author: Lowe, J.,

text:
    MYERBERG, SAWYER & RUE, P.A. et al. v. DAVID M. AGEE et ux.
    [No. 1363,
    September Term, 1981.]

      Decided June 3, 1982.

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

      Ronald W. Fuchs, with whom were Paul F. Newhouse and Eccleston & Seidler on the brief, for appellants.

      George R. Sparling for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Appellants, a lawyer and his firm, were contractually engaged to examine title to unimproved property which appellees had contracted to purchase and, if title proved marketable, to effect the requisite conveyance. Appellants were informed that the appellees, who were moving from California, intended to build a new home on the site, which was to be financed and constructed on a predetermined schedule.

The conveyance was made by appellants who were apprised, and aware, of the consequences of unmarketable title, as well as the construction cost and interest increases that a delay may occasion in real estate transactions. Appellants verified the marketability of title and, as agents of a title insurance company, even elected to provide insurance therefor. They did not, however, inform appellees that there was no record of a right of ingress and egress between the property and a public way.

Based upon appellants’ assurance of marketability, appellees obtained a loan commitment from the Maryland National Bank after negotiating a construction price with a builder. On February 9, 1979, John Hanson Briscoe, the bank’s attorney, informed appellants and appellees that his title search disclosed no recorded right of access to the property, and that the bank would not honor its commitment, absent some record of right of way.

After a time, appellants attempted to negotiate the purchase of a right of way from an adjoining landowner (at appellants’ expense). Appellants also offered to purchase the property from appellees at their cost, or to sue the neighbor for an easement by necessity. Preliminary purchase negotiations for a right of way were unsuccessful because the cost of compliance with the servient property owner’s requisites were too great, and, by that time, appellees had obtained other counsel. Eventually, in September of 1979, the title company delivered a mortgagee’s title insurance policy which guaranteed title and access in the amount of the proposed loan. In October, appellees successfully sued their neighbor to establish an easement by necessity, which was judicially declared on June 23, 1980.

Suit was subsequently filed against both appellants and the title company. Although the original declaration contained counts in contract and tort, the tort count was stricken and the case was tried on the contract count only. On motion by appellees, the Honorable Perry G. Bowen, Jr., presiding in the Circuit Court for Calvert County, granted summary judgment on the issue of liability, holding

"that the title to this property was unmarketable or unmerchantable from the time the Plaintiffs acquired it until the time this Decree was entered. . . .”

He explained upon entering summary judgment:

"That title is unmerchantable during that period of time because there isn’t a single lawyer in this room that would have allowed a client not already in that chain of title to purchase it without warning him of the existence of this defect in the title . .. .”

Judge Bowen subsequently informed the jury convened to determine damages, that

"it has been determined as a matter of law that each of the defendants in this case .. . are liable for the damages, if any, which the plaintiffs have sustained by virtue of the fact that the title to this piece of property was not good and merchantable of record.”

That ruling was the basis for the first question asked by appellants on this appeal.

"Is title to real property unmerchantable as a matter of law where there is no recorded means of access?”

Prefatorily, we caution that our response is limited to the facts of this case. Appellants point out, after equating an easement by necessity with adverse possession,

"[i]t is essential that the marketability of title for each parcel, whether the parcel is owned by adverse possession, or whether it enjoys access by an implied easement, must be evaluated on its own merits. There can be no blanket rule because such a rule is antithetical to the tests for determining the marketability of title, which rely entirely upon a reasoned and prudent examination of the facts underlying each case.”

We note, however, that appellants point to no fact or facts underlying this case relating to marketability about which they contend there was a genuine dispute. Appellants’ speculative allegation that

"[circumstances are easily imagined in which the use of an unrecorded right of way is so entrenched in the life and practice of a community that the exercise of ordinary business prudence would not preclude purchase of the property which must make use of the implied unrecorded easement,”

is not a matter that we will address. While acknowledging that summary judgment may not be appropriate in every case, here as we have noted, appellants have pointed to no disputed facts despite their suggestions to the contrary.

— marketability —

The appellants conceded below that "whether the title to property is marketable is a question of law for the court,” as held in Berlin v. Caplan, 211 Md. 333, 341 (1956), "and the opinion of a conveyancer or lawyer on that inquiry is here inadmissible.” Wlodarek v. Thrift, 178 Md. 453, 469 (1940). Both parties rely upon Berlin for its definition of marketability. There the Court drew upon holdings of prior cases to provide an excellent compendium for the consideration of a trial judge faced with this determination. Each of the parties here have stressed the excerpts most favorable to their view, but the essence of the discussion in Berlin is simply that the threat of, or need for, litigation to hold or obtain good title is an essential element in determining marketability.

"Of course, a vendee, by specific performance of a contract, should not be required to take real estate, the title to which is not free from doubt and which might subject him to litigation. Where the doubt as to the validity of the title produces real bona fide hesitation in a prudent man, not based on captious, frivolous, and astute niceties, the vendee should not be compelled by specific performance to take that title. Cityco Realty Co. v. Friedenwald, 130 Md. 329, 333, 100 A. 374. A title to be marketable need not be free from every conceivable technical criticism. However, if the defects are such as are sufficient to raise a reasonable doubt, such title is not marketable. Garner v. Union Trust Co., 185 Md. 386, 390, 45 A. 2d 106. A marketable title is one which a reasonable purchaser, who knows the facts and their legal bearing, would be willing to accept in the exercise of that prudence which business men ordinarily use in the transaction of their own affairs. Zulver Realty Co. v. Snyder, 191 Md. 374, 384, 62 A. 2d 276. If there is a reasonable probability that the purchaser may be subjected to the hazard of litigation to defend his title, that title is not marketable. Zepp v. Darnall, 191 Md. 68, 73, 59 A. 2d 774. A marketable title is one which is free from encumbrances and any reasonable doubt as to its validity and such that a reasonably intelligent person, who is well informed as to the facts and their legal bearing, and who is ready and willing to perform his contract, would be willing to accept in the exercise of ordinary business prudence. To be marketable the title must be so far free from defects as to enable the purchaser to not only hold the land in peace, but also, if he wishes to sell it, for him to be reasonably sure that no flaw in the title will appear to disturb its market value. A mere speculative possibility that a defect might appear sometime in the future will not render a title unmarketable. Sinclair v. Weber, 204 Md. 324, 334, 104 A. 2d 561.” Berlin, supra at 343-344.

By equating adverse possession with an easement by necessity, appellants contend that the easement decreed in favor of appellees always existed, without regard to whether there had been a judicial declaration thereof.

"Enjoying an easement by necessity is similar to owning land by adverse possession, in that neither will be a matter of record until litigation has occurred. But the fact that litigation has not occurred does not entail that one does not have marketable title in either case. Indeed, it has long been recognized by the Maryland Courts that title to property held by adverse possession may be marketable. Clarke v. Lacy, 213 Md. 482 (1957). If title by adverse possession is free from doubt and can be clearly proven, specific performance of the contract of sale will be granted. Garner v. Union Trust Co., 185 Md. 386 (1945).”

But appellants would overlook the factual qualifications of marketability vis-a-vis the facts they have recited to us in this case. Title by adverse possession is only marketable and thus specifically enforceable.

" . if the title is so clearly proved and so free from doubt that it may serve as a proper foundation for a decree against the purchaser.’ ” Clarke, supra at 490, quoting Garner, supra at 390.

In the case before us there is neither evidence nor proffer that the access subsequently determined to be an easement by necessity was, at the time of transfer of the property,

"free from reasonable doubt as to any question of law or fact that may call it in question in the future and subject the purchaser to the hazard of litigation.” Garner, supra at 389.

Precisely to the contrary, at the time the judge ruled, the undisputed facts were that litigation had been compelled and consummated by the decree of June 23,1980. Appellants do not contend that the property without access is marketable and we need not decide the ephemeral question of whether an easement by necessity exists where a decree has not been obtained. Marketability is not concerned with the results of litigation, only with its likelihood. The judge did not err.

