author: Couch, J.,

text:
    ROBERT LOUIS STEVENSON, JR., EDWARD CLIFTON INGRAM, KENT ALTON WILSON and ALFRED ESTES v. STATE OF MARYLAND
    [No. 1333,
    September Term, 1978.]

      Decided July 12, 1979.

      The cause was argued before Melvin, Mason and Couch, JJ.

      Geraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George’s County, and Robert C. Bonsib, Assistant State's Attorney for Prince George’s County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Appellants Robert Louis Stevenson, Jr., Edward Clifton Ingram, Kent Alton Wilson and Alfred Estes were each convicted following a jury trial in the Circuit Court for Prince George’s County (Melbourne, J.), of two counts of robbery with a dangerous and deadly weapon and one count of use of a handgun in a crime of violence. Each appellant was sentenced to a total of thirty years incarceration and each timely noted an appeal.

The factual background for these appeals is this: The First National Bank of Southern Maryland, located in the Marlow Heights Shopping Center, was robbed on April 4, 1978. Several males, some armed, entered the bank and took money from two bank tellers’ cash drawers. Appellants Stevenson, Ingram and Wilson were arrested in the vicinity of the shopping center shortly after the robbery. Appellant Estes surrendered himself to the police several days later. Further facts will be supplied as each question presented by appellants is discussed. We are asked here to consider:

“1. Did the trial judge err in denying motions to suppress evidence derived from the illegal arrests of Appellants Stevenson, Wilson and Ingram?
2. Did the trial judge err in denying motions for judgments of acquittal made by Appellants Stevenson, Wilson and Ingram?
3. Did the trial judge err in denying motions for severance of defendants made by all Appellants?
4. Did the trial judge err in imposing separate, consecutive sentences for armed robbery and use of a handgun in commission of a crime of violence, when such charges merged?”

Inasmuch as certain of these issues apply only to some of the appellants, we shall discuss the non-common issues separately as to individual appellants. Those issues that are common to all appellants shall be considered together.

1

Did the trial judge err in denying motions to suppress evidence derived from the illegal arrests of appellants:

(a) Stevenson and Wilson

The record shows that at the time of the robbery three Washington, D. C. police detectives, in plain clothes, were riding in an unmarked car near the Prince George’s County shopping center where the bank was located. One of the detectives, Officer Franklin, testified that he saw two men emerge running from a cloud of red smoke or dye, about 40 to 50 yards from the rear of the bank. One of the men had what seemed to be a bag in his hand from which apparently emanated smoke and bits of paper. The detective testified that he was familiar with the use by banks of a device, disguised as a packet of bills, which contains tear gas and dye. This device explodes shortly after it is removed from a drawer in the bank. He remarked to his two companions, “There must be a bank robbery and those two are possibly part of it.” They pursued the two men by car and, after pulling abreast of the men, one of them identified himself as a police officer and ordered them to halt. One of the men turned and fled in the opposite direction. The second man turned into a driveway and found himself blocked by a blank wall, where he was soon apprehended. This man was subsequently identified as appellant Wilson.

The other man (Stevenson) was ultimately apprehended by D. C. Officer Bartholomew, who had been in the car with Officer Franklin. Bartholomew testified that he assisted Franklin in subduing Wilson, then saw the other subject run across the street and gave chase. He said he believed this subject was one of the two men he had seen running earlier, since the height and clothing were similar. The officer lost sight of the man for five or ten minutes as he ran behind an office building. Bartholomew questioned bystanders as to whether they had seen anyone run through the area. They responded affirmatively and one person remarked, “He is in the bushes up there by that car.” Bartholomew searched the bushes and found Stevenson lying on the ground. Stevenson was ordered out of the bushes and turned over to a Prince George’s County police officer. Stevenson and Wilson moved to suppress all evidence concerning the arrest, and any fruits derived therefrom, on the basis of an illegal arrest which produced poisonous fruit. The thrust of their argument is simply that their arrests were illegal because the Washington, D. C. police officers who arrested them did not have actual knowledge that a felony had been committed or probable cause to believe they had committed it. The State contends it was only necessary to show that the arrestors had probable cause to believe a felony had been committed and that the appellants committed it.

A close reading of appellants’ brief on this issue persuades us that they concede that the Washington, D. C. police officers were acting as private citizens at the time of the

arrests. Indeed, they conceded the point at oral argument. The trial court, in denying appellants’ motion to suppress, did so on the básis that a citizen’s arrest was being made and those making the arrests had probable cause to do so. This ruling was based upon Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 261 A. 2d 731 (1970) (a civil case), wherein the Court of Appeals stated:

“In Maryland a private person has authority to arrest without a warrant only when ... a felony has in fact been committed whether or not in his presence, and the arrester has reasonable ground (probable cause) to believe the person he arrests has committed it...” Id. at 655.

We shall affirm the ruling of the trial court, but for a different reason. We find it unnecessary in resolving this issue to address the question of whether a private citizen, in making an arrest for a felony not committed in his presence, must have actual knowledge that the felony has been committed or may, as is the case with a police officer making an arrest under similar circumstances, make the arrest having only reasonable grounds to believe a felony has been committed. Great Atlantic & Pacific Tea Co. v. Paul, supra; People v. Aldapa, 17 C.A.3d 184, 94 Cal. Rptr. 579 (1971); 49 Opinions of Attorney General 11 (1964); 133 A.L.R. 603; Law of Arrest in Maryland, Kauffman, 5 Md. Law Review 125 (1941).

We base our holding on the conclusion that the motion to suppress was obviously founded on a claimed violation of appellants’ rights under the Federal Fourth Amendment’s prohibition against unreasonable searches and seizures, which would bring'into play the exclusionary rule laid down in Wong Sun v. U. S., 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963). Under the facts and circumstances of this case the exclusionary rule is inapplicable. In the past it has been held repeatedly that “[B]y history, judicial rule and application, the exclusionary rule as to evidence seized in violation of the Fourth Amendment comes into play only when the evidence is obtained by governmental action.” Herbert v. State, 10 Md. App. 279, 284, 269 A. 2d 430 (1970), cert. den., 260 Md. 720; accord Ward v. State, 30 Md. App. 113, 116, 351 A. 2d 452 (1976), cert. den., 277 Md. 742. This Court in Herbert v. State, supra, elaborated further:

“When an individual obtains incriminatory matter from an accused, no matter how improperly, and such matter comes into the possession of the government without a violation of the accused’s rights by governmental authority, the exclusionary rule does not prohibit its use at trial.” Id. at 284-85.

Appellants, citing People v. Martin, 225 Cal. App.2d 91, 36 Cal. Rptr. 924 (1964), and Thacker v. Commonwealth, 310 Ky. 702, 221 S.W.2d 682 (1949), argue that the Washington, D. C. police officers were acting as agents of the State even though they made the arrests merely as citizens. Thus, they contend there was governmental action so as to bring into operation the exclusionary rule. We find these cases distinguishable.

In People v. Martin, supra, three City of Los Angeles policemen obtained information that the defendant had previous convictions for possession and use of narcotics. The defendant was not a resident of Los Angeles but lived in the City of Alhambra. The Los Angeles policemen traveled to the defendant’s hotel in Alhambra. Once there, they approached the defendant in the hallway of the hotel; one officer identified himself as such and they arrested defendant for use of narcotics. The officers, having obtained permission to enter the hotel room from the defendant, searched it and found a quantity of heroin. The State argued upon the authority of Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921), that the heroin was admissible since it was obtained in an unreasonable search and seizure by a private citizen. The California Court held Burdeau inapplicable and stated the following as its reason:

“... [T]he evidence was discovered by the arresting officers themselves, albeit as private citizens. Their citizen’s arrest was illegal...(... no misdemeanor offense was either attempted or committed in their presence). Their search of defendant’s premises, as an incident to their illegal citizen’s arrest, was also illegal... The seizure of the evidence during that illegal search must be realistically construed ... It was in the performance of their duties as officers and as employees and agents of the state. In fact, Officer Wesley so indicated when he identified the officers to defendant: .. stated, police officers.’ Accordingly, the search and seizure must be held ... to have been within the proscriptions of both the state and federal constitutions.” (Emphasis added.) 36 Cal. Rptr. at 927.

The Kentucky Court in Thacker v. Commonwealth, supra, held that citizen arrestors, who were particularly instructed by local police officers, the sheriff of the county, and state patrolmen to watch for a certain automobile and apprehend its occupants, one of whom was suspected of murder, were subject to the proscriptions against unlawful searches and seizures contained in Section 10 of the Kentucky Constitution. According to the Court a private individual, acting in concert with or at the direction of a peace officer must abide by Section 10 of the Kentucky Constitution. Id. at 683.

