author: Sharer, J.

text:
    149 A.3d 762
    Baldeo TANEJA v. STATE of Maryland
    No. 1958,
    Sept. Term, 2014
    Court of Special Appeals of Maryland.
    Filed: November 30, 2016

      Timothy W. Davis, Baltimore, MD, for Appellant.
    Robert Taylor, Jr. (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee.
    Woodward, Graeff, J. Frederick Sharer (Retired, Specially Assigned), JJ.
   Opinion by

Sharer, J.

Preeta Gabba was shot three times at close range, resulting in her death, while walking in Germantown, Montgomery County, at about 7:45 on the morning of October 12, 2013. Her former husband, Baldeo Taneja, and his wife, Raminder Kaur, were charged in Gabba’s murder. They were tried together and convicted by a jury of first-degree premeditated murder, conspiracy to commit first-degree premeditated murder, and use of a handgun in the commission of a felony.

In his appeal, Taneja raises a single issue:

Whether the trial court violated Taneja’s due process right to present a defense by excluding several defense witnesses who were present in the court and ready to testify concerning the defense’s theory of the crime[.]

Finding no abuse of discretion in the court’s rulings, we shall affirm the judgments of the circuit court.

I. FACTS

The State’s theory of prosecution was that Taneja and Kaur conspired to kill Gabba, and that it was Kaur who fired the fatal shots. The State’s case was largely circumstantial and centered on motive and opportunity. The State produced evidence that the gun used to kill Gabba was found in the rear seat of Taneja and Kaur’s car 30 hours after the murder, and that Taneja had purchased the gun five weeks earlier. The defense argued lack of criminal agency and, more particularly, that others had motive to kill Gabba.

Viewing the evidence in the light most favorable to the State, the following was adduced at Taneja’s trial.

Gabba and Taneja were married in India in 2002, and continued to live there for several years. In 2006, Taneja moved to the United States; Gabba followed in 2009. They lived in the Germantown area, but not together. Two years later, Gabba and Taneja divorced, and soon afterward Taneja married Kaur and moved to Nashville, Tennessee. Gabba remained in the Germantown area and moved to a condominium on Crystal Rock Drive.

On the morning of Gabba’s murder, she was en route to her job, walking from her home to the bus stop, as she had done regularly for the preceding three years. Three eyewitnesses testified to the events at the murder scene.

Elena Komarova was driving her teenage son to his school in the 19700 block of Crystal Rock Drive, a residential area, when they heard several gunshots. Komarova slowed her car and saw two women ahead of her. One of the women, later identified as Gabba, started crossing the street in the middle of the block, while the other woman was close behind her. As Gabba fell into the street in front of Komarova’s car, the second woman ran away. Komarova and her son described the woman who ran away, in part, as wearing a bright orange scarf. They initially described both women as African-American, although, at trial, both were less positive about their race. Neither saw anyone else in the immediate area at the time.

A man living in an apartment about 100 yards from where the shooting occurred testified that he heard gunshots and looked out his window. He saw a woman, later identified as Gabba, lying on the ground, and ten feet away another woman, who exhibited a slight limp, was running away. The witness described the woman who was running away as in her late 40’s or early 50’s with “brownish” skin color and wearing a bright head scarf. Like the Komarovas, he initially told the police that the woman was African-American, but, at trial, was less positive of her race.

Suspicion quickly fell on Taneja and Kaur. Several hours after the murder, around 3:30 p.m., Montgomery County Police Department homicide detectives called Taneja’s cell phone, but it went directly to voice mail, as did several additional calls. Warrants were obtained for Taneja and Kaur, who were arrested in Tennessee around 2:00 p.m. the day following the murder, as they were driving away from their home. One of the detectives observed that Kaur walked with a limp.

The police searched the car and recovered a backpack containing a wig, black hair dye, a black hoodie, and a plastic bag. In the plastic bag was a .357 Ruger LCR revolver, which later testing and examination determined to be the murder weapon. The plastic bag also contained a holster for the .357 Ruger, and a 100 Ruger revolver. Inside Kaur’s purse the police found a note in her handwriting that read: “You calm down. We are now in Tennessee near my home.” A global positioning system device (GPS) was recovered from the front console of the car. Inside Taneja’s wallet was a piece of paper on which Kaur had written Gabba’s address.

A search of Taneja’s residence recovered documents with a note on top in Kaur’s handwriting that read, “Dragon story and other court documents.” The police also recovered a composition notebook with different handwriting that read, in part, “No brass, no evidence.”

A medical examiner testified that Gabba had been shot three times in the upper chest and abdomen. The bullets had entered from the left side and traveled toward the right; two of the bullets entered the front part of her body, one entered from the back. Although two of the wounds were “rapidly fatal,” the medical examiner testified that Gabba could have possibly walked several steps before falling.

Two firearm and tool mark identification experts testified that the three bullet specimens recovered from Gabba’s body were all fired from the .357 Ruger LCR revolver that was recovered from Taneja’s car. Taneja’s DNA was found on both guns seized from his car.

The State also presented evidence to support its theory of Taneja’s and Kaur’s motive to kill Gabba, including that, in 2009, when Gabba moved to the United States from India, Taneja and Gabba were experiencing marital discord. While Gabba lived in a condominium in Germantown with one of Taneja’s sons, Taneja and Kaur lived nearby and held themselves out as husband and wife.

In 2010, Gabba and Taneja began divorce proceedings, which became “very contentious” even though they had little property and no children together. The State introduced evidence that during the divorce proceedings, Taneja asked his son and Kaur to spy on Gabba, and that Taneja referred to Gabba as “Dragon Lady,” as did his son and Kaur, At one point during the divorce proceedings, Gabba, acceding to Taneja’s demand, left the family home. She later returned, pursuant to a court order, to find that Taneja had erected walls so she had access only from the entry door to her bedroom.

The State presented evidence that, although the divorce became final in July 2011, Taneja failed to honor their divorce agreements, and their interactions continued to be acrimonious. Indeed, at the time of Gabba’s murder, Taneja still had not transferred their property in India as required by the divorce settlement, despite several requests by Gabba.

Additional evidence was offered by the State relating to Taneja’s agreement, as part of the divorce settlement, to pay alimony in the amount of $2,400 each month for three years. Alimony was to terminate upon the death of either party. By February 2013, Taneja had fallen three months behind in his alimony obligation, prompting Gabba to send several demands for payment, via e-mail. Eventually, her attorney filed a contempt petition against Taneja who, in response, filed a counterclaim for $100,000. The contempt hearing was scheduled for October 10, 2013, two days before the murder, but several days before the hearing, their attorneys negotiated an agreement whereby Taneja agreed to pay the arrears within 90 days.