— damages —

The next four issues raised by appellants deal with damages. In their brief, appellants summarized the items which the judge permitted the jury to consider in determining damages:

"1. Economic loss occasioned by the fact that the construction loan did not close on February 9,1979, made up of both increased costs of construction and increased costs of financing, measured by the difference between those costs in February, 1979, and March, 1981, the date of the trial.
2. Attorney’s fees expended to establish access to the property.
3. Capital gains tax paid because Appellees did not meet the time limitations for purchasing another residence with the proceeds obtained from the sale of the first residence.
4. The amount of the earned hazard insurance premium for the insurance which Appellees were compelled to purchase by the lending institution.
The jury returned a verdict in the amount of $66,491.94, of which $41,009.40 was assessed against the Appellants.”

Appellants contend that:

"The extent of the increased costs of construction and financing were not foreseeable to the appellants, and, thus, appellants are not liable in contract for these damages.”

Citing substantial authority that damages in this contract case are limited to those that are reasonably foreseeable, Sergeant Co. v. Pickett, 285 Md. 186, 193 (1979); Reamer v. Kessler, 233 Md. 311 (1964), appellants unsurprisingly do not contend that all of the aforesaid items of damage were unforeseeable so much as they complain of their magnitude.

"The increases in the costs of financing and construction which actually occurred in the instant case were of such a magnitude that even if increases of that same general kind were foreseeable, the increases which actually occurred were not foreseeable. It is thoroughly unreasonable to suppose that the Appellants could have foreseen that building costs would rise 48% in two years, or that interest rates would rise from 10V2% to 15% plus two points in two years.”

Appellants rely upon Restatement (Second) of Contracts, § 351, Comment (1981) for that premise.

"A contracting party is generally expected to take account of those risks that are foreseeable at the time he makes the contract. He is not, however, liable in the event of breach for loss that he did not at the time of contracting have reason to foresee as a probable result of such a breach. The mere circumstance that some loss was foreseeable, or even that some loss of the same general kind was foreseeable, will not suffice if the loss that actually occurred was not foreseeable.”

Upon analysis, the argument lacks both reason and logic. The appellants acknowledge that they were cognizant of a fluctuating economy. In light of such instability, any competent counsel should anticipate that the slightest fault in so delicate an economic balance would cause a tremor, if not a quake, which could result in a sudden rise in the inflation rate, or even a recessionary reversal. Considering the almost annual increases and pressures to increase allowable interest rates which may be empirically noted during the last decade, it is with some ill-grace that appellant argues that any attorney, even one of his experience and education, should not, as a matter of law, be charged with the foreseeability of the legislative interest increase permitted in 1979.

Even if foreseeability were considered "through the eye of the beholder,” this appellant had extraordinary vision. In his deposition which was read to the jury, the individual appellant admitted a far more advantageous perspective in this regard than can be attributed to most lawyers.

"Question — Now, as an attorney at law, have you been engaged in transactions where the obtaining of a construction loan is involved? Answer — Yes. Question — And are you aware of the effect on a loan commitment that the discovery of unmarketable title had? Answer — Yes. Question — And what is that effect? Answer — They more than likely would not give you a loan under those circumstances, depending on what the question may be. Question — You say that you were also in the period of the mid seventies engaged in appraisal of real estate as well? Answer — Yes. Question — In the summer of 1978 did you have an awareness of the recent history of increases or decreases in construction costs? Answer — In 1978? Question — Yes? Answer — Yes. I would assume that, as with everything else, things have been going up for a period of time. Question — So you were aware at that time that construction costs were increasing? Answer — Construction costs were increasing, yes. Question — And in August of 1978, as an attorney engaged in real estate law, were you aware of the trend in interest rates during the latter part of the 1970’s? Answer — As I recall, they were going up. Question — You state that you have a Masters Degree in Taxation. Answer — Yes. Question — In obtaining that Masters Degree, did you become familiar with the rules with regard to capital gains taxation on the sale of real estate? Answer — Yes. Question — Are you familiar with the rules regarding capital gains taxation on the sale of real estate? Answer — Yes. Question — And were you so familiar with those rules in August of 1978? Answer — Yes.”

But such exceptional perception is not really relevant to the test of foreseeability when applied to an attorney who is relied upon by a layman to protect his investment from pitfalls which are not readily apparent to those in foreign fields of endeavor.

Under the circumstances of this case, the trend was admittedly apparent and its extent was, therefore, concededly apparent. Furthermore, appellants do not contend that they were denied a requested instruction and we certainly decline to hold as a matter of law that such damages were unforeseeable.

Next appellants would have us believe that:

"The appellees’ damages are limited to the difference in value between the property with a recorded means of access and the property without a recorded means of access, or in the alternative, the purchase price of the property as paid by appellees.”

For their authority, appellants rely upon Wlodarek, supra at 468, which states that:

"In the case of a total failure of title to land purporting to be conveyed, the measure of damages suffered by the purchaser, whether the title was conveyed to the purchaser or his nominee, (a) would ordinarily include the full amount of the purchase price paid by the purchaser, and interest in the discretion of the jury.” (Emphasis added).

Appellants then continue by contending that:

"The reason for the rule that the purchaser of real property may recover only the purchase price with interest is set forth in Reamer v. Kessler, supra: 'the negligent party should not be charged for unforeseeable changes in the market value of property’ (233 Md. at 317.)”

This is not only a repetition of the foreseeability argument, but a misleading interpretation of Reamer, which addressed the precise contention that appellants make to us.

"In the instant case, the appellant would have us read the above passage as meaning that the purchase price paid (perhaps with interest) is the measure of damages. His contention thus is, in substance, that the measure of damages should be limited to out-of-pocket payments of principal (and perhaps in other cases, plus interest thereon). That is clearly not what Wlodarek says. Nor is it consistent with the measure of damages stated in Kendall v. Rogers, supra, 181 Md. [606] at 610-611, where the court quoted a passage from Cochrane v. Little, 71 Md. 323, at 33132, 18 A. 698, which concludes as follows:
'A client who has employed an attorney has a right to his diligence, his knowledge, and his skill; and whether he had not so much of these qualities as he was bound to have, or having them, neglected to employ them, the law properly makes him liable for the loss which has accrued to his employer.’ (Italics supplied.)
The above statement, though not the ground of decision, in Kendall v. Rogers, supra, is quoted from a case in which it was such a ground, and it is a clear recognition that the rule is applicable to a case involving the liability of an attorney growing out of an erroneous certification of title.” Id. at 316-317.

We are unpleasantly surprised that appellants would so obviously misconstrue Reamer or Wlodarek without apprising us of its clear explication. They undoubtedly realized the consequence of the emphasized holding that "the law properly makes him liable for the loss which has accrued to his employer.”That appellant Sawyer clearly had been made aware of "the loss which ha[d] accrued to his employer” is shown by his deposition, read to the jury by appellees’ attorney:

"Let the record reflect that I am proceeding with line eighteen on page fifty-two. 'Question — Mr. Sawyer, at the time you settled this property for Mr. Agee, were you aware of the purpose for which he was buying it? Answer —- Yes. Question — And what was that purpose? Answer — To build a house on it. Question — And were you aware of the source of his funds for the acquisition of this property? Answer — Yes. He was selling another house. Question — Do you know where that house was? Answer — No. I am not sure that I had that discussion with Mr. Agee as far as his house. I knew that this contract was apparently contingent upon his selling a house and we weren’t able to go to settlement as far as that house being sold. As far as that particular house or the circumstances surrounding that house, I don’t know.’
Let the record reflect I am moving to page fifty-four, line seven. 'Question — And were you aware at the time of settlement that he had sold his house? Answer — Yes. Question — And were you aware that the proceeds were being used to acquire this land? Answer — Yes. Question — And were you aware of how he intended to finance the construction of a house on this lot? Answer — Yes. He had planned to get a mortgage. Not at this time. He wanted to wait awhile, or something along those lines, before he constructed it. But, yes, I was aware that he was going to build a house on it. Question — And were you aware, as a real estate attorney, that at the time he sought a loan from a lending institution the bank would require certification of title by their attorneys? Answer — Yes. Question — Were you aware that he would obtain a loan committment [sic] prior to the settlement of the construction loan? Answer — Yes. Question — And were you aware of the natural or the inevitable result upon the loan committment [sic] if the title was not found to be marketable? Answer — Yes. We discussed what he was going to do at a later time as far as getting involved in the construction contract to buy his house, and the idea was that when he got a loan he was going to come back and that we would take care of certifying the title for him and doing that for him....”

