the children and came up with $900.00 per month, which was also substantially below the $1399.00 per month claimed by the Wife. Both the Chancellor’s figure and the Master’s figure were within the legitimate discretionary range. Provided only that the right officer of the court make the determination, either determination would be upheld upon appellate review.

In making his ultimate decision on the question of alimony pendente lite, Judge Frosh again made it very clear that his factual predicate was “the record.” He awarded the Wife $300.00 per month as alimony pendente lite.

“As to the issue of alimony, pendente lite, the Court finds that the Master erred in his recommendation in denying alimony and that the Plaintiff has actual need for personal support. Based upon the record’s description of Defendant’s actual assets, the Court finds that Defendant has the ability to pay alimony, pendente lite, to Plaintiff in the sum of $300.00 per month.” (Emphasis supplied)

Once again, we note that the record made before the Domestic Relations Master was ample to support either the Chancellor’s figure of $300.00 per month ($926.00 minus $660.00) or the Master’s figure of zero ($705.00 minus $720.00). The Wife showed monthly expenses of approximately $926.00 for herself and claimed a net monthly income of $660.00. Using her financial statement for the first 11 months of the year and then dividing by 11 the Master concluded that the Wife’s monthly income was $720.00. The Master chose to discount a $200.00 per month figure for anticipated income tax on the alimony and disallowed a $25.00 per month figure for life and accident insurance. The Chancellor allowed these figures to enter into his own calculation. Once again, provided only that the right officer of the court make the determination, either determination would be upheld upon appellate review as not being an abuse of discretion.

The appellant, articulating it most explicitly in his reply brief, seeks to analogize the Chancellor vis-a-vis the Master to an appellate court vis-a-vis a trial court:

“[T]he Chancellor set aside the decision of the Master without showing that the Master’s findings were clearly erroneous. At a minimum, the Chancellor should be required to make the requisite showing that the Master’s findings were clearly erroneous before setting them aside.
The ‘clearly erroneous’ standard of review set forth in Bris Realty is the same as that under Maryland Rules 886 and 1086 applicable to appellate courts. Since there are few reported cases on the application of the standard to the relationship of master and chancellor, however, and there is an abundance of case law under Rule 1086 applying the standard, Rule 1086 case law is cited as analogous.”

The appellant, in reply brief, goes on:

“Furthermore, the function of the reviewing court [in this case, the Chancellor] is ‘not to determine whether, on the evidence, (it) might have reached a different conclusion, but rather to determine from the evidence, and the proper inferences therefrom, whether it was legally sufficient to warrant the finding’ of the Master.”

Despite the presence of the phrase “clearly erroneous” as a common factor, the analogy between the two relationships is a false and deceptively treacherous one. A given set of facts does not lead mechanically to a single, automatic disposition but may support a range of discretionary dispositions. When an appellate court, absent clear error, defers to a trial court, it defers not only to the fact-finding but to any legitimate verdict, disposition or judgment emanating from that fact-finding. The function of the chancellor vis-a-vis the master is quite different. He may, of course, order de novo fact-finding in whole or in part. Where he chooses to rely exclusively upon the report of the master, however, he should defer to the fact-finding of the master where that fact-finding is supported by credible evidence and is not, therefore, clearly erroneous. The chancellor, however, (unlike the appellate court) always reserves unto himself the prerogative of what to make of those facts — the ultimate disposition of the case.

Chancellors — as judicial officers — may never delegate away a part of the decision-making function to a master — a non-judicial officer. As Judge Smith put it starkly for the Court of Appeals in In Re Anderson, 272 Md. 85, 321 A. 2d 516, 527 (1974), “Masters are not judges and, therefore, are not vested with any part of the judicial power of the State.” Anderson quoted with approval Boston v. Nichols, 47 Ill. 353, 359:

“It is not the province of the master to adjudge and finally determine upon the rights of the parties. That belongs to the chancellor, and he cannot delegate it to another. The master is a ministerial and not a judicial officer.”

In Swisher v. Brady, 438 U. S. 204, 98 S. Ct. 2699, 57 L.Ed.2d 705, 711 (1978), the Supreme Court summarized both Anderson and the Maryland law:

“Central to this holding was the court’s conclusion that masters in Maryland serve only as ministerial assistants to judges; although authorized to hear evidence, report findings and make recommendations to the judge, masters are entrusted with none of the judicial power of the State, including the sine qua non of judicial office — the power to enter a binding judgment.”

If the chancellor had no choice but to affirm the recommendation of the master (or his finding of the ultimate, conclusory fact which is indistinguishable from the recommendation) unless it was “clearly erroneous,” this would be the forbidden delegation of the judicial function. That this may never be done was made clear for this Court by Judge Morton in Ellis v. Ellis, 19 Md. App. 361, 365, 311 A. 2d 428:

“Litigants ... in all judicial proceedings, are entitled to have their cause determined ultimately by a duly qualified judge of a court of competent jurisdiction. Md. Const., Art. IV, § 1; Md. Code, Art. 26, § 30; Md. Rule 71 a. While the system of resorting to Masters is one of long standing and undoubtedly has salutary effects resulting in the more expeditious dispatch of the judicial process, the system cannot supplant the ultimate role of judges in the judicial process itself.”

On the other hand, the chancellor may delegate to a master the job of at least tentative fact-finding. In the interest of conserving valuable judicial resources, much laborious and time-consuming fact-finding has traditionally been carried out in the equity courts by masters (including auditors, referees, commissioners and examiners). In recognition of this valuable function, our case law is replete with statements about the deference that will be paid to the findings of fact by the master, who heard the witnesses and observed their demeanor, unless such fact-finding is clearly erroneous. Bris Realty v. Phoenix, supra, at 238 Md. 89 (and cases there cited). This is based upon the sound principle that the master saw and heard the witnesses and was able to make the subtle judgments based upon appearance, upon tone of voice, upon even non-verbal communication, etc. that are never available upon the pages of a transcript as perused after the fact either by a chancellor in his chambers or an appellate court upon later review. What must be carefully observed, however, is that the great deference is paid to the fact-finding of the master as opposed to the recommendation of the master. Upon his findings of fact, the master recommends an ultimate disposition. Upon those same findings of fact, the chancellor must make his own independent disposition. He may be guided by the recommendation of the master but he is no more than guided.