The present case bears no resemblance to either People v. Martin, supra, or Thacker v. Commonwealth, supra. Unlike the police officers in Martin, the officers here were not acting in the course of an investigation when they apprehended the appellants, although one D. C. detective did identify himself as a police officer. These detectives were in plain clothes, traveling in an unmarked car, and apparently off-duty. They simply did not invoke the authority of the State by their actions. Thus, we cannot conclude that they were engaged in the performance of their duties as officers and as employees and agents of the State. People v. Martin, supra at 927.

Nor do we think Thacker applicable to the present situation. None of the Washington, D. C. detectives were acting at the express direction of Maryland law enforcement authorities.

In the instant case the arrests were made by Washington police officers acting as private citizens. There is no evidence of government complicity on the part of the District of Columbia or the State of Maryland. Since this is true, then it follows that the evidence to be suppressed cannot be said to flow from impermissible government action, thus the exclusionary rule is not applicable and the motion was properly denied. Herbert v. State, supra at 285.

(b) Ingrain

Ingram’s arrest was effected by a Prince George’s County police officer under circumstances that appellant contends constituted an illegal arrest and thus all evidence of the arrest and its fruits should have been suppressed. This contention is based on the claim that the police officer lacked probable cause to make the arrest. Even if we were to agree with this sweeping, all-inclusive contention, which we do not (see Baker v. State, 39 Md. App. 133, 383 A. 2d 698 (1978)), we nevertheless find no merit to the argument because it is evident from the record that the arresting officer had probable cause to make the arrest. It seems settled in Maryland, and elsewhere, that a police officer may make a warrantless arrest for a felony committed in his presence, or out of his presence if he has reasonable grounds to believe a felony has been committed and probable cause to believe the person arrested committed it. See Art. 27, Sec. 594B, subsection (c), which specifically grants this authority and has been determined to be declarative of common law rules of arrest without a warrant. See Wescott v. State, 11 Md. App. 305, 273 A. 2d 824 (1971), cert. den., 262 Md. 750. We have previously defined probable cause, in the context of warrantless arrests, as follows:

“Probable cause exists in this context when the facts and circumstances within the knowledge of the arresting officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious person in believing that a felony had been committed by the person arrested.” Id. at 307, quoting Cleveland v. State, 8 Md. App. 204, 218-19, 259 A. 2d 73 (1969), cert. den., 257 Md. 732; see also Williams v. State, 14 Md. App. 619, 287 A. 2d 803 (1972).

Turning now to the facts and circumstances surrounding Ingram’s arrest, the record demonstrates that the arresting police officer, Sgt. Putnam, who was off duty, was conducting personal business a few doors from the subject bank when he became aware that a robbery was in progress at the bank. He proceeded toward the bank, following Sgt. Poe, a commissioned special security guard. Both had their guns drawn. Two men were seen coming out of the bank, the first carrying a handgun. When the men were ordered to halt the gunman ran toward the parking lot, where he escaped in an automobile, and the other man ran in the opposite direction. Putnam testified that before pursuing the gunman, he noticed the second man was wearing a burnt orange, lightweight jacket and a hat. When he returned to the bank after his unsuccessful pursuit of the gunman, he was advised that the second man had gone to the rear of the bank. He went to the rear of the bank and observed this individual standing on the sidewalk. Putnam further testified as follows;

“Q. Now, when you approached that individual over there, was there anything about that individual in addition to what the civilian witnesses had told you that led you to believe that that person was also involved in the robbery?
A. His physical stature, his body language. Like I said, skiddish, indecisive as to where to go, what to do, and the clothing was the same.
Q. Tell us about the clothing. What about the clothing that made you think that was a person involved in the robbery?
A. The two gentlemen that came out of the bank, the first moment I saw them, the second gentleman was wearing the same clothing that the guy in the rear of the bank had on, which was a lightweight burnt orange type jacket and a hat.
Q. What about physical stature?
A. Medium complexion, Negro male, medium build, 150 pounds.
Q. Are you referring to the person you saw in front of the bank or the person you saw on 28th Avenue?
A. One and the same.
Q. Those characteristics were the same on both? A. Yes.
*
I recognized him in my mind to be the person that I had initially seen at the front door.”

Thereafter, Putnam arrested this man and identified him as appellant Ingram.

From this evidence we have no difficulty concluding that the trial court was correct in denying appellant’s motion to suppress. We believe that these facts amply demonstrate that a reasonably cautious person would believe a felony had been committed and that appellant was one of the persons who committed it; thus Sgt. Putnam had sufficient probable cause to make the arrest.

2

Did the trial court err in. denying motions for judgment of acquittal made by appellants Stevenson, Wilson and Ingram?

Appellants Stevenson, Wilson and Ingram next argue that had their motion to suppress been granted, as it should have been, then the evidence would be insufficient to sustain their convictions. We need not dwell long on this issue in light of our holding on the suppression issue. We do not understand these appellants to contend that if the trial court was correct (as we now hold) in denying their motion to suppress there would then be insufficient evidence to support their convictions. We find no merit to this contention whatsoever.

3

Should the cases have been severed for trial?

Appellants urge us to hold that the trial court erred in denying their respective motions for severance; we shall decline to so hold.

All of the appellants moved to sever their trials from those' of the others and asked thereby for four separate trials. The trial court denied their pretrial motions as well as similar motions made during the course of the trial. In analyzing whether there was error in the denial of appellants’ motions, we begin by referring to Md. Rule 745 c, which provides:

“If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents or defendants, the court may, upon its own motion or the motion of any party, order separate trials of counts, charging documents or defendants, or grant any other relief justice requires.”

This rule and its similar predecessors have been interpreted many times by the Court of Appeals and this Court. We can synthesize certain guiding principles to be followed in determining this issue from an examination of these cases. The purpose of Rule 745, providing for joint trials and separate trials under certain circumstances, is to save the time and expense of separate trials and to allow for separate trials as justice requires. See generally Lewis v. State, 235 Md. 588, 202 A. 2d 370 (1964); Grandison v. State, 32 Md. App. 705, 363 A. 2d 523 (1976), cert. denied, 279 Md. 682. The decision'as to whether to grant a severance lies within the sound discretion of the trial judge. McKnight v. State, 280 Md. 604, 375 A. 2d 551 (1977); Jones v. State, 38 Md. App. 432, 381 A. 2d 317 (1978). Furthermore, joinder for trial is dictated under circumstances where most, if not all, of the evidence admitted at trial would have been admissible in each trial if the several defendants had been tried separately. Johnson v. State, 38 Md. App. 306, 381 A. 2d 303 (1977).

In examining- the record we observe that all of the defendants were charged in a single indictment with committing the same offenses and that such offenses flowed from a bank robbery in which they all allegedly participated. Thus it would appear that nearly all of the evidence needed to prove guilt in a joint trial would have been introduced in separate trials and would have been admissible. This case is readily distinguishable from such cases as McChan v. State, 238 Md. 149, 207 A. 2d 632 (1965), cert. den., 384 U. S. 1021, and Shingleton v. State, 39 Md. App. 527, 387 A. 2d 1134 (1978). In McChan, the defendant was put on trial with his codefendants in four cases in which he was charged jointly with at least two of the other defendants, and in three cases in which he was not charged at all. The Court of Appeals concluded that this was improper, based on its finding in Lewis v. State, supra, that the defendants could not have been charged in a single indictment because the offenses were different as to each and, absent their agreement, they could not be tried jointly. In Shingleton, the defendant was compelled to stand trial with two codefendants at the same time that other substantive charges, not connected with the defendant, were being pressed against the two codefendants. This was held to have been an abuse of discretion. We conclude, under the facts and circumstances present in this case, that thére was no abuse of discretion in denying the severance.

4

Should the convictions for robbery with a deadly and dangerous weapon merge with the conviction for unlawful use of a handgun in the commission of a crime of violence?

Appellants were convicted of two counts of armed robbery and one count for use of a handgun. For the latter convictions they received consecutive sentences. No complaint was made below regarding this issue and ordinarily we would not consider it on appeal, Md. Rule 1085. We shall consider the issue, however, since consecutive sentences were meted out. Rose v. State, 37 Md. App. 388, 377 A. 2d 588 (1977). We are asked to vacate the handgun sentence on the strength of Brooks v. State, 284 Md. 416, 397 A. 2d 596 (1979), wherein the Court of Appeals stated in part:

“... even though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the Legislature did not intend, under the circumstances involved, that a person could be convicted of ■ two particular offenses growing out of the same act or transaction.” Id. at 423.

Appellants argue that the legislative intent in both the armed robbery and handgun statutes was to increase the maximum sentence where a weapon was involved, not to subject offenders to two additional penalties for the same aggravating circumstances of the crime of robbery. We do not agree. We believe the legislative intent simply was to impose a more severe penalty in an armed robbery situation when any kind of deadly weapon is used and to increase that penalty when a handgun is used. As we said in Wright v. State, 24 Md. App. 309, 330 A. 2d 482 (1975), cert. den., 274 Md. 733:

“The statute, after generally defining the crime, designates it as a ‘separate misdemeanor.’ It then provides that the sentence, which may range from 5 to 15 years, shall be ‘in addition to any other sentences’ which may be imposed. The dominant purpose of this language and of all of Section 36B is to stop the alarming rise in the use of handguns in the commission of crimes of violence. Md. Code, Art. 27, § 36 (a).” Id. at 317.