Appellants next contend that it was error to deny their motions for directed verdict and judgments n.o.v. because:

"The undisputed testimony of the instant case reveals a reluctance on the part of the Appellees to minimize or mitigate the cost increases which would obtain upon the construction of the house.”

That is not a fair reflection of the facts. Although appellants attempted to offer appellees some alternatives, appellants’ efforts were directed more toward extricating themselves from their own dilemma than providing any reasonable solutions to appellees. Appellants negotiated an exchange of an easement from the adjoining landowner for the construction of a $6,000 macadam roadway, but this solution was discarded because, according to appellant Sawyer, it "would be very expensive.” Appellees declined an offer by appellants to purchase the property, since appellees were, by then, experiencing substantial inflation problems and losses with interest rates and construction costs. These losses could not be alleviated by accepting the purchase price and seeking another site, which may match neither the price nor the uniqueness of location of the original property.

But the reasonableness or unreasonableness of declining the mitigating offers was an issue for the factfinders to determine, and here was fairly submitted to the jury under explicit instructions by the trial judge. No objections or exceptions were taken to the instruction and no prayers offered relating to minimization or mitigation, so appellants must convince us that mitigation was compelled as a matter of law. Appellants’ motion for a directed verdict does not permit them to address those issues otherwise, since they were unpreserved by specific objection. Md. Rule 757 h. They concede here, and have at every level, that appellees are entitled to some damages. That was sufficient in itself to get to the jury. Specific limitations should have been prayed in the instructions if so desired.

The same foreseeability complaint and the same result are again addressed by appellants under yet a different caption when they contend that:

"Damages for increased costs of financing and construction should be fixed within a reasonable time after the breach,”

again, presumably, as a matter of law.

They explain that:

"The present era is one of extraordinary economic instability. Surely, the tendency of the economy to rampant inflation and the fluctuation of interest rates are worthy of judicial notice. In times like these, it is neither just nor commercially reasonable to place a contract defendant in a position where he cannot estimate what his damages will be simply because he had no idea of the date on which they will be measured.”

Despite appellants’ extensive discussion of their contention, it appears once more that the issue of the time at which damages became fixed was not preserved by objection to instructions or offer of other instructions limiting such damages. Md. Rule 757 h. To the extent this issue may have been argued on motion for judgment n.o.v. or new trial, we cannot say that the denial of those motions was an abuse of discretion, if for no other reason than that neither the issue of mitigation or of a fixed time for damages was the subject of instructional objection or recommendation. Appellant cannot proceed on one theory of defense at trial and expect to be permitted a second try at some alternative subsequently conceived.

If it would be of any comfort to appellants, we will reflect that under the circumstances of this case, as reviewed upon appeal, we agree with the trial judge that, overall, the damage issues and the contrasting damage theories were fairly submitted to the jury. Appellees did not profit from the loss occasioned by the appellants’ breach. They were barely made whole. The unfortunate oversight on which this case was based was a costly one, but it was made by one who was hired precisely for the purpose of averting the consequent losses. It is he, and his firm, who must bear them.

Judgment afñrmed.

Costs to be paid by appellants.

      . The only instructions requested or objected to by appellants were as follows:
      "(Mr. Fuchs) On behalf of Mr. Sawyer, we would object to the instructions which include as damages income tax that was paid and interest. We would also take an exception to the damages instructions on the basis that it does not provide that the damages in the case where an attorney searches title and the certificate of title is defective. The damages are the value of the property with the defect in the title subtracted from the value of the property as it should have been without the defect. We would also take an exception —
      (Judge Bowen) Before you get to the next one, let’s deal with that one. We did that when we were in Chambers, discussing both the instructions of the question of what is the correct method of proving damages in a case such as this. There was no evidence submitted to support the instructions which [were] requested either by the plaintiff of by either of the defendants. We conceded at that time that that is one way to assess damages and one way to measure damages in a case such as this. However, we do not believe that that is the only way. The damages which have been offered in evidence here far éxceed the purchase price of this lot. In order to allow recovery for these damages we think that the evidence indicated to show that this was a matter of a piece of property purchased for a special purpose and the evidence in this case shows abundently [sic] that what it was, that everybody knew about this. I instructed them in this fashion over the objection of Mr. Fuchs who assisted in argument and then takes exception now to the instructions I gave and refusal to give the one I was just asked to give. I will give him an exception to the instructions which allowed the interest as an element of damage in the first element as I discussed before the Jury as well as to-the income taxes element of damage. And I will give him also an exception to my instruction on this theory rather than on the before and after value theory.
      Does that cover your exceptions fairly?
      (Mr. Fuchs) Yes, sir.”

      . That appellants twice objected, without explanation, to questions relating to this subject matter does not avert this failure to preserve the issue explicitly.


source: Caselaw Access Project

author: Gilbert, C. J,

license: Public Domain

text:
    WILLIAM BOZMAN v. THE OFFICE OF FINANCE OF BALTIMORE COUNTY, MARYLAND
    [No. 1385,
    September Term, 1981.]

      Decided June 3, 1982.

    The cause was argued before Gilbert, C. J., and Moore, J., and William W. Wenner, Associate Judge of the Sixth Judicial Circuit, specially assigned.

      William D. Quarles, with whom were Finley, Kumble, Wagner, Heine, Underberg <§; Casey and Alan I. Baron, P. C. on the brief, for appellant.

      Michael J. Moran, Assistant County Solicitor for Baltimore County, with whom was Leonard S. Jacobson, County Solicitor for Baltimore County, on the brief, for appellee.
   Gilbert, C. J,

delivered the opinion of the Court.

William Bozman would have us reverse an order of the Circuit Court for Baltimore County (Brizendine, J.) that effected the forfeiture of $3,950 foupd in the Bozman home during the execution of a search and seizure warrant.

THE FACTS

Whatever domestic tranquility existed in the Cockeysville home of William Bozman on Saturday morning, October 27, 1979, must have been shattered when three Baltimore County police officers and an unstated number of "members of the Department of Justice and Drug Enforcement Administration officers,” all armed with a search and seizure warrant entered those premises.

One of the County police officers was Detective Robert Walbrecher, then assigned to the Narcotics Division. Walbrecher acted as "the evidence man.” From the record we infer that such a person is an inventory takér or tally clerk. Whenever anything is seized by the police, the "evidence man” lists the identity of the item and where it was found.

Among the seized items listed by Walbrecher were small amounts of several proscribed controlled dangerous substances as well as paraphernalia patently used in connection with such substances. All but one of the items were seized from the "master bedroom” and an adjoining bathroom. The officers seized $1,780 from the appellant’s dresser and a total of $2,170 from a safe in the bedroom and from Bozman’s wallet which was apparently found on the dresser. Walbrecher did not know in what part of the bedroom the controlled dangerous substances were found but was able to state that no controlled dangerous substances were found in the safe, the wallet, or the dresser.