The State also presented evidence of Taneja’s and Kaur’s opportunity to kill Gabba.

About five weeks before Gabba’s murder, Taneja attended a day-long gun training class in Tennessee. The class included four hours of instruction and four hours of shooting range experience that would allow him to obtain a “handgun carry permit.” In his testimony, the instructor recalled that, at the first class, Taneja entered the classroom with a woman and sat in the last row. When the woman was asked to leave because she had not paid to attend the class, Taneja moved to the first row. The instructor particularly remembered Taneja because he took “a ton of’ notes. Among the instructor’s recommendations to the class participants was that they purchase a revolver rather than a semiautomatic, because the latter requires much more training for accuracy than a revolver. He further remembered telling the class that a semiautomatic “spits out” shell casings that can later be matched to the gun, but a revolver does not.

On September 28, 2013, two weeks before the murder, Taneja purchased two revolvers from a gun store in Tennessee: a .357 Ruger LCR, which was described as a snub-nosed revolver designed with a “concealed hammer” so it would not get hung up on clothing, and a 100 Ruger GP. Additionally, Taneja purchased a holster for the .357 and ammunition for both guns. Kaur was present in the store when Taneja purchased those items.

Around 7:00 p.m. on October 11, the night before the murder, Taneja and Kaur checked into the Red Roof Inn in Germantown, about eight miles from where Gabba was shot. From the GPS recovered from Taneja’s car, the police learned that at 9:58 a.m. the next morning—October 12—the GPS device traveled toward the District of Columbia.

The evidence disclosed that both Taneja and Kaur were involved in Amway distribution and sales, Taneja since the early 1990’s. On the weekend of October 11-13, 2013, Amway held a “Free Enterprise” weekend conference at the Washington Hilton, involving thousands of Amway members. The event started Friday night at 6:00 p.m. and lasted until Sunday at 3:45 p.m. Taneja’s Amway sponsor testified that Taneja was aware of the importance of attending the conference.

At 10:44 a.m. on the morning of the murder, Taneja purchased two tickets for the conference. About 30 minutes later, the GPS revealed a stop near the Washington Hilton, a distance of about 19 miles from the Red Roof Inn. At 11:37 a.m., Taneja and Kaur entered the conference, where they were seen by Taneja’s Amway sponsor and his wife shortly after they arrived. A short time later the sponsor texted Taneja, inviting him and Kaur to join their group for lunch. Taneja texted back that he could not make it because Kaur was not feeling well. The sponsor’s wife testified that Kaur had not appeared unwell when she had seen her earlier. From the GPS device, the police determined that Taneja and Kaur attended the three day event for less than an hour, leaving the D.C. area shortly after noon. Their car continued westward, stopping in Farragut, Tennessee around midnight. Their travel resumed the following morning around 9:30 and concluded at their home about noon.

After the State rested, Taneja called nine witnesses who testified as to his character trait for peacefulness.

Taneja also called several witnesses to support his theory that another person was the shooter. Specifically, he called: (1) Ms. Komarova to suggest that the woman who ran away did so out of fear of being shot; (2) two witnesses who testified that Taneja’s current annual income was $150,000 to $175,000, to suggest that he had no financial motive to commit the crime; (3) Taneja’s divorce attorney, who testified that Taneja was not displeased with the outcome of the divorce; (4) a gunshot residue expert to suggest that the woman near Gabba just before her death was not the shooter; and (5) a witness who testified that an indoor shooting range near the defendant’s home in Tennessee was open on Sunday, to suggest that Taneja and Kaur were on their way to the shooting range with their guns when they were arrested leaving their house.

II. DISCUSSION

Taneja argues that the trial court violated his right to present a defense when it excluded three witnesses, whom he had subpoenaed, were in court, and prepared to testify— Deepinder Singh, Dan Wright, and Utsav Taneja. Singh is Kaur’s son; Wright was Gabba’s attorney in a lawsuit against Singh; and Utsav is Taneja’s son.

Taneja argues that the witnesses’ testimony would have suggested that Singh shot and killed Gabba. He relies heavily on Kelly v. State, 392 Md. 511, 898 A.2d 419 (2006), to support his argument. The State responds that Kelly is distinguishable and that the trial court’s ruling to exclude the witnesses was not reversible error because the proffered testimony was inadmissible hearsay and irrelevant.

A. Law

The Supreme Court discussed the Compulsory Process Clause of the Sixth Amendment to the United States Constitution and its applicability to the State through the Fourteenth Amendment nearly 50 years ago in Washington v. Texas:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). In Maryland, the right of a criminal defendant to produce witnesses on his own behalf is guaranteed by the Sixth and Fourteenth Amendment of the U.S. Constitution and by Article 21 of the Maryland Declaration of Rights. Redditt v. State, 337 Md. 621, 634-35, 655 A.2d 390 (1995); McCray v. State, 305 Md. 126, 133, 501 A.2d 856 (1985).

Although the right of a defendant in a criminal trial to present witnesses in his defense is a critical right, it is not absolute. Taylor v. Illinois, 484 U.S. 400, 407-10, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). See also McCray, 305 Md. at 133-35, 501 A.2d 856. “[T]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory Process Clause provides him with an effective weapon, but it is a weapon that cannot be used irresponsibly.” Taylor, 484 U.S. at 410, 108 S.Ct. 646. The proffered evidence must be sufficiently relevant, rather than “cast[ing] a bare suspicion upon another.” Holmes v. South Carolina, 547 U.S. 319, 323-24, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting State v. Gregory, 198 S.C. 98, 16 S.E.2d 532, 534 (1941)). In Muhammad v. State, we noted that:

the right to present a defense, albeit fundamental, is nonetheless subject “to two paramount rules of evidence, embodied both in case law and in Maryland Rules 5-402 and 5-403. The first is that evidence that is not relevant to a material issue is inadmissible. The second is that, even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

177 Md.App. 188, 274, 934 A.2d 1059 (2007) (quoting Smith v. State, 371 Md. 496, 504, 810 A.2d 449 (2002)) (emphasis in Muhammad).