While not argued here, we note it has been held that the imposition of separate sentences for robbery with a deadly weapon and the use of a handgun' in the commission of a felony does not violate double jeopardy principles. See Coates v. State of Maryland, 436 F. Supp. 226 (1977).

Judgments affirmed.

Costs to be paid by appellants.

      . Our consideration of this case would be quite different if off-duty Prince George’s County police officers were involved. Section 18-163 of the Prince George’s County Code (1975) provides:
      “Members of the Police Department are held to be always on duty, although periodically relieved from the routine performance thereof. They are subject at all times to orders from the proper authorities and to call by citizens. The fact that they may be off duty shall not be held as relieving them from the responsibility of taking police action in any matter coming to their attention requiring such action.”
      Thus, a Prince George’s County policeman acts at all times in his official capacity and not as a private citizen.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    GEORGE M. KLINE et al. v. THE CHASE MANHATTAN BANK, N.A.
    [No. 1337,
    September Term, 1978.]

      Decided July 12, 1979.

      The cause was argued before Gilbert, C. J., and Morton, J., and Samuel W. Barrick, Associate Judge of the Sixth Judicial Circuit, specially assigned.

      Burton A. Schwalb, with whom were James K. Stewart, Kevin J. McCarthy and Schwalb, Donnenfeld & Bray and O’Malley, Miles, Farrington & McCarthy on the brief, for appellants.

      Louis B. Thalheimer, with whom were Thomas L. Crowe and Cable, McDaniel, Bowie & Bond on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Trial judges, as a rule, are cast in appellate briefs in one of two roles, viz. they are either somewhat short of astute or, at least for the purpose of the particular appeal, a combination of Coke, Blackstone, Marshall, Holmes, Brandéis and Cardozo. This appeal is no exception. The appellants view the trial judge as having committed error piled upon error while the appellee, true to form, extols his wisdom.

At the root of this appeal lies the issue of whether the appellants should be held personally liable for the payment of the full amount of a deed of trust note executed between a limited partnership and the appellee. The appellants signed and delivered to the appellee’s assignor an “unconditional guaranty of due performance and prompt payment... of all the Borrower’s obligations under the Note, the Mortgage and the Building Loan Agreement... including all legal and other costs or expenses paid or incurred....” We think that the appellants are personally liable to the appellee, and we affirm the judgment of the Circuit Court for Prince George’s County (Loveless, J.). We shall now explain why.

THE FACTS.

In the fall of 1964, Mr. E. J. Dunningham, a Chase vice-president and lending officer, met with Mr. Richard Duckett, a Washington D.C. mortgage broker. At that time Chase was seeking borrowers for commercial real estate construction and permanent loans, and Duckett was in a position to locate prospective borrowers. Duckett spoke with Appellant Kline, a developer of commercial residential real estate. Coincidentally, Kline had a contract to purchase 22.8 acres of land in Prince George’s County upon which he intended to erect apartment houses. Kline showed to Duckett the preliminary plans for over 400 units. Duckett presented the plans to Dunningham.

At trial of this matter, Duckett testified on direct examination that Chase had agreed to the loan upon the following terms:

(a) Chase would have an appraiser estimate the value of the prospective project;
(b) Chase would lend 2/3 of the estimated value of the completed project, with the borrower liable for completing the project but with no personal liability for the permanent loan once the project was completed, the 2/3 figure being the “normal” or “floor” loan;
(c) Chase would lend up to 3/4 the estimated value, the difference between the 2/3 loan and the 3/4 loan being the “gap,” provided that there was personal liability for the “gap” until the permanent loan was paid down to the 2/3 level or a specific rent roll was achieved; alternatively, Chase would make a 3/4 loan without personal liability for the “gap” if the gap (i.e., at the tail end of the construction period) were held back, namely not advanced, until a rent roll achievement was met, or both;
(d) Chase would make a loan only through a New York intermediary corporation rather than directly to the borrower; the form would be that Chase would make the loan to the intermediary, who would, in turn, make the same loan to the ultimate borrower, and the loan arrangement between the intermediary corporation and the ultimate borrower would be assigned to Chase as collateral for the loan by Chase to that New York corporation.

Section I of the planned project was appraised at $2,770,000. Duckett, in the loan application pertaining to Section I, requested $1,830,000, a figure roughly two-thirds of the actual value of the project. Kline, however, was in need of an additional $200,000 for the purchase of the land. Unable to find equity investors for that sum, Kline set out to obtain the needed funds by applying for a 75% commitment, bringing the total loan to $2,050,000. In order to accomplish that end, according to Duckett, Kline would have to have “sufficiently strong guarantors ... so long as those guarantors took the bank off the hook for the difference between a normal loan [66%%] and ... an increased loan, 75 per cent.”

Kline, in May 1965, asked certain partners at the law firm of Arent, Fox, Kintner, Plotkin, and Kahn if they would invest in the project, become partners in the venture, and assume liability for the “gap” of $225,000. Eleven members of the firm agreed to do so, ten as limited partners, with Kintner as their nominee and as a general partner. Meanwhile, Duckett had purchased Conel Television Production, Inc. (Conel), a dormant New York corporation, that was to act as intermediary in setting up the loan and assigning the collateral to Chase.

On October 26,1965, the closing was held relative to Section I. Conel entered into a building loan agreement with the partnership for a $2,050,000 loan to finance construction. At the same time, Chase entered into a loan arrangement with Conel for the exact same amount. The Chase-Conel loan was secured by Conel’s interim pledge to Chase of its interest as construction mortgagee in the project.

At closing, the partnership delivered to Conel a document signed by all the partners, general and limited, and their wives. The pertinent parts of that document, the virtual eye of the storm now raging before us, provide:

“RE: Construction Mortgage Loan of $2,050,000 to Palmer Park Limited Partnership evidenced by Note and Mortgage or Deed of Trust (the Mortgage) dated September , 1965
To induce you to consummate the captioned transaction and to lend the indicated amount to the above named Borrower, to be advanced in accordance with a Building Loan Agreement made between you and the Borrower, we hereby jointly and severally represent, warrant and covenant as follows:
1. The Building Loan Agreement, Mortgage and Note were duly executed by the Borrower and are legal, valid and binding instruments, enforceable against the Borrower in accordance with their respective terms.
2. Each of us unconditionally guarantees to you and to any purchaser of the Note from you, the due performance and prompt payment, whether at maturity or by acceleration or otherwise, of all of Borrower's obligations under the Note, the Mortgage and the Building Loan Agreement, together with interest on such obligation to the extent provided for in said documents, including all legal and other costs or expenses paid or incurred by you in the enforcement thereof against either the Borrower or any of us.
3. Our liability hereunder shall be unaffected by any amendment or modification of the provisions of the Note or any other instrument made to or with you by the Borrower, whether made with or without notice to us, and we hereby covenant that we will cause the Borrower to maintain and preserve the enforceability of the instruments aforesaid as the same may be modified and to take no action of any kind which might be the basis for a claim that we have any defense to our obligations hereunder other than payment in full of the Note in accordance with its terms. Each of us hereby agrees to indemnify you against loss, cost or expense by reason of the assertion by the Borrower of any defense to its obligation under any of the instruments or the assertion by any of us of a defense to our obligation hereunder based upon any such action or inaction of the Borrower. Each of us waives any right or claim of right to cause a marshalling of the Borrower’s asséts or to cause you to proceed against any of the security for the Note before proceeding against us . or to proceed against us in any particular order and each of us agrees that any payments required to be made by us hereunder shall become due on demand in accordance with the terms hereof and of the Note immediately upon the happening of any default under the Note and without presentment of the Note to the Borrower, demand for payment or protest thereof, or notice of nonpayment or protest thereof and each of us expressly waives and relinquishes all rights and remedies accorded by applicable law to guarantors.
6. This guaranty shall be construed and enforced in accordance with the laws of the State of New York.” (Emphasis supplied.)

The guaranty of payment was one of the documents assigned as collateral to Chase by Conel in 1965.

Subsequently, in February 1966, Chase and the appellants entered into a loan agreement for Section II. The same guarantors executed a guaranty of payment for that loan, but, in contrast to the Section I document, it contained explicit provisions stating that the guarantor’s liability to Chase for Section II would terminate upon the completion and rent up of that section.

By July 1967, construction of Section I was completed and was substantially rented. Chase then purchased the note and allied documents for Section I from Conel.