The Office of Finance of Baltimore County filed a petition in the circuit court for the forfeiture of the money "seized or captured in close proximity to [the! contraband controlled dangerous substances or controlled paraphernalia.” In due time Bozman answered the petition. He asserted that the funds were his "property”; that he had never been "charged, tried or convicted pursuant to the arrest in connection with which said funds were seized”; that seizure occurred during an "illegal” search, and that a similar petition to that of the instant case was "filed” in the "District Court of Maryland for Baltimore County” and was "voluntarily dismissed.”

When the case was tried before Judge Brizendine, Bozman did not testify and offered no evidence.

Judge Brizendine obviously concluded that the monies were found in "close proximity” to the contraband, and he directed the forfeiture.

THE ISSUE

Bozman posits two arguments to us, namely:

"I. The trial judge erred in granting the appellee’s forfeiture petition in the absence of proof that the forfeited money was found in close proximity to contraband controlled dangerous substances.
II. The trial judged [sic] erred in granting the appellee’s forfeiture petition in the absence of proof of a final disposition of related criminal proceedings.”

THE LAW

Md. Ann. Code art. 27, § 297, provides in pertinent part:

"(a) Property subject to forfeiture. — The following shall be subject to forfeiture and no property right shall exist in them:
(6) All money or currency which shall be found in close proximity to contraband controlled dangerous substances or controlled paraphernalia or which otherwise has been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia.
This money or currency shall be deemed to be contraband of law and all rights, title and interest in and to the money or currency shall immediately vest in and to Baltimore City or the county in which it was seized, the municipal corporation, if seized by municipal authorities, or, if it was seized by State authorities, the State; and no such money or currency shall be returned to any person claiming it, or to any other person, except in the manner hereinafter provided....”

The breadth of the term "close proximity” deliberately has not been defined by either Maryland appellate court. Were we to undertake a delineating of "close proximity,” it is almost a foregone conclusion that in any future searches, monies will always be found outside the area embraced by our definition. We shall not, therefore, attempt to define "close proximity.” Instead, we shall treat the term with the same deference afforded "fraud” and "a quantity sufficient to indicate an intent to distribute.” We liken "close proximity” to Justice Stewart’s comment on pornography. We do not define it, but we know it when we see it. In short, we shall determine "close proximity” on a case-by-case basis.

"Close proximity” as used in Md. Ann. Code art. 27, § 297 (a) (6) must be understood with reference to the legislative purpose. Judge Digges, in Prince George’s County v. Blue Bird Cab Co., Inc., 263 Md. 655, 662, 284 A.2d 203, 207 (1971), observed that the Legislature’s purpose in adopting the forfeiture provisions was an "attempt not only to curtail drug traffic in this [SJtate, but to discourage such a blight from continuing in the future.” In that case, the vehicle was leased from the cab company on a yearly basis at a daily rate of $16. The lessee was arrested while "sitting in ... [the] cab outside of Central High School in Prince George’s County.” The police had observed the lessee conduct heroin transactions from the cab. The sales were made to high school students. The County sought to have the vehicle forfeited to the County. The trial court dismissed the petition, but the Court of Appeals held that the proscribed sale of heroin from the cab met the stricture of the forfeiture statute. Thus, Blue Bird figuratively speaking watched its cab fly away.

The forfeiture directed by section 297 (a) (6) is directed at money that either was or is intended to be a part of an illicit controlled dangerous substance, or paraphernalia dealing. While unquestionably drugs or drug paraphernalia are forfeited because their mere possession violates the criminal law of this State, the same is not true generally of monies seized on or about premises that are searched pursuant to a valid warrant. To be subject to forfeiture the monies must be derived from criminal activity. Recognizing the great degree of difficulty that would confront the prosecution if it were required to prove that monies found in a search of premises were directly attributable to proscribed activity, the General Assembly wisely eliminated that burden by declaring that monies in "close proximity to contraband controlled dangerous substances or controlled paraphernalia” were forfeited unless, after a hearing on a petition for forfeiture, the court shall find that the monies seized were not in close proximity to contraband.

"Forfeiture is grounded in the legal fiction that an inanimate object can be guilty of a crime.” Prince George’s County v. Blue Bird Cab, 263 Md. at 658, 284 A.2d at 204. See also United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). Whatever the practical effect may be, a forfeiture is not viewed in the eyes of the law to be a future or additional punishment of the individual whose property is so confiscated. Instead, the law looks upon the property as a living being and thus subject to punishment by way of forfeiture. It is, more simply stated, as if the property were a living co-defendant. See Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 284, 75 L.Ed. 558, 561 (1931).

At English common law, the prerequisite to forfeiture was a conviction. The reason the conviction was required was because forfeiture was seen as a punishment of the offender for his crime. Forfeiture was not directed at the property itself. The English did not share our concept of the property’s being a separate and distinct living thing, a co-defendant, or co-offender.

Maryland, as do most of the states, treats forfeiture as an action in rem, prosecuted against the property because of its connection with a crime. Prince George’s County v. Blue Bird Cab, supra; see also The Palmyra, 25 U.S. (12 Wheat.) 1, 14-15, 6 L.Ed. 531, 535-36 (1827), where Mr. Justice Story, for the Court, said:

"In the contemplation of the common law, the offender’s right was not devested until the conviction. But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing; and this, whether the offense be malum prohibitum, or malum in se. ... Many cases exist, where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist, where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. ... In the judgment of this Court, no personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature.”

See also Smith v. One Super Wild Cat Console Machine, 10 Or. App. 587, 500 P.2d 498 (1972); Annot. 3 A.L.R.2d 738 (1949).

The statute, Md. Ann. Code art. 27, § 297 (b), provides in pertinent part:

"Any property subject to forfeiture under this subheading may be seized upon process issued by any court having jurisdiction over the property except that seizure without such process may be made when —
(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under this subheading;
(3) There is probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) There is probable cause to believe that the property has been used or intended to be used in violation of this subheading.
In the event of seizure pursuant to paragraphs (3) and (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly, except all proceedings relating to money or currency, which shall be instituted within 90 days from the date of final disposition of criminal proceedings which arise out of Article 27, § 276 through § 302 inclusive.
(i) All applications for the forfeiture of money or currency contraband shall be made by the director of finance of Baltimore City, the county treasurer, municipal treasurer, or the Attorney General. The applications shall be by petition, affidavit and show cause order and shall be filed in the District Court or circuit court of the county or in the District Court of Baltimore City or a law court of the Supreme Bench of Baltimore City.”

The statutory directive is that forfeiture proceedings shall be commenced within 90 days after "final disposition of criminal proceedings.”

Md. Ann. Code art. 27, § 264, allows forfeiture of monies seized as a result of a gambling arrest. The statute mandates that forfeiture shall be commenced within 90 days of "conviction.” The appellant adroitly likens section 264 to section 297, and, while not specifically suggesting that we read the statutes to be in pari materia, very gently prods us in that direction.

We think that the Legislature meant to draw, and did draw a sharp distinction between forfeitures in gambling cases and forfeitures in controlled dangerous substances matters. The requirement of a "conviction” in a gambling case is a recognization by the General Assembly that, while gambling is unlawful, it is not such a heinous offense as to dictate forfeiture absent conviction.

Violations of the controlled dangerous substances act are treated much more severely. Patently, the members of the Legislature are fully cognizant that dealing in proscribed drugs and paraphernalia ofttimes results in crimes of violence. Addicts kill, rob, burglarize, and steal so as to obtain funds to sate their habits.

Ordinarily, in a forfeiture case "final disposition” would occur by the entry of a final, unappealable judgment, a nolle pros, a stet, or a verdict of not guilty.

The record before us fails to disclose what disposition was made except that, based on the testimony of the only witness produced at the trial and on the answer to the petition, we may safely infer that charges were never filed in either a State or a federal court.