“Relevant evidence” is defined as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. “Relevance is a relational concept. Accordingly, an item of evidence can be relevant only when, through proper analysis and reasoning, it is related logically to a matter at issue in the case, i.e., one that is properly provable in the case.” Snyder v. State, 361 Md. 580, 591, 762 A.2d 125 (2000) (emphasis added). Relevant evidence is admissible, and “[e]vidence that is not relevant is not admissible.” Md. Rule 5-402. Even relevant evidence, however, may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Md. Rule 5-403.

A trial court is given wide latitude in controlling the admissibility of evidence. Sifrit v. State, 383 Md. 116, 128, 857 A.2d 88 (2004) (citing Merzbacher v. State, 346 Md. 391, 404, 697 A.2d 432 (1997)). We review the trial court’s decision under an abuse of discretion standard. Id. at 128-29, 857 A.2d 88 (citing Merzbacher, 346 Md. at 404-05, 697 A.2d 432). “Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law.” Cooley v. State, 385 Md. 165, 175, 867 A.2d 1065 (2005) (quoting Jenkins v. State, 375 Md. 284, 295-96, 825 A.2d 1008 (2003)). “If the trial court’s ruling is reasonable, even if we believe it could have gone the other way, we will not disturb the ruling on appeal.” Peterson v. State, 196 Md.App. 563, 585, 10 A.3d 838 (2010) (citing Fontaine v. State, 134 Md.App. 275, 288, 759 A.2d 1136 (2000)).

In accordance with the law on relevancy and admissibility, it follows that a defendant may be excluded from propounding evidence “if it merely cast[s] a bare suspicion upon another or raise[s] a conjectural inference as to the commission of the crime by another.” Holmes v. South Carolina, 547 U.S. at 323-24, 126 S.Ct. 1727 (internal quotation marks omitted) (quoting Gregory, 16 S.E.2d at 534). For instance, in Worthington v. State, 38 Md.App. 487, 381 A.2d 712 (1978), the defendant’s counsel sought to cross-examine the victim to introduce evidence of the victim’s gambling debts, under the theory that the defendant was not the only individual who had a motive to assault the victim. Id. at 495-97, 381 A.2d 712. The trial court sustained the State’s objection because there was no other evidence submitted by the defense to support such a theory. Id. at 496-97, 381 A.2d 712. We affirmed the trial court’s decision, acknowledging that animosity of others toward the victim could raise an inference that those others and not the defendant shot the victim, but “that such a connection is, in the absence of real evidence pointing toward [defendant’s] theory, totally speculative and tenuous.” Id. at 498, 381 A.2d 712 (emphasis added). Cf. Marshall v. State, 174 Md.App. 572, 580-81, 923 A.2d 143 (2007) (while defense counsel was able to present evidence that two other suspects with possible motive and opportunity were developed by police, trial court did not err in excluding documentary evidence supporting theory because both suspects had alibis and theory was too speculative and tenuous) and Malik v. State, 152 Md.App. 305, 323-25, 831 A.2d 1101 (2003) (trial court did not err in excluding evidence of prior murder and assault convictions of one of alleged victims to support theory that he and not the defendant was the gunman, as any potential relevance was outweighed by danger of unfair prejudice and misleading jury).

On that foundation, we now turn to the specific facts related to Taneja’s argument which, because those facts present great nuances, we relate in some detail.

B. Trial

After Taneja presented several character witnesses, as well as witnesses supporting his theory that someone else could have committed the crime, Taneja informed the court that he wished to call Kaur’s son, Deepinder Singh, who was subpoenaed and present. Defense counsel stated that he intended to suggest that it was Singh who shot Gabba. Counsel further proffered that he wanted to question Singh about a replevin lawsuit he filed against Gabba in 2010, in which Singh alleged that Gabba lost or destroyed personal items he had stored in her home while deployed to Kuwait. The replevin court granted Gabba’s motion for summary judgment in March 2011.

The court questioned whether defense counsel had a good faith basis for believing that Singh had committed the murder. Counsel, somewhat obliquely, responded that he also wished to call Dan Wright, Gabba’s attorney in the replevin lawsuit, and Utsav Taneja, Taneja’s son from his first marriage. Counsel then proffered that Utsav would testify to a conversation with Singh after his unsuccessful lawsuit against Gabba in which:

Deepinder Singh told [Utsav] somebody ought to kill that B. Now, we’re ask[ing], we’re saying it in terms of a motion in limine. There obviously would be an objection to that, so we’re asking Your Honor to rule on that substantively but it also has the purpose of answering Your Honor’s question as to a good faith basis.
So now, I needed to get permission to tell you that, all right. And now I’ve gotten it. So, that is the extent of my proffer at this point. And I think I’ve said, he was in the military. Was at Germantown at 2:30. He lives there. He lost the lawsuit. He filed it, hired an attorney to pursue it and he lost it. He was upset about it, and he made that statement to Utsav.

Defense counsel added that Singh would also testify that he had a familiarity with guns and, on the morning of the murder, he had brunch at a restaurant near the Red Roof Inn. Counsel then stated: “I don’t even need to be doing what I’m doing right now ... [because of Kelly v. State, 392 Md. 511, 898 A.2d 419 (2006) ] ... [b]ut [ ] we’re talking about the assertion of the Fifth[.]” He continued:

All three of these issues are intertwined. [Kelly], is it a good faith basis, and can he do it in front of the jury if he’s going to do it. And you know this involves as we’ve already said the constitutional due process right to put on evidence and the Sixth Amendment.

Defense counsel then conducted a voir dire of Singh, under oath, informing Singh that he may call him as a witness and he may ask him questions about: where he was on the night before the murder, at the time of the murder, and on the afternoon after the murder; the lawsuit he filed against Gabba; a conversation he had with Utsav about how he felt about Gabba after the lawsuit; and his familiarity with handguns. Singh stated that he was willing to answer those questions, but when asked by Kaur’s attorney whether he would answer questions if it implicated him in the murder of Gabba, Singh said he would not.

The discussion of Singh’s invocation of his Fifth Amendment right continued. The State advised the court that Singh would not be granted immunity from prosecution, but that he would not be prosecuted because, in the State’s view, “I think he might have been told about the crime afterwards, but I don’t think he did anything criminal here.” Defense counsel then requested that Singh be allowed to speak to a lawyer, and reiterated that he wanted to call Wright about what he observed in the lawsuit between Singh and Gabba. In response, the court questioned Singh further, who eventually told the court that he had not “done anything.”