As a result of the partnership’s default on both loans, Chase foreclosed on the mortgages. A substantial deficiency occurred. Obviously seeking to avert personal liability, the appellants herein filed an action against Chase in the Circuit Court for Prince George’s County, in Equity, seeking reformation of the above-quoted guaranty of payment. The objective of the reformation suit was to limit the liability of the guarantors for Section I, in a like manner as the guaranty for Section II. Chase counterclaimed under the guaranty for payment of the deficiency resulting from the foreclosure. Following a hearing in August 1976, Judge Ernest A. Loveless denied the appellants’ reformation and transferred Chase’s counterclaim to the law side of the court. “Finality” of the reformation decision, for purposes of appeal, was withheld until resolution of the counterclaim. Md. Rule 605.

The counterclaim was tried non-jury, before Judge Loveless. The judge ruled that Chase was entitled to payment in accordance with the terms of the guaranty, entered judgment for Chase and ratified its 1976 decree denying reformation of the guaranty instrument.

Desiring to escape from the net of financial entanglement in which they find themselves enmeshed, the appellants have brought their cause to this Court. They posit to us a series of questions as to whether the trial court erred in:

1) holding the appellants personally liable in the light of the evidence;
2) finding personal liability on the face of the closing documents which demonstrate that such liability was never intended;
3) holding the partners ratified the guaranty;
4) deciding that Chase sustained damages even though it actually suffered none and the deficiency judgment was founded in fraud;
5) awarding counsel fees on the basis of inadmissible hearsay, coupled with the lack of evidence as to reasonableness.

CLEARLY ERRONEOUS.

' The least common denominator of questions 1 and 2 is simply the old “clearly erroneous rule,” adorned in more sophisticated language. It is well established that when a case is tried non-jury, this Court will review the matter on both the law and the facts, but the judgment of the trial judge “will not be set aside on the evidence unless clearly erroneous----” Md. Rule 1086. The rule has been cited and discussed so many times that anything more than a reference to it is redundant.

Notwithstanding the wording of the guaranty agreement applicable to Section I, as above-quoted, the court brushed aside Chase’s motion for summary judgment and agreed to hear parol evidence concerning, contradicting, and explaining the written agreement. No question has been raised about the use of the parol evidence so that we, for the purpose of this appeal, accept it as properly utilized without expressing either approval or disapproval.

Appellants argue that the parties never intended that the individuals comprising the partnership be held personally liable for payment of the mortgage on Section I. The trial judge found that the wording of the exculpatory clause in the note provided “an ambiguity as to liability when interpreted in the company of the guarantee agreement.” Characterizing the intent of the drafter as “quite elusive,” Judge Loveless decided that a genuine dispute of fact existed at that stage of the trial, and that parol evidence would be heard to resolve the ambiguity he perceived.

After testimony, the court concluded “that the Chase Manhattan Bank is entitled to a judgment in this case.” The trial judge, in the course of an oral opinion, said, “[EJverything in that statement... is so clear to the effect that it is a guaranty to pay agreement. It is not just a guaranty agreement for the borrower’s liability, but it is a guaranty to pay that entire obligation, that mortgage, that note, which is a deed of trust.”

The judge concluded that while, at first glance, there was a conflict between the exculpatory clause in the deed of trust note and the unconditional guaranty signed by appellants, that when the parties were heard and the documents examined, the guaranty of payment was not nullified by the exculpatory clause in the note. The clause in the note held harmless the maker of the note, that is, the partnership. The court observed, however, that the guaranty of payment was executed by twenty-four individuals, the partners and their spouses, as guarantors of the “maker,” the partnership. In short, the partners and their spouses, jointly and severally, unconditionally guaranteed payment of the maker’s liability to Chase.

It is not the function of this Court to weigh conflicting evidence. We decide, merely, “whether there is any evidence legally, sufficient to support the finding of the trier of facts — in this instance the court sitting without a jury....” Carling Brewing Co. v. Belzner, 15 Md. App. 406, 412, 291 A. 2d 175, 179 (1972).

On the record before us, there was competent, material evidence legally sufficient to support the trial court’s conclusion. Therefore, the trial court was not clearly erroneous.

RATIFICATION.

Judge Loveless said:

“[The Partnership] made payments and interest payments. They furnished financial statements. And they knew definitely of ... [the personal liability] in 1970 and took no action.
Mr. Thalheimer [counsel for Chase] argues that this was tantamount to ratification, and I am inclined to agree.”

Appellants argue that the trial court was incorrect in that “there was no evidence that the partners ever agreed to be personally liable for the full permanent loan or any deficiency judgment.... There is ... no evidence of ratification.” We have an entirely different view.

The evidence presented at trial supports the findings of Judge Loveless that the partnership made payments of principal and interest. The judge’s reference to the appellants’ personal liability arose from a memorandum in which Earl Colson, an attorney and one of the appellants, opined on April 15, 1970 to Harry Plotkin, another of the appellants, that “it appears that: 1. We are personally liable on the permanent financing for Section One ($2,050,000).”

Furthermore, there was evidence that the appellants obtained several deferrals of principal amortization payments from Chase after Colson’s 1970 memorandum, and more than six years elapsed between the determination by Colson that the appellants were personally liable on the note and the filing of the reformation suit. That evidence, in our view, was legally sufficient to support the trial court’s conclusion that the appellants had ratified or acquiesced in the loan complete with their personal liability for payment. See Hoffman v. Seth, 207 Md. 234, 239, 114 A. 2d 58 (1955); Hagan v. Dundore, 187 Md. 430, 441, 50 A. 2d 570 (1946).

FRAUD IN THE FORECLOSURE.

Chase instituted foreclosure proceedings against the partnership in 1976. The sale of the property was held in 1977, but the proceeds were inadequate to pay the Section I mortgage debt in full. The chancellor entered a Final Decree of Ratification of the foreclosure sale in July 1977. That decree was sustained on appeal to this Court in Palmer Park Limited Partnership v. Thalheimer, an unreported per curiam opinion No. 914, September Term, 1977 (filed April 10,1978).

At the trial of the instant case, Judge Loveless ruled that the deficiency judgment, if there would be one, would be guided by “the value as set forth in the account once the sale had been ratified and confirmed.” Appellants here argue that that ruling was in error because of “the factual scenario of fraud” perpetrated by Chase during the foreclosure proceedings. Appellants are, in effect, attempting to challenge the validity of the foreclosure decree, notwithstanding its ratification by the trial court and this Court’s subsequent affirmance on appeal.

• Absent fraud, mistake, or irregularity in the foreclosure sale, the ratification by the court wraps the proceeding in the armor of res judicata so that the foreclosure may not be collaterally attacked for inadequacy of the price obtained at sale. McKenna v. Sachse, 225 Md. 595, 171 A. 2d 732 (1961); Walton v. Washington County Hospital Association, 178 Md. 446, 451, 13 A. 2d 627 (1940). Moreover, the right of the mortgagee to a deficiency decree against the mortgagor is not affected by the mortgagee’s buying of the property at the foreclosure sale, McKenna v. Sachse, supra; Pennsylvania Avenue Federal Savings & Loan Association v. Fedder, 175 Md. 127, 134, 199 A. 785 (1938), nor is the mortgagee-purchaser accountable to the mortgagor for profit, if any, made from a resale. Walton v. Washington County Hospital Association, supra; Pennsylvania Avenue Federal Savings & Loan Association v. Fedder, supra.

Ignoring the clear rule that a ratified foreclosure proceeding may not be collaterally assailed, the appellants sought to inject into the suit on the guaranty the revenant of fraud allegedly committed by Chase in the foreclosure. Appellants here aver that Chase had already obtained a purchaser for the property, at a price well in excess of that it paid at the foreclosure. The expert witness who testified for Chase in the foreclosure ratification proceeding valued the property at approximately $2,300,000. He had admittedly not been informed that Chase had a purchaser for the two sections at a price of $3,550,000. Because of Chase’s nondisclosure of the negotiations relative to a resale, appellants perceive that a fraud has been perpetrated upon them and the court.

A serious question arises as to whether the issue of fraud, as such, was ever squarely placed before the trial judge, but if we assume arguendo that it was, then it certainly was not ruled upon by him and is not properly before us. Md. Rule 1085. Nevertheless, we shall briefly address the matter.

To explain their failure to raise the question of fraud during the foreclosure ratification proceeding, the appellants state that they did not know that Chase had negotiated for resale until discovery proceedings were employed in the suit on the guaranty. Even if that be so, the suit on the guaranty is the wrong place, the wrong way, and the wrong time to assert fraud in the foreclosure. The proper method would be.to petition the equity court pursuant to Md. Rule 625 a to revise its ratification decree on the ground of fraud. Md. Rule 625 a confers upon trial courts the power to revise its judgments at any time where fraud is asserted and proven, subject, of course, to laches and the rights of innocent third parties.

ATTORNEYS’ FEES.

Appellants argue that the award of attorneys’ fees to Chase’s counsel was based on two sets of invoices which were inadmissible hearsay, and that no foundation was laid for the admission of the invoices.