The record is absolutely silent as to the reasons for the non-prosecution of the appellant, although any number of things might be inferred. We shall not attempt to enumerate them.

There is no indication in the minimal record before us as to when, if ever, the "final disposition” occurred. We observe, however, that there is no statute of limitations on felony criminal offenses nor on "penitentiary misdemeanors.” Thus, the mere passage of time would not preclude the filing of charges against Bozman. See Smallwood v. State, 51 Md. App. 463, 443 A.2d 1003 (1982).

The statute does not, in our view, require that the governmental agency affirmatively prove as part of its case that it commenced proceedings within 90 days of "final disposition.” On the contrary, the 90-day period is likened unto a statute of limitations and, as with limitations, must be specially pleaded and demonstrated. It is, in essence, an affirmative defense. Since the record in the instant case fails to show when "final disposition” occurred, if in fact it has, we are unable to say that the forfeiture was not begun within the statutory time frame.

At the expense of repetition, we again state that there need be no conviction, final or otherwise, in order for there to be a forfeiture. The Palmyra, supra.

THE HOLDING IN THE INSTANT CAUSE

Judge Brizendine had before him evidence that demonstrated that monies were found in a position that by any fair standard of judgment could be said to be in "close proximity” to contraband. The evidence in the instant case went one more step. The County showed that "tally sheets with names, weights and prices on them” were found on the premises.

The County was required to prove its case by a preponderance of the evidence. Prince George’s County v. Blue Bird Cab Co., Inc., supra. It met that test in the trial judge’s view. We are unable to state that Judge Brizendine was clearly erroneous. Md. Rule 1086. Bozman, of course, had the right to controvert, other than through cross-examination, the evidence adduced by the County. He elected to stand or fall on the basis of the County’s case. He fell before the trial court, and as far as we are concerned, he shall remain in that fallen position.

Order affirmed.

Costs to be paid by appellant.

      . For reasons that we fail to comprehend, the appellant did not set forth the petition in the record extract. We are, pursuant to Md. Rule 1028 b. 1. (b), permitted to dismiss the appeal on that ground. Md. Rule 1035 b (5).

      . Indeed, Bozman did not answer the written interrogatories propounded to him by the County. Instead, he sought a protective order. The case was tried before the motion for the order was ruled on by the court.

      . "No court has ever attempted to define fraud.” Allcord v. Skinner, 36 Ch. 145, 183 (1887).

      . See generally, Williams v. State, 14 Md. App. 619, 287 A.2d 803 (1972). We have eschewed any attempt to have us determine the minimum quantity necessary to constitute an amount sufficient to indicate an intent to distribute.

      . Jacobellis v. Ohio, 378 U.S. 184, 12 L.Ed.2d 793, 84 S.Ct. 1676 (1964).

      . Md. Ann. Code art. 27, § 297 (b) (4) (ii).

      . At 4 Blackstone * 386 it is said by Sir William that he "here omit[s] the particular forfeitures created by the statutes of praemunire [to forewarn] and others, because I look upon them rather as a part of the judgment and penalty inflicted by the respective statutes....”

      8. The Baltimore County Charter § 514 states that:
      "The office of finance shall be administered by the director of finance, who shall be appointed on the basis of his experience in financial administration. He shall be responsible directly «to the county administrative officer.”
      Section 1109 of the Charter declares:
      "Unless otherwise hereafter provided by law, the director of finance shall give the same bonds for the faithful performance of his duties as are now required of the county comptroller, and, after the abolition of the office of county treasurer, such additional bonds as may be required of such officer. All references in the laws to the county treasurer shall, after the abolition of said office, be construed to refer to the director of finance, whenever such construction would be reasonable.”
      Therefore, we read Md. Ann. Code art. 27, § 297 (b) (i) as stating "director of finance” instead of "county treasurer.”
      We do not, however, read the section to confer the authority to file petitions for forfeiture upon the "Office of Finance.” Since the issue was not raised, we do not further discuss it. Md. Rule 1085.

      . Report, Task Force on Addictions and The Criminal Justice System (1982), states at p. 4:
      "A recent study of 237 male heroin addicts from Baltimore revealed that, over an eleven-year period, these men committed more than 500,000 crimes (excluding drug use and possession):
      'One of the major findings of this study was that heroin addicts commit a staggering amount of crime and that this continues fairly much on a daily basis for years and decades....
      The research findings ... show that the average addict has committed one or more crimes during some 2,000 days. Taken together, these 237 male opiate addicts have been responsible for committing more than 500,000 crimes during an eleven year risk period. The exact figure is 473,738 crime-days, but this does not include multiple offenses committed on a given day, so the figure of 500,000 crimes is an underestimate. In this regard, it should be noted that theft was the principal type of crime committed and that drug use or possession were not, themselves, classified as crimes.
      This high frequency of criminality among opiate addicts is similar to that which has been reported by other investigators... (Footnote omitted.)


author: Wilner, J.,

text:
    NOLAND COMPANY v. ARMCO, INC. et al.
    [No. 1436,
    September Term, 1981.]

      Decided June 3, 1982.

    The cause was argued before Lowe and Wilner, JJ., and Edward D. Higinbothom, Associate Judge of the Third Judicial Circuit, specially assigned.

      Steven P. Henne, with whom were Heise, Jorgensen, Stefanelli & Boswell, P.A. on the brief, for appellant.

      Laurie R. Bortz, with whom were Howard G. Goldberg and Smith, Somerville & Case on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

During the period from June 8,1979, to January 16,1980, appellant furnished various plumbing supplies to a company called S. G. Incorporated (S.G.I.) S.G.I. was a subcontractor engaged by Armco, Inc. (Armco), a general contractor, to do work on a construction project for the Washington Suburban Sanitary Commission (WSSC).

WSSC is a State agency (see Katz v. Washington Suburban Sanitary Commission, 284 Md. 503 (1979); Prince George’s County v. Blumberg, 288 Md. 275 (1980), cert. den. 449 U.S. 1082 (1981)) and thus the project was subject to the provisions and requirements of the State’s "Little Miller Act” — Md. Code art. 21, § 3-501 (formerly Real Prop, art., § 9-113). In accordance with that statute, Armco furnished a payment and performance bond written by Seaboard Surety Company (Seaboard).

On December 17, 1980, appellant sued S.G.I., Armco, and Seaboard in the Circuit Court for Prince George’s County, claiming, in essence, that it had not been paid for the supplies furnished to S.G.I., and that it was owed $43,231. The Declaration contained eight counts. The first six were the various "common counts.” Count VII, claiming only against Armco and Seaboard, alleged, in relevant part:

"That said materials, supplies and equipment were supplied pursuant to guarantee of Armco, Inc. to pay for said materials, [appellant] being a third-party beneficiary of an agreement between [S.G.I.] and [Armco], a copy of which is attached hereto and incorporated herein and identified as Exhibit B, providing that [Armco] would pay for said materials.”

Count VIII claimed against Armco alone, also on the basis that appellant was a third-party beneficiary of the "agreement” between S.G.I. and Armco, attached as Exhibit B.

The "agreement” to which Counts VII and VIII referred was a letter dated August 6,1979 from Armco’s project manager to S.G.I., stating:

"Gentlemen:
We agree to pay for materials to be incorporated into either of these projects. Shipping papers and invoices should show consignment to the specific project. Invoices should be sent to you for your approval. You can then give them to us for payment. Invoices must be descriptive enough for us to understand what we are paying for. Also there MUST be a LEGIBLE signature.
All discounts will be credited to our accounts.” (Emphasis in the original.)