At this point, the court ruled that Singh could not invoke his Fifth Amendment privilege because he lacked a good faith basis to believe that he would be prosecuted. The court then stated:

So then given that, the question then becomes whether [defense counsel] now can call him as a witness to say, I filed suit against her in 2010, which was resolved in 2011. [Defense counsel] proffers that he then made this comment in I guess the late summer or fall of 2011 saying “the bitch should die.” Was he present, had the ability to do it, and so what’s the State’s position with that, with respect to that given that he’s here and able to respond to those in effect accusations?

In response, citing the rules of evidence, both the State and Kaur’s attorney objected to the defense calling Singh to attempt to implicate him in the murder. They argued that Singh’s testimony was inadmissible because it was irrelevant and it would confuse and mislead the jury. Defense counsel then made a second proffer that Singh, who held Taneja’s power of attorney, sold Taneja’s Germantown home without telling him. The court responded that this additional proffer was not relevant and asked counsel whether the right to present a defense superseded the rules of evidence; counsel said that it did. The court then ruled as follows on whether defense counsel could implicate Singh in the murder:

[T]he whole issue appears to me is one of whether or not the evidence that you seek to elicit from this particular witness which in turn I think drives the consideration of the other witnesses, whether the evidence that you seek to present from Mr. Singh is deemed to be relevant evidence.
And the proffered evidence in this case, as I understand it, and I think the record clearly reflects that what you seek to do is to put before the jury Mr. Singh and establish that he had motive. That he had this grudge against Preeta Gabba which went back to 2010, 2011 as evidenced by this lawsuit. Perhaps to predate that, but as evidenced by the lawsuit of 2010 which was resolved in March of 2011.
And it’s further evidenced by statements that Utsav would testify that the witness had made to him subsequent thereto in mid-2011 to late-2011 where he said, somebody should kill the bitch and at the same time there was some discussion about his background and experience, which included the fact that he was in the reserves. Has some experience with guns.
And that from this witness, that really is the limits of the evidence. I mean, the proffer seems to be that you want to create for the jury, then, the possibility that somebody else could have done this. Not your client. And so then the issue becomes whether or not the evidence proffered is relevant to prove that proposition or has a tendency to make that proposition more true or more probable.

After citing the rules on relevancy, materiality, and probative value, the court continued:

Is there anything from which the jury could logically infer from this testimony that he might possibly be the person who committed this? And there’s absolutely nothing that you proffered that puts him anywhere near that gun or in touch with that gun, or conceivably explains how he possibly could have come in possession of [that] which is uncontro-vertedly the murder weapon in this case.
So, the only other evidence is that he lives in the area and that he had brunch some time on the date of the shooting. But we know the shooting occurred at approximately 7:00 something in the morning, close to 8:00 in the morning.
So, I think the question is one of, it’s addressed before we get an issue of the Court’s discretion. I am very mindful that this is a murder case. I’m very mindful of the defendant’s right to put on a defense. But I don’t believe that that right supersedes the require[ment that] the evidence be somehow relevant.
And when I look at all of the facts in this case, it’s inconceivable to me from the facts that you’ve proffered that this witness would testify that any jury could reasonably infer from that particular evidence that any fact that would tend to make more probative the defense in this case, that your client was not directly involved in the shooting or that your client was only an accessory after the fact.
So for all of ... those reasons, I therefore don’t believe that the evidence is relevant evidence, and will preclude you from calling him in front of the jury. And for the same reason, preclude you from calling the other two witnesses to the extent their testimony relates to testimony that his motive to want to shoot Preeta.

Defense counsel reiterated that pursuant to Kelly, he wanted to call Singh, Utsav, and Wright, even though he acknowledged that the State would object. The court responded that:

in [Kelly ] the defense called zero witnesses, which was one of Judge Cathell’s problems, and in [Kelly ] I basically anticipated the State’s objection. So I asked [the defense counsel], anticipating the objection, what the evidence would be and as the dissent pointed out, everybody agreed that the evidence was inadmissible. But that [sic ] Judge Cathell said well, the State might have changed their mind or might not have objected.
In this case, the State has told me they object. ... and [Kaur’s attorney] objects as well. ... So I don’t think [Kelly ] applies to those facts.

Defense counsel then called Utsav, who testified, inter alia, about his familial relationships and Taneja’s character trait for peacefulness.

After Utsav’s testimony, defense counsel made a third proffer that, during a conversation between Utsav, Singh, and Taneja, in late 2011 or early 2012, Singh said that he was going to a shooting range and that Taneja should also buy a gun to go to a shooting range. The court ruled that because defense counsel’s additional proffer was vague as to the time period and whether it resulted in Taneja purchasing the murder weapon, “it would not affect my evaluation of the issue of relevancy, and the exercising of my discretion I still would find it not to be relevant.” Defense counsel asked if he could put those witnesses on the stand outside the presence of the jury, although he admitted that he had let Wright leave the courthouse. The court responded:

Okay, well then what that means is then, we’re going to have to put Mr. Wright on at some point but we don’t have to put it in front of the jury because there’s no agreement on what the facts are for purposes of the Court making a decision on the feel [sic]. So you can both call him at some point. I don’t know exactly when. Maybe when the jury is deliberating we can put it on, and then you can flesh out the proffer, okay.

It is noteworthy that, although the court was agreeable to hearing Wright’s testimony outside the presence of the jury, Taneja never mentioned it again, nor did any of the parties. Singh and Wright did not testify for the defense.

Taneja argues on appeal that the trial court’s ruling “gutted” his defense. We are not persuaded, and explain.

Taneja proposed to question Singh about: the replevin lawsuit he brought against Gabba in 2010, a statement he made about her around that time that “someone should kill that b[itch]”; living in the area where Gabba was murdered; being familiar with weapons; selling Taneja’s Germantown home after he was given power of attorney following Taneja’s arrest; and a statement he made to Taneja in late 2011 or early 2012 that Taneja should go to a shooting range.

We agree that such evidence would have been, at best, only tangentially relevant and had a high probability of confusing, distracting, and misleading the jury. We are mindful that evidentiary questions are left to the sound discretion of the trial court, and are not to be disturbed—even if we were inclined to rule differently—absent a clear abuse of discretion. In sum, the evidence Taneja sought to introduce through Singh was disconnected and remote. It had no other effect than to raise the barest of suspicion that Singh might have killed Gabba. Cf. State v. Mitchell, 4 A.3d 478, 484-88 (Me.2010) (defendant not denied his right to present a defense where trial court excluded alternative suspect evidence); Commonwealth v. Buckman, 461 Mass. 24, 957 N.E.2d 1089, 1096-98 (2011) (tension between neighbor and victim not sufficient to permit introduction of alternative suspect evidence). See also David McCord, But Perry Mason Made it Look so Easy!: The Admissibility of Evidence Offered by a Criminal Defendant to Suggest that Someone Else is Guilty, 63 Tenn. L. Rev. 917, 938-47 (1996).