Business records are admissible under the exception to the hearsay rule if “made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event,” and the “practice of the business must be to make such written records of its acts at the time they are done or within a reasonable time afterwards.” Md. Courts and Judicial Proceedings Code Annotated (1974) § 10-101 (b) and (c). Before the records can be received into evidence, a foundation must first be established showing that the records were made in the regular and normal course of business. Courts art. § 10-101 (b) and (c) does not require that the foundation consist of testimonial evidence. Morrow v. State, 190 Md. 559, 59 A. 2d 325 (1948). “At times a court may properly conclude from the circumstances and the nature of the document involved that the proffered document was made in the regular course of business.” Thomas v. Owens, 28 Md. App. 442, 448, 346 A. 2d 662, 665 (1975). See also Pine Street Trading v. Farrell Lines, 278 Md. 363, 373, 364 A. 2d 1103, 1110 (1976). In Thomas v. Owens, supra, we held that invoices from a professional organization were admissible to prove damages without testimony to establish their character as business records. In the case now before us, the professional bills of the appellee’s attorneys were clearly records made in the regular course of business. As such, they were properly admitted as evidence of the legal services performed, but not as evidence that the charges contained therein were reasonable. Thomas v. Owens, supra, 28 Md. App. at 445. There must be other evidence demonstrating that the charges set forth in the invoice are reasonable. Ibid. Ordinarily, the court should receive testimony as to the reasonableness of the charges, but where, as here, the trial judge was thoroughly familiar with the nature of the proceedings from their inception in the foreclosure proceeding through the trial on the guaranty, as well as the quantity and quality of the services performed by appellee’s attorneys over an extended period of time, he may rely upon his own knowledge and experience in determining the value of counsel’s services. Foster v. Foster, 33 Md. App. 73, 77, 364 A. 2d 65, 68, cert. denied, 278 Md. 722 (1976). That is precisely what Judge Loveless did in the case at bar. Based upon his own experience and knowledge of the value of the services of counsel he considered “the overall picture” and reduced the claim for fees from $135,000 to the fee of $75,000 that he ultimately allowed. We observe no error.

Judgment affirmed.

Costs to be paid by appellants.

      . Appellants Kline and Kintner were general partners in the Palmer Park Ltd. Partnership. Kintner held his general partnership interest for himself and as nominee for eleven other limited partners.

      . Chase Manhattan Bank.

      . Conel Television Productions, Inc.

      4. “Guaranty, v. To undertake collaterally to answer for the payment of another’s debt or the performance of another's duty, liability, or obligation; to assume the responsibility of a guarantor; to warrant.” Black’s Law Dictionary 833 (4th ed. Rev. 1968).

      . Duckett continued to act as “go-between” throughout the transaction.

      . An exculpatory clause in the note read as follows:
      “Anything in this note to the contrary notwithstanding, it is understood and agreed that the maker, or its successors or assigns, or any other person acquiring its estate or interest in the mortgaged property, shall not be personally liable for the payment or repayment of any sums provided for in this note, or for the performance of any of the terms, covenants or agreements herein contained, all of such personal liability being expressly waived and released. In the event of the foreclosure of the aforesaid Deed of Trust, no deficiency judgment shall be asserted or be collectible against the maker or its successors or assigns.” (Emphasis supplied.)


author: Lowe, J.,

text:
    RICARDO DAVID COARD v. STATE OF MARYLAND NEIL WILLIE ENGLISH v. STATE OF MARYLAND
    [No. 1343,
    [No. 1344,
    September Term, 1978.]
    September Term, 1978.]

      Decided July 12, 1979.

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

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Valerie A. Leonhart, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Neil R. Myerberg, State’s Attorney for St. Mary’s County, and John E. Pleisse, Assistant State’s Attorney for St. Mary's County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The primary issue to be decided in these two cases arises from a consent decree in the United States District Court case of Dorsey v. Solomon, 435 F. Supp. 725 (D. Md. 1977), affirmed in part and remanded in part, 604 F.2d 271 (4th Cir. 1979). Dorsey was a class action brought seeking a declaration of unconstitutionality of the Maryland law governing involuntary commitment of persons found to be “not guilty” by reason of insanity. In addition to numerous issues decided, a partial consent decree was submitted by the parties and approved by the court.

The “parties” who agreed to this decree, presumably on behalf of the State, were:

“Neil SOLOMON, in his official capacity as Secretary of Health and Mental Hygiene of the State of Maryland, Benjamin D. White, in his official capacity as Acting Commissioner of Mental Hygiene of the State of Maryland, Wilfried R. Freinek, in his official capacity as Acting Superintendent of the Clifton T. Perkins Hospital Center, David L. Cahoon, in his official capacity as Associate Judge of the Circuit Court for Montgomery County, Albert L. Sklar, in his official capacity as Associate Judge of the Supreme Bench of Baltimore City, Shirley B. Jones, in her official capacity as Associate Judge of the Supreme Bench of Baltimore City, and James A. Perrott, in his official capacity as Associate Judge of the Supreme Bench of Baltimore City, Individually and on behalf of all others similarly situated, Defendants.”

The “party” incidentally bound to this decree was The Department of Health and Mental Hygiene (The Department), through its Secretary, Neil Solomon.

The decree provided, among other things, that:

“2. The Department of Health and Mental Hygiene shall submit to the Court the required evaluation report under Article 59, § 27 Maryland Code Annotated not later than thirty (30) days from the date of the Court’s order directing evaluation and examination of the insanity acquitted person.
5. No insanity acquitted person shall be confined for treatment pursuant to Article 59, § 27 Maryland Code Annotated, without a prior judicial hearing to be held within sixty (60) days after receipt of the evaluation report.” 435 F.Supp. at 730-731 (emphasis added).

In both cases before us, the appellants argue that because the commitment hearing was not held within sixty days of the receipt of the evaluation report from Clifton T. Perkins Hospital they must be released. Appellants rely solely upon Moss v. Director, 279 Md. 561 (1977), contending that the term “shall” in the consent decree is mandatory. The State expressly concedes factual noncompliance with the exact time provisions of the consent decree, but it argues both that the use of “shall” is directory rather than mandatory and that the sanction for any deviation from the decree’s terms should not be dismissal and release.

It is our opinion that the District Court did not intend the extreme sanction of release appropriate for a procedural noncompliance of limited significance; and even if it did, the Courts of Maryland are under no compulsion to enforce a United States District Court decree by a sanction injurious to their citizenship, the justice with which it cannot agree.

In neither case before us has there been an allegation of prejudice. Each appellant has had his hearing, but complains only that it was delayed — in the case of English for 17 days, and of Coard for 23 days — beyond the 60 days set forth in the decree. In the case appellants rely upon, Dorsey v. Solomon, supra, the relief granted was not a release of the committed person, but rather the provision of a new hearing to be held in compliance with the new law formulated by the court. Both appellants in the cases before us had their hearings belatedly, but not prejudicially so; such prejudice, if proffered must be measured against due process standards. Humphrey v. Cady, 405 U. S. 504 (1972).

In Moss, supra, upon which appellants rely, the Court of Appeals stated:

“It is now a familiar principle of statutory construction in this State that use of the word ‘shall’ is presumed mandatory unless its context would indicate otherwise ....” Id. at 564-565.

The time provision in question actually used the term “shall forthwith” rather than “shall.” The Court of Appeals acknowledged, as we had, that other opinions of the Court of Special Appeals “had previously indicated the ‘forthwith’ language was mandatory;” accordingly, in the Moss case they again “agree[d] that it is.” In that context they quoted the familiar principle of statutory construction “that use of the word ‘shall’ is presumed mandatory unless its context would indicate otherwise.” Id. at 564-565.

The provisions now before us do not use the. “forthwith” term found useful in Moss to indicate mandatory intentions. We also note that in Moss the Court of Appeals addressed a statutory interpretation question. However, when dealing with an interpretation of its rules, Md. Rule 18, the Court of Appeals has held that the word “shall” was not mandatory but directory. Pressley v. Warden, 242 Md. 405, 406-407 (1966). Compare Johnson v. State, 282 Md. 314 (1978). That holding was based upon several cases interpreting as directory the same word used constitutionally in Md. Const., Art. IV, § 23 in the same context as the rule. Id. at 406.

While not always dispositive of the interpretative question, the absence of a penalty provision also indicates that the language sets forth directory rather than mandatory guidelines. Moss, supra at 566. That guide would seem most appropriately applied to a decree by a court cognizant of the need for penalties to enforce its decree. The absence of an explicit release provision indicates that the consent decree constitutes a good faith agreement of the parties sanctioned by the court in light of its inherent powers to enforce, but the decree hardly “mandates” the action with peremptory release as the alternative.