Armco and Seaboard demurred to Counts VII and VIII on the basis that (1) neither count alleged sufficient facts to show a contractual relationship between appellant and those defendants or that appellant was a third-party beneficiary of any obligation from those defendants to S.G.I.; and (2) Count VII amounted to a claim by a subcontractor under the "Little Miller Act,” but failed to allege the statutorily required notice to Armco and Seaboard. Following appellant’s concession that no such notice could be alleged because no such notice was in fact given, the court sustained the demurrer to Counts VII and VIII without leave to amend. Appellant previously had dismissed the first six counts, and thus the court’s order respecting Counts VII and VIII terminated the entire action. This appeal is from that order, appellant aruging that:

"Because the allegations of the declaration were sufficient to allege appellant’s third-party beneficiary status and a direct contractual relationship with the general contractor, thereby eliminating the need for an allegation of notice of claim to said general contractor under the 'Little Miller Act’, the lower court erred in sustaining the demurrer.”

We find no error, and thus shall affirm.

As suggested by appellant’s statement of the issue, and as made clear by the procedural context of the case, the question before us is the sufficiency of appellant’s averments in Counts VII and VIII. A demurrer to a declaration admits the truth of all material facts which have been well pleaded, together with the inferences reasonably deducible therefrom. Schwartz v. Merchants Mortgage Company, 272 Md. 305 (1974). It does not admit, however, conclusions of law or "a mixed conclusion of law and facts.” Culotta v. Raimondi, 251 Md. 384, (1968); Martin G. Imbach, Inc. v. Deegan, 208 Md. 115, 122 (1955).

With respect to Count VII — the action under the "Little Miller Act” — Md. Code art. 21, § 3-501 (c) requires that, if the claimant has a "direct contractual relationship with a subcontractor of the contractor ... but no contractual relationship express or implied with the contractor furnishing [the bond],” as a condition to recovery on the bond, he must give notice of his claim to the contractor within ninety days from the date he last supplied the labor or material for which the claim is made. As noted, appellant has conceded that no such notice was given. Its theory is that (1) Armco’s August, 1979, letter constituted a direct guarantee of payment, (2) appellant was a third-party beneficiary of that commitment, (3) by virtue of that status, it had a "contractual relationship express or implied with the contractor,” and (4) the notice requirement therefore did not apply to it.

Appellant’s right of recovery under this theory, which underlies both Count VII and Count VIII, hinges entirely upon the August, 1979, letter, for that letter alone forms the alleged basis of its "contractual relationship” with Armco. That letter does not, however, constitute or evidence any such relationship.

It is initially obvious, of course, that appellant is not a party to the letter, is not even mentioned in the letter, and did not contemporaneously receive a copy of it. The letter gives no indication that Armco was even aware of appellant’s existence. The letter refers to two projects in which S.G.I. was involved, and, read in context, it merely establishes a procedure for submitting invoices for materials used on those projects in order that Armco might substantiate S.G.I.’s periodic claims and keep its own records straight.

Neither the letter nor the arrangement which it evidenced suffices to create an express or implied contractual relationship between appellant and Armco so as to permit a direct action against Armco on a "third party beneficiary” basis or to excuse the statutory requirement of notice as a prerequisite to a claim under the "Little Miller Act.” See United States ex rel. Davison v. York Electric Construction Co., Inc., 184 F.Supp. 520 (D.N.D. 1960), a case involving the analogous Federal Miller Act that, despite appellant’s protestations, we find very close on point; also United States ex rel. Fordham v. P. W. Parker, Inc., 504 F.Supp. 1066 (D.Md. 1980); United States ex rel. Henry Walke Co. v. Van de Riet, 316 F.2d 912 (4th Cir. 1963); United States ex rel. State Electric Supply Co., Inc. v. Hesselden Construction Co., 404 F.2d 774 (10th Cir. 1968); cf. Bowden v. United States ex rel. Malloy, 239 F.2d 572 (9th Cir. 1956), cert. den. 353 U.S. 957 (1957); and compare United States ex rel. Hargis v. Maryland Casualty Co., 64 F.Supp. 522 (S.D.Cal. 1946).

These cases establish that even an agreement on the part of the general contractor to issue checks to the subcontractor and its suppliers jointly does not suffice to create a direct (or third-party beneficiary) contractual relationship between the supplier and the general contractor. If a "joint check” arrangement does not create the required contractual relationship, it is clear that Armco’s letter to S.G.I. cannot have that effect.

Judgment affirmed; appellant to pay the costs.

      . We note additionally that Armco’s commitment expressed in the first sentence, "to pay for materials to he incorporated into, either of these projects,” is a conditional one. Payment is not required, according to the letter, unless the invoices were legible, sufficiently descriptive, approved for payment by S.G.I., and showed consignment of the materials to the specific job. Nowhere in Counts VII or VIII has appellant alleged that those conditions were satisfied.


text:
    IN RE A SPECIAL INVESTIGATION NO. 219 IN RE A SPECIAL INVESTIGATION NO. 220
    [No. 1586,
    [No. 1618,
    September Term, 1981.]
    September Term, 1981.]

      Decided June 3, 1982.

      The cause was argued before Lowe and Wilner, JJ., and Edward D. Higinbothom, Associate Judge of the Third Judicial Circuit, specially assigned.
    No. 1586, Stefan D. Cassella, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.
    No. 1618, James R. Wooten, with whom were Andrew Radding and Burke, Gerber, Wilen, Francomano & Radding on the brief, for appellant.
    No. 1586, Andrew Radding, with whom were James Wooten and Burke, Gerber, Wilen, Francomano & Radding on the brief, for appellee.
    No. 1618, Stefan D. Cassella, Assistant Attorney General, with whom were Deborah K. Handel, Assistant Attorney General, and Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

These two appeals, along with a third that was argued in March, 1982 (In Re A Special Investigation No. 188, Sept. Term, 1981, No. 1486), arise out of an investigation currently being conducted by the Medicaid Fraud Unit of the Attorney General’s Office in conjunction with the Grand Jury of Baltimore City. The principal objects of the investigation appear to be an entity known as Good Luck Nursing Home, Inc., which operates a nursing home in Lanham, Maryland, known as Magnolia Gardens Nursing Home (Magnolia), and certain individuals associated with those entities.

During the course of the investigation, the Attorney General learned that one Thomas Blackwell had been the accountant for those entities and that he had or might have certain information or records relevant to the inquiry. Because Blackwell’s residence and office were located in Virginia, which is presumably where his records were kept, the Attorney General invoked the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Md. Code, Courts art., § 9-301, et seq.) in order to secure his attendance.

Acting at the Attorney General’s request and pursuant to Courts art. § 9-303 (a), the Criminal Court of Baltimore (Bell, J.) on November 6, 1981, issued an "Amended Certification” stating, among other things, that Blackwell was a material and necessary witness in the grand jury investigation and that he had in his possession documents material and necessary to that investigation. The Certification stated that "[s]aid documents include all workpapers, invoices, memoranda, correspondence, notes or other records pertaining to work performed for the years 1976 to 1980” for Magnolia and the associated persons and entities. (Emphasis supplied.) It provided that Blackwell would be "required to appear and to produce said document [sic] for no more than one day on November 30, 1981.” (Emphasis supplied.)

The Criminal Court’s Amended Certification was presented to the Circuit Court of Fairfax County, Virginia, which, on November 24, 1981, and in accordance with the Virginia counterpart of the Uniform Act (Va. Code, § 19.2-274), conducted a hearing and ordered Blackwell to:

"appear at 10:00 a.m. on the 30th day of November, 1981, in the State of Maryland, Criminal Court. . . and testify and produce documents including all workpapers, invoices, memoranda, correspondence, notes or other records pertaining to work performed for the years 1976 to 1980”

for Magnolia and the other associated persons and entities. (Emphasis supplied.)

Blackwell resisted the order by various legal maneuverings, but eventually, when they proved unsuccessful, he appeared before the grand jury pursuant to the order on January 5, 1982. He brought with him and turned over to the grand jury the various records covered by the Virginia court order for the years 1976 through 1979. He did not bring or deliver any records for the year 1980, because, he said, upon the advice of counsel, he did not interpret the order to require such records.