For the same reasons, we likewise find Wright’s and Utsav’s proffered testimony to have been lacking in relevance and more likely to be misleading, confusing, and distracting than relevant and probative.

C. Kelly v. State

Taneja relies heavily on Kelly v. State, 392 Md. 511, 898 A.2d 419 (2006), to support his “alternative suspect” argument. Kelly asked the Court of Appeals to decide:

[wjhether the right to present a defense is violated when the court, without justification, and as a predicate to permitting an available witness to take the stand, requires the defense to proffer, in the State’s presence, the content and theory of admissibility of the witness’s testimony?

Id. at 517, 898 A.2d 419, Under the facts presented, the Court answered the question in the affirmative and reversed Kelly’s convictions.

In Kelly, the State presented evidence that three friends engaged in an angry verbal exchange with Francesco Kelly while riding a public bus in Silver Spring, after which the three friends left the bus and walked into a nearby 7-Eleven. A short time later, while they stood waiting for the next bus, a man appeared with a gun and shot at them. Two of the victims, Nicholas Watson and Melissa Wainwright, identified Kelly as the shooter. Id. at 517-19, 898 A.2d 419.

After the State rested, Kelly’s attorney informed the court that she intended to call two police officers. One had been subpoenaed and was present, but the other was neither subpoenaed nor present. Id. at 519, 898 A.2d 419. The State initially objected because the defense had not included one of the witnesses on the witness list presented to the jury. In response to the court’s query as to what she intended to elicit from the subpoenaed witness, defense counsel replied that she wanted to elicit testimony that the police had other information about the shooting that they failed to pursue. Id. at 520-21, 898 A.2d 419. The court indicated its opinion that the testimony would be hearsay, but granted a brief recess to enable defense counsel to locate the one witness who was in the courthouse.

When the trial was reconvened, defense counsel informed the court that the officer was present and ready to testify. The State requested a proffer of the officer’s testimony, and the court asked counsel what the officer was going to testify to. Id. at 522, 898 A.2d 419. Initially defense counsel stated that she did not know what the officer would say, only that she wished to elicit two pieces of evidence from the officer: (1) the bus schedule, which would impeach the victims’ testimony as to how long they were waiting for the bus; and (2) that the bus driver had no recollection of the altercation on the bus. Id. at 522-23, 898 A.2d 419. The court reiterated its opinion that the proffered evidence was inadmissible hearsay. Id. at 524, 898 A.2d 419. When the State questioned what defense counsel could ask of the witness that would not be inadmissible hearsay, defense counsel responded: “I don’t get to ask them that in their case, and I think that I can ask it without eliciting hearsay.” Id. at 525, 898 A.2d 419.

Defense counsel next stated that she also wanted to ask the officer about a bus surveillance videotape. The court, however, opined that the tape was irrelevant because it was inoperable. Id. at 526, 898 A.2d 419. When defense counsel again asked if she could elicit the bus schedule from the officer to show that the police might have interviewed the wrong bus driver, the court denied the request, stating that the officer did not have personal knowledge of the schedule. Believing that the officer would not give any admissible testimony, the court dismissed the officer and adjourned for the day. Id. at 526-27, 898 A.2d 419.

When the court asked the following day if there were any other unresolved issues, defense counsel stated she wished to call a civilian witness. The court asked for a proffer of that witness’s testimony, and defense counsel objected to having “to proffer what witnesses are going to testify to. I mean, [the State] can make objections just like I have to.” Id. at 527, 898 A.2d 419 (emphasis omitted). Nonetheless, defense counsel said that she wanted to call the witness to testify as to Watson’s habit of loitering around the bus stop and his reputation for violence in the community, to suggest that the shooter had been someone other than Kelly. Id. at 528, 898 A.2d 419. The State objected, arguing that the testimony was relevant only to a collateral issue and, further, that the proposed witness did not have personal knowledge. The Court of Appeals resolved that the State objected only because the trial court required defense counsel to make its proffer. Id. at 528, 898 A.2d 419.

The discussion of the matter continued, defense counsel stating that the testimony was relevant and the court concluding it was too speculative for a jury to infer that others might have wanted to kill Watson, and would have come to the 7-Eleven to shoot him at that precise time. Id. at 528-30, 898 A.2d 419. The court ultimately ruled that it would not permit defense counsel to call the civilian witness. When the court then asked if the defense rested, defense counsel stated, “I guess so, since I am not allowed to call any witnesses.” Id. at 530, 898 A.2d 419 (emphasis omitted).

The Court of Appeals began its analysis of Kelly’s assertions by announcing that it would review the trial court’s “decision not to allow the witnesses to testify under the abuse of discretion standard applicable to exclusion of evidence in general.” Id. at 532, 898 A.2d 419. The Court discussed the law on compulsory process, recognizing that while it is a fundamental right, it does not confer the right to present inadmissible evidence. Id. at 532-37, 898 A.2d 419.

The Court then reasoned that the trial court’s refusal to place the witnesses on the stand was premature, stating:

[T]he petitioner made the required showing to, at the very least, permit him to question the witnesses. Petitioner’s counsel proffered that Officer Patel would testify to the conduct of the investigation questioning the events related by the three victims. [The civilian witness] was to impeach Watson’s testimony, which would go to his credibility as a witness. This testimony presumably could have been favorable to the petitioner. Watson was one of two witnesses who could identify the petitioner as the shooter.

Id. at 538, 898 A.2d 419.

The Court noted that the State did not object to two of the three witnesses, and believed that the State objected only to the civilian witness testifying when prompted by the court’s calling for the proffer. Id. at 528, 898 A.2d 419. The Court stated that “the trial judge should have allowed the witnesses to testify and rule on the admissibility of their testimony, if proper objections were made, during questioning by the defense, not before.” Id. at 539, 898 A.2d 419. The main concern was that, rather than allowing the State to make or waive its pertinent objections in the normal course of examination, “the court sua, sponte opted to require the petitioner’s counsel to proffer the questions she was going to ask. It then decided that, because such questions would only elicit hearsay testimony, the witnesses would not be allowed to testify.” Id. at 540, 898 A.2d 419. In doing so, in the Court’s view, the trial court impermissibly became an advocate for the State:

When the trial court makes a ruling as to the admissibility of evidence on its own without a prior objection by any of the parties, the court leaves its role as an arbiter and assumes another role as a party to the proceeding, placing into question the defendant’s right to a fair trial.