In Bar Association v. Marshall, 269 Md. 510, 515-516, 307 A. 2d 677 (1973), Judge Digges well analyzed the function of the master’s fact-finding:

“This conflict presents a question for determination initially by the hearing panel and then by this Court____In resolving' this conflict in the testimony, we consider the findings of fact of the hearing court in support of its recommendation to have, before us, a similar force and effect to those contained in a master’s report in equity. See In Re Member of Bar, 226 A. 2d 705 (Del. 1967). Previous opinions of this Court have discussed the importance to be attached to the findings of fact in a master’s report by the ultimate trier of fact. In those cases we have said that although the report is only advisory, the court should give full consideration to it, particularly with respect to the credibility of witnesses, where the testimony is conflicting. And, the master’s findings of fact from the evidence are prima facie correct and they will not be disturbed unless determined to be clearly erroneous. Bris Realty v. Phoenix, 238 Md. 84, 89, 208 A. 2d 68 (1965); Alexander v. Hergenroeder, 226 Md. 559, 560, 174 A. 2d 580 (1961); Pinkston, Tr. v. Higham, 224 Md. 513, 522, 168 A. 2d 712 (1961); Maryland Lumber Co. v. White, 205 Md. 180, 196, 107 A. 2d 73 (1954).” (Emphasis supplied)

Indeed, Bar Association v. Marshall is the perfect vehicle to illustrate the dichotomy between the fact-finding function and the recommending function. The Court of Appeals was entertaining a disciplinary proceeding under its original jurisdiction. It transferred the proceedings to a specially designated three-judge panel of the Supreme Bench of Baltimore City for a hearing and recommendation as to proper disposition. That panel conducted a hearing and made its recommendation. It also forwarded “a summation of the factual findings which constitute the judges’ reasons for their recommendation.” 269 Md. at 512. The Court of Appeals first analogized its relationship to the three-judge panel, in such a disciplinary proceeding, to that of a chancellor to a master in equity. “[W]e consider the findings of fact of the hearing court in support of its recommendation to have, before us, a similar force and effect to those contained in a master’s report in equity.” 269 Md. at 516.

On one critical point, the respondent Marshall disputed the hearing panel’s finding of fact. The hearing panel had indicated that on that disputed fact, it did not believe Marshall. It was with direct reference to its adoption of the fact-finding of the hearing panel on this disputed fact that the above-quoted language about not disturbing the findings of fact unless clearly erroneous was written. The Court of Appeals, as the analogue of a chancellor in equity, deferred to the fact-finding of its designated hearing panel and said explicitly, “Accordingly, we adopt the hearing court’s findings of fact as our own.” 269 Md. at 516. Notwithstanding this full adoption of the panel’s fact-finding, when it came to the accompanying recommendation, the Court of Appeals went its own way:

“[T]he hearing court... recommended that he be suspended from the practice of law for one year. But, from the facts found by the hearing court and adopted by us, we conclude that Marshall’s actions violated more than just that Canon----[WJe have decided that we cannot accept the recommendation of the hearing court; rather the extreme sanction of disbarment must be imposed.” 269 Md. at 517-518. (Emphasis supplied)

Deference to the fact-finding does not imply necessary deference to the recommendation. Indeed, undue deference in this latter regard was roundly condemned by Ellis v. Ellis, supra, at 19 Md. App. 366:

“His action in signing the order was no more than a pro forma adoption of the Master’s recommendation. The appellant, in our opinion, was entitled to more than this under our judicial system. It was her right, not accorded here, to have an independent review by the Chancellor of the evidence and testimony taken before the Master, and it was her right to have the benefit of the Chancellor’s judgment, as distinguished from the Master’s alone____”

In one last effort to lock the chancellor in to what the master had recommended, the appellant treats the ultimate disposition as little more than the ineluctable conclusion from the fact-finding. In this regard, he confuses first-level facts with more abstract, second-level, conclusory or dispositional facts. A chancellor may defer to the master on such first-level facts as that a husband makes $50,000 a year; the yearly orthodontia bill is $1500; the rent is $300 a month; the bank account of thus and so is thus and so. On the other hand, such second-level, conclusory “facts” as the wife’s ultimate need or the husband’s ultimate ability to pay are dispositional in nature and are the ultimate province of the chancellor. Although in a different context, we made just such a semantic distinction in Walker v. State, 12 Md. App. 684, 694-695, 280 A. 2d 260 (1971):

“Where the resolution of a purely factual question is all that is involved, we, of necessity, give great weight to the finding of the hearing judge, and his decision will not be disturbed on appeal unless we find a clear abuse of discretion. The preliminary decision on the admissibility of a confession, however... is ‘a mixed question of law and fact.’ ... It is, therefore, a situation ‘where a conclusion of law as to a [constitutional] right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the [constitutional] question, to analyze the facts.’... We accord ‘an appropriate and substantial effect to [the trial court’s] resolutions of conflicts in evidence as to the occurrence or nonoccurrence of factual events and happenings. . .. But ... we cannot be precluded . . . from determining whether the circumstances under which the confession was made were such that its admission in evidence amounts to a denial of due process.’... What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of voluntariness.”

What the appellant here seeks to treat as fact-finding would be conclusive as to what the ultimate dollar amounts of child support and alimony pendente lite, of necessity, would have to be. That final determination (whether deemed a second-level, conclusory fact or not) remained in the discretion of the Chancellor.