The Attorney General did not pursue the matter of the 1980 records that day. Blackwell apparently testified and then returned to Virginia. On January 21, 1982, the Attorney General filed a motion in the Criminal Court of Baltimore for an order of that court compelling Blackwell to turn over the 1980 records. The motion was grounded upon the premise that such records were included under the Virginia order — that the phrase "1976 to 1980” should be interpreted as including 1980. Blackwell responded with a motion to quash, asserting that a Maryland court had no jurisdiction to compel a Virginia resident to produce records located in Virginia.

After a hearing on the matter, the Criminal Court of Baltimore (Allen, J.), on January 25,1982, declined to rule on Blackwell’s jurisdictional argument, but denied the Attorney General’s motion to compel upon a finding that the 1980 records were not included within the ambit of the Virginia order. It construed the word "to,” as used in that order, as exclusive rather than inclusive of the ending term.

The Attorney General made a dual and immediate response to the court’s ruling. On the same day — January 25, 1982 — he (1) noted an appeal from the court’s denial of his motion to compel (No. 1586), and (2) petitioned the Criminal Court for a certification to require one Bruce Johnson, an employee of Blackwell also residing in Virginia, to appear before the grand jury and to bring with him the same 1980 records sought from Blackwell.

In support of this new petition with respect to Johnson, the Attorney General offered the court an affidavit of the Assistant Attorney General conducting the probe. At the Attorney General’s request, however, the affidavit was not shown to counsel for Johnson, but was read by the court and then sealed. The court granted the Attorney General’s petition and promptly (on January 25, 1982) issued a certification under the Uniform Act that Johnson was a necessary witness in the investigation and that he would be required to appear before the grand jury on April 12, 1982 "for no more than one day” and "to produce, deposit and turn over to the Grand Jury all books, records, accountant’s workpapers, notes, memoranda and other documents related to work he has done for or on behalf of [Magnolia and the other associated persons and entities] for the years 1976 through 1980, inclusive.”

Johnson took an immediate appeal (No. 1618) from the January 25 certification, which has never been presented to the Virginia court.

Each side has moved to dismiss the appeal of the other, essentially on jurisdictional grounds. In No. 1586, Blackwell repeats his argument that the Criminal Court lost whatever jurisdiction it had over him when he completed his day’s testimony and returned to Virginia, and that it has no further authority to compel him to do anything absent some further order of the Virginia court. In No. 1618, the Attorney General argues that the Criminal Court’s certification as to Johnson is not an appealable order. We think that both of these positions are correct, and thus shall dismiss the appeal in No. 1618. As to No. 1568, although the Criminal Court did not have the requisite in personam jurisdiction to do what the Attorney General wanted, it did have appropriate subject matter jurisdiction to consider and deny the motion to compel; and we, of course, have jurisdiction to review that ruling which effectively precluded the Attorney General from further litigating in Maryland his rights against Blackwell under the existing Virginia court order. We therefore shall consider that appeal but shall affirm the lower court’s order.

The Uniform Act provides what is essentially a two-stage process for obtaining the compulsory attendance of an out-of-State witness in criminal prosecutions and grand jury investigations.

The first stage originates in the requesting State (Maryland). A person desiring the attendance of an out-of-State witness may approach the appropriate court in his State and, if he is able to convince that court that such be the case, obtain from it a formal certificate under seal that the individual whose presence is sought "is a material witness in a prosecution pending in [the court] or in a grand jury investigation which has commenced or is about to commence. . . .” The certificate, if it is issued, must also specify "the number of days the witness will be required.” Md. Code, Courts art. § 9-303 (a).

The second stage is to present the certificate "to a judge of a court of record in the county in which the witness is found.” Id. That judge, upon such presentation, schedules a hearing on the matter. At that hearing, which the witness is directed to attend, the judge considers and determines whether the certificate presented to him has merit — whether the witness is material and necessary to a prosecution or grand jury investigation, whether it would cause any undue hardship on the witness to attend as requested, and whether the witness will be afforded the immunity from arrest and civil process required by the Act. If the judge finds that these statutory prerequisites are satisfied, he "shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify ... at a time and place specified in the summons.” Md. Code, Courts art., § 9-302 (b); Va. Code, § 19.2-274.

If, after being tendered the appropriate traveling expenses and witness fee, the witness "fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this [i.e., the sending]State.” Md. Code, Courts art., § 9-302 (d); Va. Code, § 19.2-276.

It is clear, under this arrangement, that except to provide a basis for invoking the jurisdiction of the Virginia court and to serve as "prima facie evidence of all the facts stated therein” (Md. Code, Courts art., § 9-302 (b); Va. Code, § 19.2-274), the certificate issued by the Criminal Court of Baltimore had no efficacy whatever. It was not a judgment of that court or any kind of order that was directly, immediately, or automatically enforceable. It conferred no right greater than a standing to approach the Virginia court, and certainly did not in any way foreclose the ability of Johnson to contest its averments. He had (and presumably still has) the right to litigate the issue in the Virginia courts; and unless and until the Attorney General can persuade the Virginia court to issue a summons, Johnson is under no obligation to do anything. See Appel v. State of New York, 243 Md. 218 (1966); Epstein v. People of the State of New York, 157 So.2d 705 (Fla.App. 1963); Application of Stamler, 111 N.Y.S.2d 313 (A.D. 1952); In re Cooper, 22 A.2d 532 (N.J. 1941).

Subject to the enumerated exceptions in Md. Code, Courts art., § 12-303, none of which apply here, a party may appeal to this Court only from a "final judgment” entered by a circuit (or Supreme Bench) court. As a general rule, in order to be appealable a "judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.” Peat, Marwick, Mitchell & Company v. The Los Angeles Rams Football Company, 284 Md. 86, 91 (1978), quoting from United States Fire Insurance Company v. Schwartz, 280 Md. 518, 521 (1977). As we have observed, the certificate appealed from in No. 1618 meets neither of those tests. It is not an appealable judgment.

With respect to No. 1586, it is axiomatic that "[i]n the absence of a statute, a state court cannot require the attendance of a witness who is a nonresident of and is absent from the state.” Annot., Uniform Act to Secure Attendance of Witnesses From Without a State in Criminal Proceedings, 44 A.L.R.2d 732, 733 (1955). Nor, absent a statute, can the State compel a nonresident witness to produce records in the State. As succinctly stated in Bartell v. Bartell, 278 Md. 12, 19 (1976), "Obviously, the subpoena powers of the State of Maryland stop at the state line.”

Blackwell was in Maryland on January 5,1982, pursuant to a summons issued by the Virginia court, not by virtue of any order issued in Maryland. It may be that, while he was here, the Criminal Court of Baltimore could have resolved the dispute over the 1980 records; and, if it found that Blackwell had "fail[ed] without good cause to attend and testify as directed in the summons,” it could have exercised its authority under Md. Code, Courts art. § 9-303 (b) and punished him "in the manner provided for punishment of any witness who disobeys a summons issued from a court of record in this State.” But that issue is not now before us. The fact is that Blackwell is no longer here. The Maryland (Criminal) Court’s authority to act under § 9-303 (b) expired when Blackwell recrossed the Potomac River, and thus removed himself from the reach of Maryland’s sovereignty. The Attorney General’s remedy, if he has one, is to proceed in the Virginia court. Even if the Attorney General is correct in his interpretation of the Virginia summons, the authority to enforce that summons now rests exclusively with the court that issued it, as Va. Code, § 19.2-276 and its Maryland counterpart (§ 9-302 (d)) make clear.

The Criminal Court of Baltimore was correct in denying the Attorney General’s motion to compel. It had no jurisdiction to do otherwise.

In No. 1586, order denying motion to compel affirmed, appellant to pay the costs; in No. 1618, appeal dismissed, appellant to pay the costs.