Id. at 541, 898 A.2d 419. This danger is especially magnified where there is a lopsided requirement of a pre-examination proffer as to all of the defendant’s witnesses but not to any of the State’s witnesses. Id.

The Court concluded:

When the court assumes the role of a party by ruling on the admissibility of evidence in the absence of appropriate objections, the court departs from the adversarial nature of our system where the State, not the court, bears the burden of objecting to the testimony offered by the opposing party. Should the State fail to object, otherwise inadmissible evidence sometimes may be admitted to the detriment of its case because .., such a failure to object is considered a waiver. This is not to say that the defendant will be allowed to present properly objected to testimony that violates the rules of evidence or procedure. It merely requires that exclusion take place at the appropriate time and in the appropriate manner. The responsibility of the trial court to control the proceedings before it does not extend to the right to take over a party’s case. When that occurs, as it occurred here, the court risks denying to a defendant the fair trial guaranteed to him by both the United States Constitution and Maryland’s Constitution.
We agree with the Court of Special Appeals that “[t]he conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge.” Kelly, 162 Md.App. at 141, 873 A.2d at 446. That control, however, must safeguard the defendant’s constitutional rights.

Id. at 542-43, 898 A.2d 419 (internal string citations and parentheticals omitted). Because the court denied Kelly the right to present a defense by not allowing any of his witnesses to testify, he was granted a new trial. Id. at 543, 898 A.2d 419.

While Kelly is similar to the case before us, we are ultimately persuaded that it is distinguishable. In Kelly, the trial court required defense counsel to proffer the testimony of its only witnesses. Here, Taneja’s proffer of the testimony of Singh and the other two witnesses was generated by a Fifth Amendment concern as to Singh. But for that concern, no proffer would have been called for. This is not, as the Court found in Kelly, a situation where the trial court abandoned its role as a neutral arbiter and required counsel to proffer its defense. Rather, the court focused its analysis on the relevance of the witnesses’ proffered testimony, and not its admissibility under other rules of evidence. Throughout the discussion of Singh’s potential testimony, the court noted variously:

[T]he whole issue appears to me is one of whether or not the evidence that you seek to elicit ... from Mr. Singh is deemed to be relevant evidence.
* * *
And so then the issue becomes whether or not the evidence proffered is relevant to prove that proposition or has a tendency to make that proposition more true or more probable.
* ⅜ *
Is there anything from which the jury could logically infer from this testimony that he might possibly be the person who committed this?
* * *
I'm very mindful of the defendant’s right to put on a defense. But I don’t believe that that right supersedes the requiretment that] the evidence be somehow relevant.
* * *
So for all of ... those reasons, I therefore don’t believe that the evidence is relevant evidence, and will preclude you from calling him in front of the jury.

Moreover, as was Kelly, Taneja was not denied the only witnesses available to him; Taneja was able to present a defense by vigorous cross-examination of the State’s witnesses and by calling several defense witnesses. Further, again unlike Kelly, the State and Taneja’s co-defendant, Kaur, objected to the calling of the three witnesses. It is noteworthy that Kaur strenuously objected—understandably, given that it was her son whom Taneja wanted to implicate in the murder of Gabba. We cannot conclude that both the State and Kaur’s attorney would have failed to make a timely objection had the witnesses been called to the stand.

We also find Void v. State, 325 Md. 386, 601 A.2d 124 (1992), to be instructive, but nonetheless distinguishable. Void was charged with several crimes related to the kidnaping and robbery of Officer Steedley, the victim and the State’s essential witness. The State’s case rested substantially on Steedley’s credibility. Id. at 387, 601 A.2d 124.

Prior to Void’s trial, Steedley had been charged and tried on, but acquitted of, perjury charges related to the prosecution of unrelated drug offenses. Void subpoenaed three Prince George’s County Police Department officers who had testified against Steedley at the perjury trial, wishing to call them to testify as to Steedley’s character for truth and veracity. Id. at 388, 601 A.2d 124. Special counsel for the police department filed a pre-trial motion to quash the subpoenas, arguing that: the officers had no knowledge of the arrest of Void; that the defense would attempt to elicit the prior perjury charge; and requiring the officers to be in court would place a great burden upon the department. The trial court agreed and quashed the subpoenas. Id. at 388-89, 601 A.2d 124.

On appeal, we affirmed the trial court’s ruling, holding that the officers’ testimony would not have been admissible. The Court of Appeals reversed, reasoning:

We believe that a fair conclusion can be drawn from the proceedings at the hearing on the motion that the testimony Void sought was directed to the character of Steedley. We are not in accord with the State’s notion that Void was merely attempting to introduce evidence of prior bad acts by Steedley under the guise of character evidence. It may be that defense counsel’s argument could have been articulated in more specific terms. And perhaps some of the reasons he gave for desiring the witnesses’ testimony, and which the judge declared he would not permit, may not have been admissible. But that did not justify precluding Void’s examination of the witnesses. The proper time for the judge to determine the admissibility of their testimony was upon their examination.

Id. at 392, 601 A.2d 124. The Court continued:

Here, however, the trial judge did not have a sufficient basis for the exercise of sound discretion. He refused to hear from the subpoenaed witnesses. Their affidavits were of no help; the averment that the witnesses had no knowledge of the facts and circumstances of the investigation, arrest or prosecution of Void was of no consequence. Their lack of such knowledge was neither relevant nor material to a determination of the credibility of Steedley. The bare statement that any personal knowledge of the subpoenaed witnesses that might be used to discredit any witness came to the subpoenaed witnesses in a confidential investigation, did not suffice to justify a refusal to permit Void to examine his witnesses. The judge could winnow out on hearing their testimony what was inadmissible as legitimately protected. We do not perceive how he could properly determine, on what was before him, that none of their testimony relating to the credibility of Steedley was admissible without affording Void an opportunity to examine them under oath.

Id. at 393-94, 601 A.2d 124. Reversing, the Court stated:

The short of it is that the trial judge should have heard from the subpoenaed witnesses, either at a pretrial hearing or at the trial out of the presence of the jury. He could, at that time, determine whether the witnesses had admissible testimony to offer. He erred in short-circuiting the common law and statutory rights of Void by quashing the subpoenas.