That Judge Frosh had an adequate factual predicate for his ultimate disposition is not in dispute. The appellant’s contention that a chancellor must “listen to the recorded testimony of the proceedings or read a transcript of the proceedings before the Domestic Relations Master in its entirety” is without any support in law. In Rand v. Rand, supra, the chancellor “considered the report itself [of six pages, 33 Md. App. 537] with accompanying exhibits and has generally reviewed the two files.” 33 Md. App. at 529. (Emphasis supplied) It seems apparent from Bar Association v. Marshall, supra, that what was reviewed was “the summation of the factual findings which constitute the judges’ reasons for their recommendation.” 269 Md. at 512. In Ellis v. Ellis, supra, the thing that was condemned was the total lack of any factual review on the part of the chancellor. We said, at 19 Md. App. 363:

“It is equally clear that the so-called report of the Master contained no summary of the testimony adduced at the hearing and set forth no findings or basis for his recommendation. In fact, the report was simply a recommendation, without supportive reasons of any nature.”

The clear implication is that a summary of the evidence would have sufficed.

In the case at bar, there were five pages of “Findings of Fact.” Judge Frosh explicitly set forth the factual predicate for his disposition:

“The Court has examined the Report, Exceptions and all relevant facts in reaching its decision.”

We see no error.

Judgment affirmed; costs to be paid by appellant.

      . The use of the language underlined is unfortunate. There was nothing “erroneous” about the Master’s recommendation. It was rather the case that the Chancellor, in the appropriate exercise of his own discretion, simply chose not to follow it. That by no means implies that the recommendation was not within the legitimate range or was somehow “erroneous.” Sometimes to be followed and sometimes not to be followed is of the very nature of the thing — “recommendation.” When a variety of legitimate options are available, the ultimate and necessary choice of one does not imply that those not chosen were less than legitimate.

      2. See n. 1 supra.

      . The merely tentative nature of this delegated fact-finding was made clear by Judge Smith in In Re Anderson, supra, at 321 A. 2d 527:
      “We have pointed out that... under the procedure generally where masters are involved, a master hears evidence and then reports his findings of fact and his recommendations to the chancellor. We have also pointed out that a master’s findings do not become binding until approved by a judge of the court to which he reports.”

      . “One of the purposes of seeking the advice and recommendations of an auditor and master is to conserve the time of the court.”

        Bris Realty v. Phoenix, 238 Md. 84, 89, 208 A. 2d 68 (1965).

      . See Sewell v. Sewell, 218 Md. 63, 71, 145 A. 2d 422 (1958).

      . Even here, the careful reader of case law must never wrench statements, and the tone of statements, loose from their generative procedural context. Bris Realty v. Phoenix, supra, is regularly quoted, as it is in this case, for the proposition:
      “The cases of Maryland Lumber Co. v. White, 205 Md. 180, Pinkston v. Higham, 224 Md. 513, and Alexander v. Hergenroeder, 226 Md. 559, all dealing with reports of masters in chancery, clearly indicate our view that a master’s findings are prima facie correct____Exceptions to a report of an auditor and master will not be sustained unless his findings of fact from the evidence are clearly erroneous, or unless he misapplies the law to his findings of fact. Alexander v. Hergenroeder, supra. ”

        Bris Realty and all three of the cases it cites dealt with situations where the chancellor approved and adopted the findings and the recommendations of the master and where the losing party was seeking, at the appellate stage, to attack the combined action of chancellor and master. The deference, expressed in these cases, for the appellate court vis-a-vis the trial court is not uncritically transferable to the chancellor vis-a-vis the master. Yet just such imprecision of thought is frightfully rampant in trial and appellate advocacy. Less dangerous than Bris Realty is the more careful wording of Chief Judge Brune in Maryland Lumber Co. v. White, supra, at 205 Md. 196:
      “The master in this case saw and heard the witnesses and made his report on the facts and the law which the Court approved and adopted after hearing exceptions and objections from both sides; and judgment was entered in accordance with the master’s findings and recommendations. Findings of fact so made and approved should not be set aside by this Court unless clearly erroneous. ’’ (Emphasis supplied)


author: Thompson, J.,

text:
    A. MICHAEL HOOKE et al. v. EQUITABLE CREDIT CORPORATION et al.
    [No. 978,
    September Term, 1978.]

      Decided June 8, 1979.

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

      Benjamin Swogell for appellants.

      Phillips L. Goldsborough, III, with whom were James P. O’Sullivan and Smith, Somerville & Case on the brief, for appellee Equitable Credit Corporation. Submitted on brief by Richard H. Lerch and Lerch & Huesman for appellee Herbert M. Katzenberg. Submitted on brief by Archibald Eccleston, III, Ronald W. Fuchs and Eccleston & Seidler for appellee John Balder.
   Thompson, J.,

delivered the opinion of the Court.

A. Michael Hooke and Marguerite E. Hooke, his wife, appellants, sued Equitable Credit Corporation, John Balder, and Herbert M. Katzenberg, appellees, in the Superior Court of Baltimore City, alleging the malicious use of civil process. Appellees demurred to the amended declaration, as supplemented by a bill of particulars, and the court sustained the demurrer without leave to amend. Appellants now challenge the propriety of that holding. We reverse.

The following facts may be deduced from a reading of the declaration and the bill of particulars: Appellees Balder and Katzenberg, are the sole stockholders and owners of appellee Equitable Credit Corporation (Equitable). On March 14,1974, Equitable loaned appellants as trustees the sum of $50,000.00 which loan was secured by a mortgage on property known as Sunnybrook Farm. That farm was the property of a trust estate of which appellants were trustees. The obligation was evidenced by a confessed judgment note signed by appellants in their capacities as trustees. Subsequently, appellees loaned to various corporations, of which appellant Michael Hooke was president, the sum of $100,000.00. This loan was evidenced by a confessed judgment note guaranteed by both appellants individually, but not as trustees of Sunnybrook Farm. Both notes fell into default and were recorded in the Superior Court of Baltimore by appellee Balder, acting on his own behalf and on behalf of the other appellees. Judgment was entered against appellants in their capacities as trustees in the amount of $165,000.00, even though appellees knew that appellants had not executed the $100,000.00 note as trustees and were not liable on it as such. Ultimately, appellants as trustees were absolved of responsibility on the $100,000.00 note but they incurred substantial expenses and attorney’s fees in establishing the absence of such liability. In the meantime, as the result of the confessed judgment, it is alleged in the bill of particulars a lien existed against the farm. Appellants had arranged for financing which would enable them to retire the mortgage held by appellees. This financing arrangement fell through, however, when the lien resulting from the second confessed judgment note was discovered. As the obligation covering the farm was in default, and because appellants were unable to obtain the financing which would retire that obligation, appellees foreclosed their mortgage and sold the farm. It is further alleged that the farm was sold for less than its full market value and that substantial foreclosure expenses were incurred.