We also point out that which both parties seem to have overlooked. Maryland Courts are not bound by the decisions of the United States District Courts or of the United States Courts of Appeals. Wiggins v. State, 22 Md. App. 291, 302 (1974), aff’d 275 Md. 689 (1975). Even when a federal court (other than the Supreme Court) decides an issue directly contrary to State policy, we are not compelled to enforce its holdings unless we are persuaded by the reasoning supporting its decisions. Wiggins, supra.

The federal courts are generally cognizant of this limitation (Lawrence v. Woods, 432 F. 2d 1072 (7th Cir. 1970)) and in the Dorsey case particularly acknowledged that it did not intend to substitute its views for State policy especially procedurally:

“ ... this Court does not sit as a superlegislature to determine state policy. Only constitutional questions are presented in this case, and so long as a procedural requirement approved by the Attorney General of Maryland does not offend the United States Constitution, this Court should not write into state law a different standard which might seem to the Court to be more desirable.” Dorsey v. Solomon, supra at 737.

The Dorsey Court then directed its ruling at constitutional compliance guaranteeing a hearing. The procedural aspect of time, within constitutional limitations, was by agreement of the parties, although stamped with the approving imprimatur of the court.

It is inconceivable in any case, that the District Court would, if it could, compel this Court or the State to release persons, whose culpable conduct has been conceded but excused, either because they do not understand what is criminal, or they know what is criminal but cannot help acting out in the proscribed manner. Md. Ann. Code art. 59, § 25 (a). See Gardner v. State, 41 Md. App. 187 (1979), cert. granted, 284 Md. 744 (March 28, 1979). To release such persons into society because of a relatively insignificant administrative breakdown, in the absence of prejudice, is an unacceptable alternative sanction. Society must not always be the scapegoat simply to enforce rigidly every agreed upon procedural compliance. The extreme dismissal sanction for speedy trial denial, Barker v. Wingo, 407 U. S. 514 (1972), and for its statutory little brother, Md. Ann. Code art. 27, § 616 S, is directly related to the abrogation of constitutional rights, as are the other sanctions (such as the exclusionary rule) construed to enforce adherence to constitutional principles by denying societal relief without punishing the offender or other party at fault for the violation. But nowhere has there ever been so extreme a sanction applied against society rather than the offender for a procedural noncompliance with a nisi prius court decree of the type here formulated by a stipulation between the parties seeking a declaratory judgment.

The penalty available to the District Court for failure to comply with its decrees is the inherent power of contempt, and that is applicable only against the parties to the case. We are unaware of any authority in the District Court to release Maryland’s criminally insane for procedural violation of the District Court’s decrees; but of more significance here, we are unaware that that court can compel a Maryland Court to do so. Moon v. State, 1 Md. App. 569, 571 (1967), aff’d 250 Md. 468 (1968); see also Davis v. Director, 29 Md. App. 705, 710-717 (1976). Perhaps it may hold the offending party (e.g:, Neil Solomon, Secretary of the Department of Mental Health and Hygiene) in contempt and punish him, it or them accordingly, for failure to comply with a decree to which he or they had committed himself or themselves and the department.

The second question raised in each case is also identical, but of no serious consequence.

“Did the trial court err in allowing a psychiatrist to testify as an expert in the area of the prediction of future behavior?”

The argument of appellants is succinctly set forth by the State.

“Appellant argues that Dr. Abbas testified as an expert in the field of augury without being qualified as an expert in devination.”

The argument is frivolous as indicated by the State’s concise response:

“It is simply a matter of common sense that the psychiatrist is eminently qualified to state with reasonable accuracy what a person’s future behavior is likely to be on the basis of that person’s past behavior.”

The trial judge did not abuse his discretion in seeking expert help in the ultimate issue to be decided Andrews v. Andrews, 242 Md. 143, 152-153 (1966).

Judgments affirmed.

Costs to be paid by appellants.

      . Senate Bill 870, focusing on the procedures for confinement and release of persons found not guilty of a crime by reason of insanity, has subsequently been enacted and takes effect July 1, 1979.

      . Although mentioned in a footnote in the State’s brief and at oral argument, the due process issue addressed in the recent case of Addington v. Texas, 441 U. S. 418, 60 L.Ed.2d 323 (1979), is not properly before us for review. Md. Rule 1085; Vuitch v. State, 10 Md. App. 389 (1970), cert. denied, 261 Md. 729 (1971).


author: Moylan, J.,

text:
    RICHARD P. BROWN et al. v. SUPERVISOR OF ASSESSMENTS FOR MONTGOMERY COUNTY, MARYLAND
    [No. 886,

    September Term, 1978.]

      Decided July 6, 1979.

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

      R. Edwin Brown, with whom were Brown & Sturm on the brief, for appellants.

      Peter W. Taliaferro, Assistant Attorney General, with whom was Francis Bill Burch, Attorney General, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellants are owners of 32.34 acres of farmland in the Barnesville area of Montgomery County. They are appealing specifically the tax assessment for the year 1973 on a %-acre segment of that larger tract improved by a tenant house. The house was assessed at $10,200 and the %-acre curtilage surrounding it at $3,400. The Supervisor of Assessments for Montgomery County is the appellee.

The appellants entered a timely protest and appealed the assessment to the Maryland Tax Court. That court heard evidence and passed an order affirming the assessment. Contending that the decision of the Maryland Tax Court was arbitrary, capricious, confiscatory and otherwise illegal, the appellants appealed to the Circuit Court for Montgomery County. Following argument in that court, Judge David L. Cahoon filed a Memorandum and Order on July 26, 1978, affirming the decision of the Maryland Tax Court. Upon this present appeal, the appellants raise two contentions:

1) That it was error for the appellee to assess the farm curtilage, improved by a tenant dwelling house on an unsubdivided farm property, at 50% of its alleged market value; and

2) That it was error for the appellee to ignore the Appraiser’s Manual for the State of Maryland and to use a non-uniform method of depreciating the house.

The appellants are trustees of the larger farm in question, having secured a tenant farmer to live in the house and to work the land following their father’s death in 1961. The land, used exclusively for agricultural purposes (other than the residence now in question), is improved only by a bank barn and by the tenant dwelling house. The house is situated on a Vfc-acre curtilage and is surrounded by a mowed lawn and trees.

Testimony before the examiner of the Maryland Tax Court established that the dwelling had been constructed before the turn of the century, at least by 1890. The house has no basement, central heating or air conditioning; it does have a tin roof, frame exterior walls, plaster interior walls, pine floors, a 35-year-old bathroom equipped with an old-style tub on legs, electric heat and two porches. Water is supplied from a dug well. In addition, testimony established that there had been no changes in the neighborhood or community to alter the essentially agricultural nature of the area.

The county tax assessor separately assessed the homesite, allocating Vs acre for its support. Generally, zoning requirements mandate a two-acre support for the construction of new residential dwellings, but since 90% of the homesites in the area were developed on half-acre sites previous to the promulgation of Rural Agricultural (RA) zoning requirements, the practice established for assessment purposes in the area is to set aside one-half acre sites for residential use.

In determining the status of particular land as either residential or bona fide agricultural property so as to merit preferential tax treatment, the Maryland Department of Assessments and Taxation, pursuant to Md. Code Ann., Art. 81, § 19 (b), set forth certain relevant criteria in Regulation No. 9. These include, but are not limited to, applicable zoning ordinances; general character of the neighborhood; present and past use of the land; business activity of the owner on and off the subject property; principal domicile of owner and family; whether the farming operation is conducted by the owner or another for the owner, and if the latter, the terms of the arrangement; uses, other than the farming operation of the land; and the ratio of farm or agricultural use as against other uses of the subject property.

In light of these factors, the assessor determined that the V2 acre upon which the dwelling sits was being put to residential rather than agricultural use, thus precluding the application of the special agricultural land use assessment exemption provided by Art. 81, § 19 (b) of the Code. The %-acre homesite, at residential value, was assessed at $3,400, based on values of three comparable, non-agricultural Vis-acre homesites.

Then, consistent with established practice, the dwelling was assessed on a cost reproduction, less depreciation, approach. Cost reproduction assessment is based on the structure’s dimensions and type, together with additional factors such as the existence of porches and heating systems, all integrated into the cost of the dwelling’s reconstruction in Montgomery County for the tax year 1973. The value thus calculated was $32,674.

The dwelling’s depreciation was calculated by an initial reduction in value of a basic rate of 35%, as set by the County Tax Commission Office, on observed depreciation of its condition. Testimony established that the structure’s age (i.e., predating 1920) was the determinative factor in the assessor’s use of this basic rate, as opposed to strict adherence to the practices set forth in the Appraisal Manual for Maryland Assessors, as mandated by Md Code Ann., Art. 81, § 19 (b), § 244. (Moreover, use of the manual for a dwelling of 70 years of age or more, of average construction type, such as the dwelling in question, would have established a rate of depreciation of about 52%.) In addition to the basic rate, the assessor deducted another 20% for “functional and economic obsolescence” for a total depreciation of 55%. These computations valued the house at $16,990. After further reduction of 40% for inflation, the dwelling’s assessment was valued at $10,200. By adding the assessment of the bank barn, the total assessment of improvements on the land was $10,900.