Id. at 394, 601 A.2d 124 (internal citation omitted).

The present case is likewise distinguishable from Void. The court in Void had little information before it when it ruled. Here, the exchange between the parties and the court about the facts and the law relating to the proposed testimony was expansive, in contrast with the essentially sua sponte rulings in both Kelly and Void. In fact, that discussion consumed more than 50 pages of trial transcript. Indeed, the Court in Kelly observed that the trial court’s rulings were “premature.” Kelly, 392 Md. at 538, 539, 898 A.2d 419. In contrast, here the court granted considerable breadth to the discussion; defense counsel was permitted to proffer in detail what he wanted to ask Singh should he be called and how Singh would respond. Taking the witnesses’ testimony outside of the presence of the jury would have been appropriate, indeed perhaps preferable, but in light of the circumstances presented and our standard of review, we find no abuse of discretion.

III. CONCLUSION

In sum, we can find no reason to conclude that the court’s rulings were arbitrary, capricious, or beyond the letter of reason of the law. Thus, we are persuaded that the trial court did not abuse its discretion in not permitting Taneja to call Singh, Wright, and Utsav to testify as to an “alternative suspect” possibility. We affirm the judgments of the trial court.

JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS ASSESSED TO APPELLANT.

      . Following a post-trial motions hearing, Kaur was granted a new trial.

      . To avoid confusion, we shall refer to Utsav Taneja by his first name.

      . The convictions had been affirmed by this Court, Kelly v. State, 162 Md.App. 122, 873 A.2d 434 (2005).

      . We note that the court specifically stated that it was amenable to taking Wright’s testimony out of the presence of the jury later during the trial. By not again raising the question, Taneja has waived it as to Wright. Cf. Gilliam v. State, 331 Md. 651, 691, 629 A.2d 685 (1993) ("As Gilliam did not object to the course of action proposed by the prosecution and taken by the court, and apparently indicated his agreement with it, he cannot now be heard to complain that the court's action was wrong.”)


source: Caselaw Access Project

author: Krauser, C.J.

license: Public Domain

text:
    149 A.3d 778
    SCHNEIDER ELECTRIC BUILDINGS CRITICAL SYSTEMS, INC. v. WESTERN SURETY COMPANY
    No. 20,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    November 30, 2016

      Mark S. Dachille (Nicole L. Campbell, Huddles, Jones, Sorteberg & Dachille, PC, on the brief) Columbia, MD, for Appellant.
    Patrick J. Madigan (Patrick M. Pike, Pike & Gilliss, LLC, on the brief) Timonium, MD, for Appellee.
    Krauser, C. J., Berger, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.
   Krauser, C.J.

The issue before us is whether Western Surety Company, the appellee, is bound by the mandatory arbitration clause of an agreement between Schneider Electric Buildings Critical Systems, Inc., the appellant, and National Control Services, Inc. (“NCS”), as that agreement was later incorporated by reference into a subcontract between Schneider Electric and NCS, which was thereafter incorporated by reference into a performance bond issued by Western Surety on behalf of NCS for work it was to perform for Schneider Electric.

The aforementioned agreement between Schneider Electric and NCS, containing the arbitration clause at issue, in this appeal, was entitled the “Master Subcontract Agreement.” Its purpose was to enable Schneider Electric, “from time to time,” to “engage the services of [NCS] to provide labor, material, equipment and services ... in connection with construction projects,” and its terms were to cover all future subcontracts between them. Of particular relevance to the issue before us, the Master Subcontract Agreement provided that any disputes that might arise between those two corporate entities, which could not be resolved by “good faith negotiations,” must be submitted to arbitration.

One year later, Schneider Electric was retained to assist in the building of a facility at Aberdeen Proving Ground, whereupon it entered into a subcontract agreement with NCS, in accordance with the parties’ Master Subcontract Agreement, providing that NCS was to perform certain work at the construction site of that facility. The subcontract required NCS to furnish a performance bond, which it did. The issuer of that bond was Western Surety. And, significantly, the bond incorporated by reference the subcontract between Schneider Electric and NCS, which had incorporated by reference the Master Subcontract Agreement between those two parties, with its mandatory arbitration clause.

When NCS thereafter declined to perform the construction required by the subcontract, as a result of a payment dispute, Schneider Electric filed, as provided by the parties’ Master Subcontract Agreement, a demand for arbitration. Although that demand, initially, named only NCS as a respondent, it was subsequently amended to include Western Surety, as a corespondent, on the grounds that the performance bond, issued by Western Surety, incorporated by reference the subcontract, which, in turn, had incorporated by reference the Master Subcontract Agreement, with its mandatory arbitration clause, and thereby purportedly bound Western Surety to that clause.

In response to its belated inclusion into Schneider Electric’s demand for arbitration, Western Surety filed a petition, in the Circuit Court for Howard County, to stay that arbitration and for a declaratory judgment, avowing, among other things, that it was not a party to Schneider Electric’s and NCS’ agreement to arbitrate their disputes and therefore could not be compelled to participate in the arbitration proceeding pending between them; it asserted, moreover, that Schneider Electric had breached the performance bond and that that breach had relieved Western Surety of any liability under that instrument. Then, following the transfer of this dispute from Howard County to Harford County, the Circuit Court for Harford County granted partial summary judgment in favor of Western Surety, concluding that, under either federal or state law, Western Surety was not subject to the arbitration provision of the incorporated Master Subcontract Agreement and therefore could not be compelled to participate in the pending arbitration proceeding between Schneider Electric and NCS.

In so ruling, the Harford County circuit court cited three grounds for its decision: first, the words of the performance bond evinced an intent by Western Surety to guarantee the performance of all construction work to be performed by NCS, but not all contractual obligations undertaken by NCS, pursuant to the subcontract; second, the arbitration clause of the Master Subcontract Agreement, even if ultimately incorporated by reference into the performance bond, mandated arbitration only as to disputes between Schneider Electric and NCS; and, third, to rule otherwise, would, in effect, read out of the performance bond language expressly providing for a judicial resolution of any dispute, involving the bond, that might arise.

Schneider Electric then noted this appeal, contending that the Harford County circuit court’s ruling was in error for two reasons: first, by agreeing, in the performance bond, to “jointly and severally” bind themselves to the performance of the subcontract between Schneider Electric and NCS, both Western Surety and NCS were thereby bound to comply with the arbitration clause incorporated by reference into that subcontract; and, second, because the performance bond incorporated by reference that subcontract, Western Surety was rendered subject to the arbitration clause. Finding no merit to either claim of error, we shall affirm the judgment of the circuit court.