In ruling on a demurrer the court is required to accept as true all well-pleaded facts and any reasonable inferences which may be drawn therefrom, Schwartz v. Merchants Mortgage Co., 272 Md. 305, 322 A. 2d 544 (1974), and only those matters which appear on the face of the amended declaration, as particularized, may be considered by the court. Edelstein v. Nationwide Mutual Insurance Co., 252 Md. 455, 463, 250 A. 2d 241 (1969).

To state a cause of action for malicious use of process a party must allege facts sufficient to show five elements. They are: (1) that a prior civil proceeding was instituted by the defendant; (2) that the proceeding was instituted without probable cause; (3) that the proceeding was instituted with malice; (4) that the proceeding terminated in favor of the defendant therein (the plaintiff in the resulting court action for malicious use of process); and (5) that special damages were sustained of a type not normally sustained in the prosecution of like causes of action. Siegman v. Equitable Trust Co., 267 Md. 309, 297 A. 2d 758 (1972); Herring v. Citizens Bank and Trust Co., 21 Md. App. 517, 321 A. 2d 182, 87 A.L.R.3d 527, cert. denied, 272 Md. 742 (1974). The failure to plead any one of these elements would render the declaration demurrable. In the present case only the elements of special damage and malice are claimed to be lacking.

I Special Damage

All of the appellees contend that the declaration and bill of particulars fail to allege special damages. In North Point Construction Co. v. Sagner, 185 Md. 200, 207, 44 A. 2d 441 (1945), the Court of Appeals said:

“Regardless of the attitude of the courts of other jurisdictions, concerning which there is much conflict, and regardless of the contrary view indicated in Restatement — Torts, Vol. 3, page 442, Maryland has steadfastly adhered to the so-called 'English’ rule that no action will lie for the malicious prosecution of a civil suit when there has been no arrest of the person, no seizure of the property of the defendant, and no special injury sustained which would not ordinarily result in all suits prosecuted for like causes of action____
The mere expense and annoyance of defending a civil action is not a sufficient special damage or injury to sustain an action for malicious prosecution.”

In light of this holding, we may readily dismiss the contention that expenses and attorney’s fees incurred in having the confessed judgment vacated constituted special damages. It is clear that they do not. It is likewise clear in the present case that there was no arrest of the appellants or actual seizure of their property. The question, therefore, is whether such other special injury was sustained “which would not ordinarily result in all suits prosecuted for like causes of action.” We have held that the creation of a judgment lien against the property, by itself, is the type of injury that would ordinarily result from the recording of a confessed judgment; therefore, the mere existence of the lien does not satisfy the special damage requirement. See Herring v. Citizens Bank and Trust Co., supra at 548-49. A more difficult question is presented by the allegation that the mortgage foreclosure could have been avoided if appellant’s refinancing arrangements had not been prevented by the judgment lien. The question which that allegation presents is this: Where but for the wrongful confession of judgment against him a party would have been able to prevent a mortgage foreclosure on his property, resulting in a pecuniary loss, has he suffered the kind of special damages which are recoverable in an action for malicious prosecution?

We are unaware of any case which defines with any precision what is meant by special damages in this context. It is clear from many of the statements in the Maryland cases that the term may go beyond the strict categories of arrest of a party or actual seizure of his property, see, e.g., Owens v. Graetzel, 149 Md. 689, 695-96, 132 A. 265 (1926), characterizing the type of injury which must be shown as

“damages ... inflicted upon the plaintiff by arrest or imprisonment, by seizure of property or other special injury, which would not necessarily result in all suits prosecuted to recover for a like cause of action.” (Emphasis added.)

In the present case, the loss of the farm as alleged was a natural consequence of the special circumstances which existed. Appellees held the mortgage on the farm. According to the allegations, when appellants’ obligation went into default they attempted to retire it through refinancing. An agreement was reached with a lender by which appellant would be able to prevent the foreclosure but when the lien was discovered the refinancing plan had to be abandoned. As a consequence, appellants were unable to prevent the mortgage foreclosure. Thus, the wrongful act of appellees made possible the foreclosure of a mortgage which they held, with the resulting alleged loss to appellants. This is not the sort of injury which necessarily follows from the filing of a confessed judgment, but it was the natural consequence of the special circumstances existing in this case. Accordingly, we conclude that the declaration as particularized contains a sufficient allegation of special damages.

II Malice

Only one of the appellees, Equitable Credit Corporation, addresses the sufficiency of the allegation of malice. Appellants have alleged that the $100,000 note was not executed by them in their capacities as trustees for Sunnybrook Farm. They also allege that appellees had prepared the notes and other papers involved in the transaction and knew that appellants were not parties to the note as trustees. Appellees, nevertheless, confessed judgment on the note against appellants as trustees for the farm. Appellee Equitable concedes in its brief that these allegations are sufficient to show that the appellees acted without probable cause in entering the judgment.

The element of malice which must be proved to sustain an action for malicious prosecution, although listed as a separate element in the cases, may be inferred from the element of a want of probable cause. Exxon Corp. v. Kelly, 281 Md. 689, 381 A. 2d 1146 (1978); Kennedy v. Crouch, 191 Md. 580, 62 A. 2d 582 (1948); Owens v. Graetzel, supra. Appellee Equitable argues that appellants must allege facts independent of the lack of probable cause sufficient to show the existence of malice. To withstand a demurrer a party need only allege facts which, if proven, would entitle him to relief. If proof of lack of probable cause is sufficient to sustain a finding of malice, then an allegation sufficient to show a lack of probable cause is a sufficient allegation of malice for purposes of this tort. Any other holding would result in the anomalous rule that a party is required to plead more than he must prove. We conclude that in pleading facts sufficient to show a lack of probable cause, appellants also pleaded facts sufficient to support their claim of malice, which, as required, was alleged in general terms.