The assessor was confronted with a situation wherein, on one hand,- an agricultural community included homesites with “landscaped” lawns and trees, and, on the other hand, a piece of agricultural property included a homesite leased out to a tenant farmer who lived in the house and tilled the soil. The appellants sought to establish before the Tax Court that the property in question was strictly used for agricultural purposes, as was the land in the surrounding community. They further attempted to show that the dwelling supported by the Ms-acre homesite, set aside for residential use by the appellee, existed solely for the purpose of the continued maintenance and operation of the adjacent farmland.

The appellants rely mainly on Warlick v. Supervisor of Assessments of Anne Arundel County, 272 Md. 540 (1974), in arguing that a homesite occupied by a tenant farmer hired to work the surrounding farmland should be considered agricultural property and thus deserves the exemption benefits granted farmland by the Legislature in Md. Code Ann., Art. 81, § 19 (b). In Warlick, the Court of Appeals affirmed the residential rate assessment of a one-acre tract of land on which Warlick built a house on his farm. In doing so, the Court offered appellants the basis for their cause by stating, “We do not reach the question whether accessory or auxiliary structures on a farm, occupied by farm employees need necessarily be assessed in a similar fashion.” 272 Md. at 544.

In making this statement, however, the Court of Appeals in no way decided the matter in favor of the appellants. In fact, the Court again announced its interpretation of § 19 (b) as it set it forth in Perdue, Inc. v. State Department of Assessments and Taxation, 264 Md. 228 (1972), by holding that “the preferential treatment accorded by Code Art. 81, § 19 is essentially an exemption, and as such must be strictly construed.” 272 Md. at 545. Perdue itself held, “It is fundamental that statutory tax exemptions are strictly construed in favor of the taxing authority and if any real doubt exists as to the propriety of an exemption that doubt must be resolved in favor of the State.” 264 Md. at 232-3.

In terms of our standard of review, it is accepted that the circuit court, and the appellate court, will extend significant deference to the determinations made by the assessing authorities. “It is firmly established in this State that the relative weight to be accorded to any relevant factor in a particular case is for the assessing authorities and not for the courts.” Fields v. Supervisor of Assessments for Montgomery County, 255 Md. 1, 4 (1969), quoting Bornstein v. State Tax Commission of Maryland, 227 Md. 331 (1962). And in Insurance Commissioner v. National Bureau, 248 Md. 292 (1967), the Court discussed the process of reviewing decisions of administrative agencies:

“The required process is difficult to precisely articulate but it is plain that it requires restraint and disciplined judicial judgment so as not to interfere with the agency’s factual conclusions under [any determination process to make a decision utilized by the agency] ... [U]nder any ... standards the judicial review essentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.” (Emphasis in original) 248 Md. at 309-310.

See also Supervisor of Assessments of Baltimore County v. Banks, 252 Md. 600 (1969).

Furthermore, judicial review of decisions of the Maryland Tax Court is limited by Md. Code Ann., Art. 81, § 229 (o), which provides that the county circuit court or Baltimore City Court “shall determine the matter upon the record made in the Maryland Tax Court. The [court] should affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.”

Thus, this Court rejects the appellants’ contention of error in the assessor’s finding that the homesite and dwelling are used for residential purposes, and not for strictly agricultural use. We find no error of law in this determination, and based on substantial supportive evidence in the record, and as a matter of the proper exercise of judicial authority in this area, must defer to the expertise of the administrative agent in the field, and affirm his findings.

Appellants next contend that the rate of depreciation applied to the cost of reproduction of the homesite dwelling was erroneous in that the tax assessor failed to adhere strictly to the depreciation principles set forth in the Appraisal Manual for Maryland Assessors (Ward, 1970). However, even had the assessor used the manual for his valuation, the depreciation rate for the dwelling in question would have been 52%, as opposed to the 55% figure, comprising depreciation and “functional and economic obsolescence.” The 70% figure quoted by the appellants as the “true” depreciation rate that they argue should be applied is not evident in view of the manual’s graphs, and could possibly be arrived at only by adding the manual’s depreciation rate (52%) to the obsolescence valuation of 20% added on by the assessor. To disregard the calculations of the tax assessor, as well as his factual conclusions relative to the use of the property, would not be in the best interests of the proper exercise of judicial authority in reviewing tax assessment cases, as repeatedly enunciated in Banks, supra, and Warlick, supra.

In addition, the manual itself provides for the elasticity in valuation which the appellants contest. The depreciation tables are explained in such a fashion as to warrant the conclusion that the manual’s figures are more like guidelines than strictly-followed regulations. The manual refers to this section as a “depreciation guide” and states that “substantial accuracy in estimating depreciation, under the trained eye of the assessor, will result by using the general rules of allowing percentage depreciation in diminishing amounts” and, further, that “indicated depreciation rates on each of the graphs are broad guidelines only. Adjustments should be made as individual circumstances may warrant.” (Manual, Volume I, Depreciation Section, pp. 5-6)

The appellants also argue that Md. Code Ann., Art. 81, § 244, requires strict adherence to any regulation promulgated for assessment purposes. In Macht v. Department of Assessments of Baltimore City, 266 Md. 602 (1972), however, the Court held that “[i]t has long been established that assessors have reasonable latitude in selecting a method of valuation, so long as they arrive at the ‘full cash value’.” 266 Md. at 608.

In Verkouteren v. Supervisor of Assessments for Montgomery County, 88 Md. App. 216 (1977), this Court was asked to review the assessment of a house for which no comparable homes existed. In interpreting § 244, the Court held at p. 222:

“No constitutional violation occurs just because the assessment method is not the same for all property in the state. It is firmly established that in valuing property assessors have reasonable latitude in selecting a method of valuation, so long as they assess the property at its full cash value.... Hence, in order for the method used to result in a non-uniform rate of tax the property must be assessed at some figure other than its full cash value. Determining whether the method of depreciation causes the appellant’s property to be assessed at something other than full cash value is basically a factual question involving the expertise of the administrative agencies established under Art. 81.”

The trained assessor, in valuing depreciation of a dwelling more than 70 years old, utilized a basic rate of 35% set by the county assessment office. This was within his legally permissible discretion, and in line with the doctrines set forth in Banks, supra, and Warlick, supra. For the above-stated reasons, the decision of the Circuit Court is affirmed.

Judgment affirmed; costs to be paid by appellants.


text:
    WILLIAM MICHAEL DILLON v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. et al.
    [No. 1345,
    September Term, 1978.]

      Decided July 13, 1979.

    The cause was argued before Gilbert, C. J., and Morton, J., and Samuel W. Barrick, Associate Judge of the Sixth Judicial Circuit, specially assigned.
    Submitted on brief by Alan Hilliard Legum and Legum, Cochran, Chartrand & Wyatt, P.A., for appellant.

      Bruce S. Harrison, with whom were William J. Rosenthal, Patrick M. Pilachowski and Shawe & Rosenthal on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

Failing to convince Judge James L. Wray in the Circuit Court for Anne Arundel County that a violation of Md. Ann. Code art. 49B, § 16 (Discrimination in Employment) gives rise to a private cause of action, the appellant, William Michael Dillon (Dillon) has carried his banner to this Court.

The issue put to us is “[wjhether the lower court erred in sustaining Appellees’ Demurrers without leave to amend?” Obviously, what appellant seeks to do is to pioneer a new trail through the legal forest, thus enabling him to maintain a civil claim for monetary damages as a direct result of his not being hired by the appellees, The Great Atlantic and Pacific Tea Company, Inc. (A & P) and Edward Travers, an employee of the A & P. Undaunted by Dillon’s cries of outrage, A & P and Travers urge that we answer, “Pioneer, Go Home.'”

Before setting forth our discussion of the applicable law, we shall briefly state the facts as pleaded.

On April 24, 1975, Appellant William Michael Dillon “applied for a position as a Porter with the A & P ... Store then located on West Street, Annapolis, Maryland.” Dillon “filled out a form and was given a card to take to the regional office of” appellee. The very next day, Dillon reported to the regional office, “took a test ... completed some additional forms ... [and] was given a card indicating that he was hired as a Porter effective April 28, 1975 at a rate of $3.55 per hour.” During the intervening weekend, however, Dillon was notified “by an employee of the Annapolis Store ... that he should not report to work on Monday since it had been decided by ... Edward Travers that... [Dillon] was not to be employed.”

One week short of three years later, Dillon filed suit alleging that appellees, A & P and Travers, its “agent servant and or employee,” violated Md. Ann. Code art. 49B, § 19 by refusing to employ Dillon as originally indicated. Dillon alleged that “the sole reason for ... [A & P’s] repudiation of the employment agreement was ... [Dillon’s] physical disability which is unrelated in nature and extent so as to reasonably preclude the performance of the employment.” Dillon requested compensatory and punitive damages.