      . On or just before the day he was due to appear (November 30), Blackwell filed a motion in the Criminal Court of Baltimore to quash the order to appear. When that was denied, he appealed; and when he was unsuccessful before us, he sought review in the Court of Appeals. See In Re: A Special Investigation, S.T. 1981, Misc. No. 29, cert. den. Ct. of App. Pet., Docket No. 554.

      . The Attorney General’s reliance on A. V. Laurins & Company, Inc. v. Prince George’s County, 46 Md.App. 548 (1980), and Tvardek v. Tvardek, 257 Md. 88 (1970), as establishing a contrary rule is grossly misplaced. It is true, as those cases and others hold, that when a court acquires general in personam jurisdiction over a person, that person may not defeat the court’s jurisdiction by leaving the State; in such instances, subpoenas and other orders may validly issue and be served upon counsel of record. Here, however, the Criminal Court had never obtained general in personam jurisdiction over Blackwell. He was here by order of the Virginia Court for one special purpose and for one day only. There was no continuing jurisdiction. At the end of the day, like Brigadoon, it disappeared.


author: Gilbert, C. J.,

text:
    FREDERICK A. GILLIS v. COMMISSIONER, DEPARTMENT OF CORRECTIONS
    [Misc. No. 4,
    September Term, 1982.1

      Decided June 9, 1982.

    Before Gilbert, C. J., and Morton and Bishop, JJ.
    Submitted by J. Bernard McClellan for applicant.

      Submitted by Stephen H. Sachs, Attorney General, with whom were Deborah Handel, Assistant Attorney General, and William A. Swisher, State’s Attorney for Baltimore City, for respondent.
   Gilbert, C. J.,

delivered the opinion of the Court.

Although there are some people who believe that persons convicted of a crime should be automatically admitted to bail pending an appellate decision, Maryland has adopted a different standard. In this State, there is no right to bail after a conviction, Bigley v. Warden, 16 Md. App. 1, 294 A.2d 141 (1972), nor is there any precise formula, equation, or litmus paper test for the purpose of determining whether bail should be allowed in those circumstances. Each case must stand or fall on its own facts. Washburn v. Sheriff, Cecil County, 16 Md. App. 611, 298 A.2d 462 (2 973); Bigley v. Warden, supra.

The instant case is an application by Frederick A. Gillis, Jr., for leave to appeal from a denial of bail by the Baltimore City Court. From the record before us we learn that Gillis was convicted of a violation of the Controlled Dangerous Substances laws and sentenced to fifteen years imprisonment. His attorney asked that the trial judge set a sum of bail pending the outcome of an appeal. The judge set the penalty of the bail bond at $150,000.

We infer from the dialogue between defense counsel and the judge that Gillis was originally released at the time of arrest on a bail of $10,000. Thereafter, the bail was increased by the trial judge to $75,000. Gillis did not post the bail and consequently was jailed prior to and during the trial. When the trial judge set the bail at $75,000 she observed that if Gillis posted the bail she would know that his involvement in the illicit narcotics trade was deep and that would be reflected in the sentence.

After the trial judge learned that Gillis had posted the $150,000 "appeal bond,” she, the very next day, held a hearing and revoked bail totally. The judge, during the course of that hearing, said that bail of $150,000 was decided upon the theory that it was well without the reach of the defendant. The judge, complaining that she had been "deceived” by Gillis’s failure to post the $75,000 pre-trial bail, stated that, "I told you [the attorney for the defendant] and I told him [the defendant] that I did not feel that this defendant should be released pending his appeal.” We think that what the judge was in effect trying to do was to pay lip service to the setting of bail, while at the same time denying it by fixing the amount in a sum well beyond the financial ability of the defendant. When the defendant or his wife arranged for the bail, the judge’s plan went awry. The judge, in this case, dangled bail like the "carrot was dangled before the horse.” The defendant, however, unlike the horse, reached the carrot, but he discovered it was artificial.

After the trial judge had revoked the bail, the applicant-defendant, filed an application for a writ of habeas corpus (bail) in the Baltimore City Court. The hearing judge, in that court, observed, "[n]o abuse of discretion by the trial court judge” in revoking the appeal bond. We have an entirely different view.

Md. Rule 776 provides that after a conviction, the trial court may release a defendant on bail pending appellate disposition. In deciding whether to release a convicted person upon bail, the trial court is required to consider three factors:

1. The seven elements of Md. Rule 721d.

2. That the defendant is not likely to flee the jurisdiction or pose a danger to the safety of other persons or the community.

3. That the appeal is not frivolous or taken solely for the purpose of delaying the execution of the sentence.

If the trial judge, after weighing those three factors, decides that the convicted defendant is entitled to bail pending appellate review, bail may be set in any sum not excessive. On the other hand, if the trial judge concludes that the convicted defendant does not satisfy the three factors, the judge may deny release on bail. The judge, however, should not set a bail in an amount designed to constitute no bail at all. In short, the bail, if allowed, should be reasonable under the circumstances of the particular case. In no event should it be illusory and a mocking of the process.

Patently, the trial judge, in the case at bar, found that Gillis did satisfy the three factors or else she should not have authorized the applicant’s release on bail in the first instance. Having established a dollar amount of the penalty of a bail bond, it is an abuse of discretion for a judge arbitrarily to revoke the bail once it has been posted. Of course, the judge should revoke the bail if there is some intervening fact brought to his or her attention that indicates the defendant is apt to flee from the jurisdiction, repeat the crime while on bail, or is a danger to himself or to the community.

There is nothing in the record before us that suggests that Gillis is apt to flee, will repeat the crime while on bail, or that he is a danger to himself or the community. We think the trial judge abused her discretion in revoking the bail, and that the Baltimore City Court erred in not so holding. We, therefore, grant the application for leave to appeal, reverse the order of the Baltimore City Court and remand to that court with instructions that it shall order the release of the applicant on bail pending appellate disposition, upon the posting of a bail bond in the amount of $150,000.

Application for leave to appeal granted.

Order of the Baltimore City Court reversed.

Case remanded to that Court with instructions.

Mandate to issue forthwith.

      . See, e.g., Justice Douglas’ opinion in Harris v. United States, 404 U.S. 1232, 92 S. Ct. 10, 30 L.Ed.2d 25 (1971), wherein he, sitting as a Circuit Judge, said:
      "While there is no automatic right to bail after convictions, Bowman v. United States, 85 S.Ct. 232, 13 L.Ed.2d 171 (1964), 'The command of the Eighth Amendment that "Excessive bail shall not be required * * *” at the very ¡east obligates judges passing on the right to bail to deny such relief only for the strongest reasons.’ Sellers, /v. United States / 89 S.Ct. |36| at 38 |21 L.Ed.2d 64 (1968)|.”
      "Where an appeal is not frivolous or taken for delay, bail 'is to be denied only in cases in which, from substantial evidence, it seems clear that the right to bail may be abused or the community may be threatened by the applicant’s release.’ Leigh v. United States, 82 S.Ct. 994, 996, 8 L.Ed.2d 269 (1962).”

      . Rule 721d provides:
      "In determining which conditions of release will reasonably assure the appearance of the defendant as required, and on the basis of information available to or developed by it in a pretrial release inquiry, the court shall take into account:
      1. The nature and circumstances of the offense charged, the nature of the evidence against the defendant, and the potential sentence upon conviction, insofar as these factors are relevant to the risk of nonappearance;
      2. The defendant’s prior record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings;
      3. The defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition and length of residence in this community and in this State;
      4. The recommendation of an agency which conducts the pretrial release investigation;
      5. The recommendation of the State’s Attorney;
      6. The court may consider the danger of the defendant to himself and the person of others in considering whether he should be released on his personal recognizance.
      7. Any other factor, including prior convictions, bearing on the risk of a willful failure to appear.”