Order dated August 15, 1978 sustaining demurrer without leave to amend reversed.

Case remanded.

Costs to abide final result.

      . Maryland Rule 203 provides that an action shall be prosecuted in the name of the real party in interest. Section b of the rule further provides that an action may be brought by a trustee under an express trust or a trustee in bankruptcy without ioining the beneficiaries. If the plaintiffs are proceeding in their individual capacities they have no basis for recovery on the facts alleged; if they are proceeding as trustees they have not only failed to so state, but they have also failed to allege any facts tending to show either an express trust or a trusteeship in bankruptcy. In Bradford v. Street, 84 Md. 273, 35 A. 886 (1896) the Court of Appeals remarked that where a trustee brings suit in such capacity he should state in the declaration how he came to be such trustee because, “whether he can sue and recover from the defendants ... depends uj)on the circumstances under which he was appointed and the powers with which he was vested.” 84 Md. at 281.
      The instant case is before the Court on a demurrer and only those defects in the pleadings which are raised by the demurrers are considered. Maryland Rule 345; Hall v. Barlow Corp., 255 Md. 28, 41, 255 A. 2d 873 (1969); Sanford v. Sanford, 15 Md. App. 390, 290 A. 2d 812 (1972). On remand an amendment should be allowed. Hall v. Barlow Corp., supra, at 39.

      . See however Barry Properties v. Fick Bros., 277 Md. 15, 353 A. 2d 222 (1976) holding Maryland’s mechanics’ lien law partially unconstitutional. Note particularly:
      “Consequently, in light of the effect a Maryland mechanics’ lien has on property, we conclude that an owner is deprived of a ‘significant property interest’ when a lien is imposed and thus, the limitations of due process are applicable. The Supreme Court of Connecticut reached the same conclusion, based on similar reasoning, with respect to that state’s mechanics’ lien law, one not unlike our own. Roundhouse Constr. Corp. v. Telesco Masons Supplies Co., Conn., A. 2d [February Term, 1975, decided April 22, 1975], vacated ana remanded, U.S., 96 S. Ct. 20 (1975) (for determination of whether the decision was based on federal or state grounds or both), reaffirmed, Conn., A. 2d [decided January 27,1976](based on both federal and state grounds). Additionally, we mention that other courts have concluded that prejudgment attachments of realty deny the owner a significant property interest. See, e.g., Bay State Harness Horse Racing and Breeding Ass’n, Inc. v. PPG Industries, Inc., 365 F. Supp. 1299, 1304-06 (D. Mass. 1973) (three judge court); Gunter v. Merchants Warren Nat’l Bank, 360 F. Supp. 1085, 1089-90 (D. Me. 1973) (three-judge court).” Id. at 24-25. (Footnote omitted.)


author: Morton, J.,

text:
    JAMES D. ROBINSON v. STATE OF MARYLAND
    [No. 1016,
    September Term, 1978.]

      Decided June 8, 1979.

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

      Thomas J. Saunders, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

James D. Robinson, appellant, was convicted in a non-jury trial in the Circuit Court for Anne Arundel County of the crime of escape (Md. Code, art. 27, § 139) and sentenced to the .Division of Correction for a term of eight months to be served consecutively to any sentence he was then serving.

In this appeal appellant contends that “[t]he trial judge erred in refusing to consider Appellant’s defense of compulsion to the crime of escape.”

The record indicates that on May 13, 1978, appellant was incarcerated at the Maryland Correctional Camp Center in Jessup, Anne Arundel County, Maryland, and about 9:45 p.m. on that date he departed from the premises without permission. On May 30, 1978, appellant “turned himself in” to the police authorities of Baltimore City. At trial, appellant testified that while a member of the Maryland Penitentiary population, he “helped some officials out” as a result of which he was “jumped on” by several of his fellow inmates. He was then transferred to the Maryland House of Correction where he was placed “on protective custody status.” Sometime later he was sent to the Maryland Correctional Camp Center. According to appellant, “fw]hen I went to the Camp Center I had trouble with three inmates and I got cut in the back over there the night that I left and that’s the reason why I left.”

Prior to the assault he had complained to a correctional officer of his fear of attacks by certain fellow inmates and was told “if you can’t handle the Camp Center we’ll send you back to the Maryland House of Correction.” About an hour later he “was called into the bathroom and jumped on by the three inmates and cut on my back.” When questioned about his actual escape, he said: “I knew exactly what I was facing, but instead of staying there and getting stabbed or going to sleep and getting stabbed, I left.” When asked: “So, in other words, what you’re saying is that you left out of fear for your life?,” appellant replied: “Yes sir.”

At the conclusion of the testimony trial counsel for appellant argued, as his appellate counsel does in this Court, that appellant’s escape was excused because he “acted under a compelling force of coercion or duress.” In response to counsel’s argument, the trial judge announced:

“It may well be that some day some Court will structure certain guidelines for determining ... just how coercion or duress is to be measured insofar as inmates’ escapes are concerned, but I am certainly not going to undertake to structure such guidelines.... I am not aware of any principle that there can be justification or excuse as such, a justification which would excuse the act so to speak from being a violation of the statutory crime of escape.”

We agree with appellant that the trial judge erred in refusing to pass upon the appellant’s defense of coercion, compulsion, duress or necessity. Counsel for both appellant and the State agree that for the purposes of this case, the terms may be treated interchangeably, although some authorities have sought to make a distinction among the terms. Stewart v. United States, 370 A. 2d 1374 (D.C. Ct. App. 1977); 43 U. Cin. L. Rev., 956-60 (1974).