Appellees filed a “DEMURRER AND MOTION RAISING PRELIMINARY OBJECTION” on June 20, 1978. They contended that “there is no cause of action recognized at common-law in Maryland for individual relief from employment discrimination, ... [that] Art. 49B of the Annotated Code of Maryland, which forbids discrimination in employment on the basis of, inter alia, physical handicap, does not provide for private causes of action to remedy alleged employment discrimination”. They further asserted that Dillon “failed to state any claim upon which relief can be granted,” and that even if Maryland recognized “a private right of action for employment discrimination,” Dillon failed to exhaust his administrative remedies, and that Dillon was barred by the applicable statute of limitations from prosecuting the suit.

Judge Wray sustained the Demurrers without leave to amend. This appeal followed.

At common law no claim may be successfully asserted on the ground that the claimant was discriminated against in employment because of a physical handicap or disability. Moreover, a negligent refusal to hire a person does not give rise to a right of action by the “would-be” employee against the “would-not-be” employer. If there is to be any redress to Dillon because of the “negligent” failure to employ him, the authority therefor must be found within Md. Ann. Code art. 49B, § 16. See Gutwein v. Easton Publishing Co., 272 Md. 563, 569, 325 A. 2d 740, 743 (1974), cert. denied, 420 U. S. 991, 95 S. Ct. 1427, 43 L.Ed.2d 673 (1975).

Prior to 1974, there was no legislative protection for a person claiming to be discriminated against because of a physical handicap. By Laws 1974, ch. 875, however, the General Assembly re-enacted section 19 (a) which read as follows:

“(a) It shall be an unlawful employment practice for an employer:
(1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, age, [or] national origin, MARITAL STATUS, OR PHYSICAL OR MENTAL HANDICAP UNRELATED IN NATURE AND EXTENT SO AS TO REASONABLY PRECLUDE THE PERFORMANCE OF THE EMPLOYMENT....” (Emphasis in original.)'' '*

Such was the statutory language in effect in April 1975, when the claim underlying the instant case accrued. The administrative body charged with effectuating Article 49B is the Maryland Commission on Human Relations. Redress through administrative channels, in the words of Judge Kaplan, includes “an elaborate scheme for investigation, findings of facts, negotiation toward voluntary settlement and an enforcement procedure including access to the courts if a final order is not complied with or if temporary injunctive relief is deemed appropriate by the Commission....”

Laws 1977, ch. 937, conferred upon the Commission the power to “award monetary relief,” but the award is limited to a period of two (2) years, except that the time spent in appellate review is not to be counted within the two-year time frame. Md. Ann. Code art. 49B, § 11 (e). Prior to July 1,1977, the Commission was without authority to grant monetary relief to a claimant. Md. Ann. Code art. 49B, § 11 (f). That is the principal holding of Gutwein. The Court of Appeals interpreted the employment discrimination sections of art. 49B and decided that the statute did not empower the Commission to make monetary awards for compensatory or other damages. Patently, Laws 1977, ch. 937 is the legislative reply to that holding. It is applicable, however, to those complaints filed on or after July 1, 1977. Md. Ann. Code art. 49B, §§ 11 (e) and (f). Inasmuch as the change was prospective only, it does not afford any relief to appellant, whose grievance arose before the General Assembly gave birth to chapter 937.

Dillon seeks to bottom a cause of action and the concomitant right to receive a monetary award on the basis of the 1974 act. He does so on two heterogeneous hypotheses. First, he advances an “implicit theory” grounded in Gutwein. Dillon argues that the Court of Appeals, in Gutwein, “implicitly recognized that the proper method of redress for monetary damages for employment discrimination was in the courts of law.” We do not share appellant’s reading of Gutwein. As we see it, Chief Judge Murphy, for the Court, was concerned in Gutwein with delineating the scope of relief that the Maryland Commission on Human Relations, under the former law, could grant claimants. The question of the court’s role in alleviating employment discrimination was simply not before the Court. Because the issue was not then viable, the Court did not, implicitly or explicitly, pass upon the subject. Md. Rule 885. Dillon’s tortuous efforts to create a tortuous cause of action from the vacuum of silence in Gutwein are without merit.

The second of Dillon’s hypotheses is less specious, but, nevertheless, equally short of establishing an action at law upon which to premise his case. Dillon asserts that “[i]t is beyond question that the violation of a statute is evidence of negligence and if that negligence is a proximate cause of [ajppellant’s loss ... [then] the [a]ppellees ... [are] liable for damages.” Dillon’s statement is not accurate, but even if it were, it is not applicable to the case at bar. What Dillon overlooks is that the statute itself, Md. Ann. Code art. 49B, sets out the only remedy for its violation.

We think Judge Wray correctly summarized the law with respect to the common law vis-á-vis the statute when he penned, “If the statute does not authorize a particular form of relief, and the common law recognizes no such cause of action, that form of relief is not available. See Herd & Co. vs. Krawill Machinery Corp., 359 U. S. 297 (1959).”

All statutes, such as Md. Ann. Code art. 49B, which are in derogation of the common law are to be construed strictly. MacBride v. Gulbro, 247 Md. 727, 729, 234 A. 2d 586, 588 (1967); Roberts v. Warden, 242 Md. 459, 460, 219 A. 2d 254, 255, cert. denied, 385 U. S. 876 (1966); Gleaton v. State, 235 Md. 271, 277, 201 A. 2d 353, 356 (1964); City of Baltimore v. Baltimore Gas & Electric Co., 232 Md. 123, 135, 192 A. 2d 87, 93 (1963); McKeon v. State ex rel. Conrad, 211 Md. 437, 443, 127 A. 2d 635, 638 (1956); Hooper v. City of Baltimore, 12 Md. 464, 475 (1859); Wright v. State, 24 Md. App. 309, 318, 330 A. 2d 482, 487, cert. denied, 274 Md. 733 (1975); State v. Gibson, 4 Md. App. 236, 247, 242 A. 2d 575, 582 (1968), aff’d, 254 Md. 399, 254 A. 2d 691 (1969); Md. Ann. Code art. 101, § 63; 3 Sutherland Statutory Construction § 61.01 (4th ed. 1974).

73 American Jurisprudence 2d Statutes § 288, states the rule to be:

“Under the rule of strict construction applied to statutes in derogation of the common law, it is not to be presumed that the legislature intended to abrogate or modify a rule of the common law on the subject any further than that which is expressly declared or clearly indicated, and the courts are inclined not to extend such statutes, by construction or implication, to situations or parties not fairly or clearly within their provisions, or any further than the language of the statute absolutely requires by express terms or necessary implication. The statute will not be construed to confer or enlarge any rights not clearly given.” (Emphasis supplied; footnotes omitted.)

There is nothing within Md. Ann. Code art. 49B to suggest even remotely that the construction placed upon the article should be different from that usually employed in interpreting similar statutes that are in derogation of the common law. Therefore, it is to be construed strictly.

As so construed Dillon’s sole means of redress, if any, was to complain to the Human Relations Commission, although, as we have seen, it was then without authority to assess any pecuniary damages in favor of Dillon and against the appellees. Whatever may be morally wrong with the appellees’ alleged approach to employment of the handicapped, until such time as the legislature sanctions an action separate and apart from the proceedings before the Maryland Human Relations Commission, the courts may not countenance such claims.

In view of our holding, we do not address the other questions raised by appellant as to the running of the statute of limitations and the exhaustion of administrative remedies.

Judgment affirmed.

Costs to be paid by appellant.

      . At the time of the declaration, then Md. Ann, Code art. 49B, § 19 was operative. The Act was amended by Laws 1978, ch. 684, effective July 1,1978, and former section 19 became current section 16.

      . Prom the title of a book by the same name, authored by Richard Powell in 1959.

      3. The employee is not otherwise identified.

      4. Mr. Travers’ capacity with A & P is not disclosed in the record.

      . See n. 1, supra.

      . The record does not disclose the nature or extent of the “physical disability.” The appellees’ brief, in a footnote, suggests that the disability is because of amputated fingers on one hand.

      . See also Page v. Carolina Coach Co., Civil No. H-77-942 (D. Md., September 8,1978, Harvey, J.) and Atkins v. Westinghouse Broadcasting Co., Inc., Superior Court of Baltimore City, No. 11385 (1977, Docket, Polio 403, Kaplan, J.).

      . This provision is currently codified as Md. Ann. Code art. 49B, § 16.

      . Atkins v. Westinghouse Broadcasting Co., Inc., supra.

      . The correct rule is that a violation of a statute or ordinance is evidence of negligence, and if that violation is the proximate cause of the injury, the violator is liable for damages.

      . See n. 1, supra.

      . The Commission now possesses such authority. See Laws 1977, ch. 937.