While it would appear that our Maryland appellate courts have not addressed the applicability of such a defense specifically to the crime of escape, this Court did say, in Frasher v. State, 8 Md. App. 439, 447-48 (1970):

“It is essential to a crime that the defendant committed a voluntary act.... The voluntary requirement of the criminal act relates directly to compulsion; it is a defense as to all crimes except taking the life of an innocent person that the defendant acted under a compelling force of coercion or duress. 1 Wharton’s Criminal Law (Anderson) § 123, p. 261. The compulsion may be by necessity, that is duress arising from circumstances, or by the application of duress on the defendant by another person.”

Counsel for appellant asserts that “[sjeveral jurisdictions have recently shed a traditional reluctance to apply this defense to a charge of escape” and counsel for the State “concedes that there is a trend to recognize the defense” and urges us “to recognize the defense in a proper setting,” asserting that this case does not constitute such a setting.

Both sides recommend that we adopt the guidelines set forth in what they term the leading case of People v. Lovercamp, 43 Cal. App. 3d 823, 69 ALR 3d 668 (1975). There the court observed:

“[RJather early in the legal history of the offense of escape, it became clear that all departures from lawful custody were not necessarily escapes or, to put it more accurately, there was a possible defense to an escape charge, to wit, necessity. In 1 Hale P.C. 611 (1736), it was written that if a prison caught fire and a prisoner departed to save his life, the necessity to save his life ‘excuseth the felony.’ So, too, we may assume that a prisoner with his back to the wall, facing a gang of fellow inmates approaching him with drawn knives, who are making it very clear that they intend to kill him, might be expected to go over the wall rather than remain and be a martyr to the principle of prison discipline.”

The facts in Lovercamp, as delineated in the opinion of the court, were as follows: Two women inmates of the California Rehabilitation Center “had been in the institution about two and one-half months and during that time they had been threatened continuously by a group of lesbian inmates who told them they were to perform lesbian acts — the exact expression was ‘fuck or fight.’ They complained to the authorities several times but nothing was done about their complaints. On the day of the escape, 10 or 15 of these lesbian inmates approached them and again offered them the alternative ‘fuck or fight.’ This time there was a fight, the results of which were not outlined in the offer of proof. After the fight Ms. Wynashe [co-defendant] and defendant were told by this group of lesbians that they ‘would see the group again.''' The women thereupon departed from the center and “were promptly captured in a hayfield a few yards away.”

At trial Ms. Lovercamp’s offer to prove the facts surrounding the leave-taking of the institution by her and her fellow inmate was refused by the trial judge and they were convicted of escape. In reversing the conviction, the California appellate court announced:

“While we conclude that under certain circumstances a defense of necessity may be proven by the defendant, at the same time we place rigid limitations on the viability of the defense in order to insure that the rights and interests of society will not be impinged upon. We have not formulated a new rule of law but rather have applied rules long ago established in a manner which effects fundamental justice.”

The court then went on to hold that a limited defense of necessity is available to an individual charged with the crime of escape if the following conditions exist:

“(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which makes any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.”

We think these guidelines represent a sound and reasonable approach to the problems arising in our prison institutions which may occasionally force upon a member of the prison population a choice between escaping or subjecting himself to death or serious bodily harm. A person charged with the crime of escape should have available to him the defense of necessity or compulsion if he can demonstrate to the satisfaction of the judge or jury that the facts surrounding his escape fall strictly within the guidelines set out above in Lovercamp.

The attorney general’s representative, while agreeing that the rule of Lovercamp should be adopted by the courts of this State, urges that the record before us facially demonstrates that the appellant has failed to satisfy the conditions of Lovercamp. While suggesting that appellant probably failed to meet conditions (1) and (2), it is vigorously argued that appellant remained free from custody for a period of some 17 days and that this conduct in itself manifestly constitutes a failure to comply with guideline (5) which requires that a prisoner immediately report to the proper authority when he has attained a position of safety from the immediate threat.

While this argument may or may not have some validity, the record before us is clear that the trial judge refused to recognize the defense of necessity or compulsion. We think the appellant was entitled to have the trial judge pass upon the facts developed in support of such a defense.

Accordingly, we shall reverse the conviction and remand the case for a new trial to enable the trial judge to review the evidence in light of the guidelines set forth herein.

Judgment reversed; case remanded for a new trial; costs to be paid by Anne Arundel County.

      . Appellant is correct in his contention that “several jurisdictions” have recently recognized the necessity defense in escape cases. See, e.g., People v. Hocquard, 236 N.W.2d 72 (Mich. 1975), People v. Davis, 306 N.E.2d 897 (Ill. 1974), and Roy v. Commonwealth, 500 S.W.2d 921 (Ky. 1973). See also Annot., Duress, Necessity, or Conditions of Confinement as Justification for Escape From Prison, 69 ALR 3d 678.

      . We do not agree with the holding of the court in People v. Unger, 362 N.E.2d 319 (Ill. 1977), that “the absence of one of the Lovercamp preconditions does not alone disprove the claim of necessity and should not therefore automatically preclude an instruction on the defense.” The defense, in our opinion, must generate factual compliance with each of the five guidelines where applicable.

      . The briefs submitted by counsel for appellant and the State were of high caliber and their oral arguments most nelpful to the Court.


author: MacDaniel, J.,

text:
    HERBERT S. HYATT et al. v. MARYLAND FEDERAL SAVINGS AND LOAN ASSOCIATION et al.
    [No. 1091,
    September Term, 1978.]

      Decided June 8, 1979.

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

      James R. Trimm for appellants.

      Kevin M. O’Connell and David E. Betts, with whom were Betts, Clogg & Murdock on the brief, for appellees.
   MacDaniel, J.,

delivered the opinion of the Court.

The appellants, Herbert S. and Jerry H. Hyatt, sought a judgment, in the Circuit Court for Montgomery County, declaring that a mortgage held by them was superior to any liens of Maryland Federal Savings and Loan Association, one of the appellees, and that any subordination agreements purporting to create superiority in Maryland Federal were null and void.

The evidence in the court below showed that on September 1,1971, Matthew M. Witenstein, the mortgagor, entered into a $47,500 purchase money mortgage with Paul A. Welsh, the mortgagee, in connection with the purchase by Witenstein of real estate from Welsh. The real estate (hereinafter referred to as the “subject property”) consisted of 11.0286 acres in Damascus, Montgomery County, Maryland. The property was described in the mortgage by metes and bounds. The mortgage was recorded on September 1,1972, among the land records of Montgomery County. It included the fpllowing provision:

“This mortgage will be subordinated to bona fide ground development and construction loans____”

On July 20, 1972, Welsh borrowed $7,500 from the Bank of Damascus (hereinafter “the Bank”) and “assigned” the mortgage to the Bank. A standard assignment form was recorded on July 25, 1975, and Witenstein was given notice. Herbert Hyatt, President of the Bank, testified in the court below regarding the purpose of the “assignment.” He said:

“Q The bank originally took the assignment purely as collateral security for the $7,500 loan, is that correct?
A That was the original intent; yes, sir.
Q And, —
A However, it was assigned and completely recorded.
Q Well, the purpose —
A But the purpose was in order to allow him credit so that he could borrow money.
Q In other words, it was used as collateral security for the loan of $7,500.00?
A That’s true.”

The Bank took over collection on the mortgage. Mr. Hyatt explained:

“ ... we required that as additional security on the note, the $7,500.00 note. We put them in the Collection Department in every case so that he could not get the payment from Witenstein and spend it without us getting it.”

In September 1972, Witenstein made an interest payment on the mortgage to the Bank. Subsequently, Welsh refinanced the $7,500 demand note and replaced it with a new $7,500 note. The mortgage was still held as security and for collection.

On November 15,1972, Witenstein, individually and as the sole genera] partner of Damascus Developers, a limited partnership, signed and recorded a subdivision record plat respecting the subject property. The plat stated:

“There are no suits of action, leases, liens or trusts on the property included in this plan of subdivision.”

On December 5, 1972, Witenstein and Damascus Developers executed a mortgage to Maryland State Savings and Loan Association to secure a $284,000 loan. The mortgage, which created a lien on certain portions of the “subject property,” was recorded on December 6, 1972. An agreement between Witenstein and Welsh subordinating the $47,500 mortgage (which had been “assigned” to the Bank for collateral) to the mortgage with Maryland State Savings and Loan Association was recorded on December 7, 1972.

On January 25, 1973, the appellants purchased the $47,500 mortgage from Welsh for $25,000 in cash and assumption of payment of the $7,500 demand note. The agreement was reduced to writing, and the Bank assigned its interest in the mortgage to the appellants. The assignment was not recorded until April 11, 1975. The Bank still held the mortgage for collection, but it was no longer security for the $7,500 debt. Witenstein was notified of the purchase of the mortgage, and he continued to make payments to the Bank on the mortgage debt.

On September 2, 1973, Witenstein recorded a subdivision record plat for another portion of the “subject property.” The plat made the same statement as above regarding liens on the property. On February 28, 1974, another mortgage was executed between Witenstein/Damascus Developers and Maryland State Savings and Loan Association to secure a $200,000 loan. It was secured by most, but not all, of the “subject property” and was recorded on March 1, 1974. On March 4, 1974, another subordination agreement with Welsh was recorded.

In both of the Maryland State Savings and Loan Association mortgages and in the subordination agreements, the property affected was described according to the record plat subdivision and not by metes and bounds.

In 1974, the Maryland State Savings and Loan Association foreclosed on the $200,000 loan and, at the foreclosure sale, purchased the property affected by that mortgage. The remainder of the “subject property” is still owned by Witenstein who, on March 11, 1975, filed for bankruptcy.

At the time of the above foreclosure sale, the appellants were not aware that some of the property subject to their mortgage was being sold. Mr. Hyatt explained:

“The advertisement in the foreclosure proceedings only spoke of lots and blocks. Since I had no knowledge that there were lots and blocks attempted to be subdivided off the property I had no knowledge at all. I was confident that it just covered the townhouse development which was next to this.”

The appellants first discovered the facts surrounding the second and third mortgages in April 1975, when they had the title of the “subject property” searched in preparation for their own foreclosure. The title search revealed the subordination agreements. The last title search had been at the time that the $47,500 mortgage had been given as security to the Bank.

Mr. Hyatt was also questioned as follows with regard to the provision in the $47,500 mortgage that it would be subordinated to bona fide ground development and construction loans:

“Q But had you been asked to subordinate this mortgage in accordance with these terms you would have done it, wouldn’t you?
A If it had been in accordance with those terms, if it was a bona fide construction loan. However, these subordinations were not.
Q Were these not bona fide ground development loans, to your knowledge?
A Not on my property, not on the subject property.
Q On what do you base that statement?
A I’m positive. I live near there, and I looked at it, and there is what happened to it. It is growing up in weeds.
Q Did you make an inquiry to find out what happened to that money or where it went?
A I had no knowledge of anything. I didn’t know that there was money involved until the title report showed it.
Q Well, you are familiar with real estate sufficiently, I think, to answer this question. It is expensive to prepare and have engineering done, and prepare a plat; isn’t it?
A I suppose so.
Q Isn’t that a phase of ground development?
A It could be.
Q Isn’t it necessary before you can subdivide to have engineering work done?
A I would think so.
Q You don’t know whether the money went into the cost of engineering incident to the plat, do you?
A I — well, no. I have no direct knowledge of where the money went; however, that would not have been very much involved in that.”

The lower court held that Title 9 of the Uniform Commercial Code applied to the facts of this case and that, because the Bank had not filed a financing statement, it had an imperfect assignment of the $47,500 mortgage. Consequently, the lower court said, the Hyatts’ assignment also was imperfect, and they were unsecured creditors as far as third parties were concerned. The court concluded that the appellants had a lien superior to Maryland Federal Savings and Loan Association to the extent of $7,500 plus interest but that, beyond that amount, Maryland Federal had priority. The appellants now contest that ruling.

Both the appellants and the appellees have presented arguments to us concerning the applicability and interpretation of various provisions of the Uniform Commercial Code and the Real Property Article, and the lower court based its decision on the same. We find it unnecessary to reach these arguments, and we will uphold the lower court decision based on entirely different reasoning not directly addressed by any of the parties.

We consider Kennedy v. Betts, 33 Md. App. 258 (1976), to be binding on the present decision. In the Kennedy case, the appellant asked the Court to “decide that a first deed of trust, for her benefit, was not subordinated to a second deed of trust, notwithstanding a subordination agreement executed, with express authority, by the trustees named in the Kennedy, or first, deed of trust.” 33 Md. App. at 259. The “express authority” was as follows:

“ ‘... [T]he trustees, without the necessity of obtaining the prior consent of the Deed of Trust Note holder, shall enter into an Agreement subordinating this Deed of Trust to any and all bona fide construction and/or permanent loan placed upon the herein described premises or any portion or portions thereof...”

This Court said that in the record there was no showing as to the extent that the second mortgage monies were, or were not, used for construction or permanent loans. The Court refused to remand the case for further inquiry into the question, and refused to rule that the first deed of trust was not subordinated to the second. We explained the result as follows:

“The general rule is that where there is an agreement subordinating a first lien to a subsequent lien for purposes of a construction loan, in the absence of an express covenant from the subsequent lienor to the prior lienor to see to the application of the sums advanced, the diversion of funds on the part of the mortgagor is a risk run by the prior lienor unless he is able to demonstrate collusion between the mortgagor and the subsequent lienor. Gill v. Mission Savings & Loan Association, 236 Cal.App.2d 753, 46 Cal. Rptr. 456 (D. Ct. App. 1965); Iowa Loan and Trust Co. v. Plewe, 202 Iowa 79, 209 N. W. 399 (1926) , commented on in 12 Iowa L. Rev. 201, 203 (1927) ; Cambridge Acceptance Corp. v. Hockstein, supra; IV American Law of Property § 16.106 D (A. Casner ed. 1952); L. Jones, A Treatise of the Law of Mortgages of Real Property § 742 (8th ed. 1928); Note, 42 Yale L. J. 980, 982 (1933).
Capital did not promise, in the instant case, to see to the application of the sums it advanced. Even if we were to assume arguendo that the subordination agreement did somehow subject Capital to policing its monetary advances to the borrower, the proof of the amount expended by the borrower for other purposes is utterly lacking. In our view, when a party who has subordinated his lien for some express purpose to a subsequent lienor seeks to avoid the effect of the subordination agreement on the ground that the purpose of the agreement has been frustrated by the subsequent lienor, it is incumbent upon the prior lienor to prove the allegata. He may not simply assert the contention and thereby shift to the subsequent lienor the burden of disproving the averment.
We think the record amply demonstrates that the case now before us falls within the ambit of the general rule inasmuch as collusion is not present, and that Judge Clapp properly overruled the appellant’s exceptions to the auditor’s report. That the appellant did not obtain the contemplated value for her property is no reason to abrogate the subordination agreement so as to restore appellant to the priority position that she bargained away.” (Footnote omitted.) 33 Md. App. at 262-63.

In the present case, a clause in the original $47,500 mortgage addressed the issue of subordination to subsequent “ground development and construction” loans. Such a clause is subject to the normal rules of contract construction, Jones v. John S. Stubbs & Assoc., 243 Md. 480, 483 (1966). We hold that the clear meaning of the clause in the original mortgage was that the mortgage would, by the operation of that clause, become subordinated to all subsequent bona fide ground development and construction loans. Therefore, there is no need to address the question of priority, or perfection, of liens or of the validity of the assignments of the original mortgage. In addition, because the signed subordination agreements were not required by the above clause, and, hence, were superfluous, we need not address the question of whether they were signed by the proper parties.

The one issue raised by the subordination clause is whether the subsequent mortgages were bona fide ground development and construction loans. As indicated in the Kennedy case, supra, unless a duty to police is placed on the subsequent mortgagee, the later loans are presumed to be bona fide for the purposes specified. The burden is then on the original lien-holder to rebut that presumption with evidence of diversion and collusion if he wishes to defeat the priority of the later liens.

A thorough review of the record extract in this case convinces us that the appellants failed to meet their burden of showing that any of the monies from the subsequent loans were diverted from their proper uses under the subordination clause. Mr. Hyatt’s testimony that there had been no building on the subject property is not proof of any diversion of funds. As the appellees correctly pointed out in the court below, the money could have been used for preliminary engineering for the subdivision and plats. In addition, there may have been numerous other preliminary building expenses, such as architectural planning or water and sewer costs, which were not eliminated by the appellants. Nor does the fact that the subsequent mortgages made no mention of their purpose tend to show a diversion of funds since the subsequent mortgagee was under no duty to see to the proper application of the funds.

The appellants have also failed to show any fraud or collusion between Witenstein/Damascus Developers and the subsequent mortgagee. They argue that the misstatement of Witenstein on the subdivision plats with respect to the existence of any liens was fraud with respect to them. We disagree. The misstatements are not evidence that the subsequent loans were not bona fide. In addition, the appellants would have discovered, by a title search, the existence of the $284,000 mortgage and the first subdivision plat before they assumed the original mortgage from the Bank.

We hold, therefore, that the evidence introduced by the appellants amounts to “no more than a surmise, possibility, or conjecture” of diversion of funds, and collusion, and, as such, it is legally insufficient to satisfy the appellants’ burden. See Beahm v. Shortall, 279 Md. 321, 341-42 (1977), and the cases cited therein.

Although the lower court did not address the above issues, we will uphold its decision on this alternative basis. Since no legally sufficient evidence of diversion of funds or fraud was introduced below, no purpose would be served by remanding to the court below for additional fact-finding. Maryland Rule 1085. See also Kennedy v. Betts, supra.

Judgment affirmed.

Costs to be paid by appellants.

      . No parties to this case contest the priority of the appellants with respect to the $7,500 loan, and, therefore, we will not address the issue.

      . In the present case no duty was placed on the subsequent mortgagees, by the subordination clause, to ascertain that the money advanced was in fact put toward the specified purposes.