I

In May 2009, Schneider Electric and NCS entered into a “Master Subcontract Agreement,” in which the parties agreed, as noted, that NCS would “provide labor, material, equipment and services necessary to perform work in connection with construction projects, from time to time[.]” The Master Subcontract Agreement set forth, among other things, the terms and conditions that would apply to all future subcontracts between the two companies. It also included a provision, which is the crux of this appeal, that any dispute between them would be subject to arbitration, if they were unable to negotiate a resolution of that dispute.

Several months later, on August 14, 2009, Clark Construction Group, LLC, which is not a party to this matter, entered into a contract with the United States Army Corps of Engineers to build a replacement facility for medical research at Aberdeen Proving Ground in Harford County, Maryland. The following October, Clark Construction, now the general contractor for that construction project, contractually retained the services of Schneider Electric to assist in the construction of that facility.

Seven months after Schneider Electric was engaged, by Clark Construction, as a subcontractor for the construction project, Schneider Electric, pursuant to its Master Subcontract Agreement with NCS, entered into a subcontract with NCS, to perform work for that project. The subcontract incorporated by reference the Master Subcontract Agreement, which contained the arbitration clause at issue.

Specifically, the subcontract provided that NCS would perform “electrical and pneumatic installation” work at the Aberdeen facility. For that work, NCS was to be paid $2,050,000, “in installments as the Work progresses.”

The subcontract also required NCS to furnish a performance bond, designating Schneider Electric as the obligee, for 100 per cent of the “Subcontract value,” that is, $2,050,000. NCS subsequently obtained that bond from Western Surety. The performance bond, issued by Western Surety, at NCS’ request, was an American Institute of Architects (“AIA”) form A312 and bound Western Surety and NCS to Schneider Electric “for the performance of the Construction Contract,” which was incorporated by reference into the performance bond. The term “Construction Contract,” as defined by the performance bond, included the subcontract, between Schneider Electric and NCS, and thereby the Master Subcontract Agreement between those two entities, with its mandatory arbitration clause, which had been incorporated by reference into the subcontract.

The subcontract specified that NCS’ work would begin on May 25, 2010 and conclude by May 31, 2013. As the work progressed, numerous change orders eventually increased the amount to be paid NCS, by Schneider Electric, from $2,050,000 to $2,309,883, and extended the date that NCS was to complete its work from May 31, 2013 to February 28, 2014.

In the summer of 2013, a dispute arose between Schneider Electric and NCS concerning payment for work NCS had purportedly performed. NCS claimed it was owed approximately $410,000, by Schneider Electric, for various progress payments, claims, and change orders. When Schneider Electric rejected NCS’ demand for payment, the parties attempted, as required by their Master Subcontract Agreement, which had been incorporated by reference into their subcontract, to resolve their dispute “through good faith negotiations and settlement.” When those efforts proved unavailing, NCS, on August 30, 2013, abandoned the job site, notwithstanding a provision in the Master Subcontract Agreement requiring it to “continue to diligently perform the Work and maintain the progress schedule (without waiving its claims) despite the pendency of any dispute or any arbitration or litigation proceeding!;.]”

Upon learning of NCS’ cessation of work, Schneider Electric promptly sent an initial notice of default to both NCS and Western Surety, advising them of what Schneider Electric believed to be a breach of contract by NCS. After two months had passed and NCS had still not resumed its work at the job site, Schneider Electric, on October 25, 2013, sent a final notice of default to both NCS and Western Surety, declaring that Schneider Electric intended to “terminate for cause” the subcontract between it and NCS, that Schneider Electric would “proceed to complete NCS’ work in an expeditious manner using manpower supplied by other electrical subcontractors,” and that NCS and Western Surety would “remain liable for all costs and expenses incurred” by Schneider Electric to complete NCS’ work. Schneider Electric then, on November 12, 2013, notified both NCS and Western Surety that the NCS subcontract had “been terminated for cause pursuant to Section 18.3” of the Master Subcontract Agreement, which permitted it to do so if NCS abandoned the work it was contractually required to perform.

Because NCS, as of August 30, 2013 (the date it left the job site), had performed only 70 per cent of the work required under the subcontract, Schneider Electric hired other electrical subcontractors to complete the remaining work. It, ultimately, paid those subcontractors approximately $2,000,000 to fulfil NCS’ contractual obligations, which further fueled the dispute between the parties, as that amount substantially exceeded the amount that NCS was to be paid upon the completion of the work it had not yet performed, when it ceased any further activity at the construction site. In fact, according to Schneider Electric, NCS’ breach of the subcontract had caused it to suffer nearly $1,500,000 in damages, which was the difference between the approximately $2,000,000 it paid others to complete the work NCS was to perform under the subcontract and the approximately $500,000 NCS was to be paid had it fulfilled its contractual obligations.

In February 2014, Schneider Electric filed a demand for arbitration, with the American Arbitration Association, naming NCS as the sole respondent and claiming damages in the amount of $1,473,100 as well as attorneys’ fees, interest, and costs. Then, two months later, it amended that demand, to include Western Surety as a co-respondent.

Finding, itself, now a party to the arbitration demanded by Schneider Electric, Western Surety filed, in response to that demand, a petition, in the Circuit Court for Howard County, seeking both a stay of arbitration and a declaratory judgment. Specifically, Western Surety requested, invoking Courts and Judicial Proceedings Article (“CJ”), § 3-208, that the circuit court stay arbitration “with respect to any claims asserted by” Schneider Electric against it because it was not, it averred, a party to any arbitration agreement with Schneider Electric or NCS or to any agreement between them. Western Surety further requested that the court “issue a declaratory judgment with respect to the legal relations between” it and Schneider Electric and, in so doing, to specify the reasons that it, Western Surety, could not be required to participate in the arbitration currently pending between Schneider Electric and NCS, as well as to specify any “suretyship defenses” Western Surety could invoke, were Schneider Electric to bring a claim against it under the performance bond, should it prevail in the pending arbitration proceeding with NCS.

In reply, Schneider Electric filed a motion to dismiss the state court action, brought by Western Surety, on the grounds of improper venue. Although Western Surety opposed that motion, it did agree to Schneider Electric’s request for a change of venue, which led the Howard County court to subsequently transfer this matter to the Circuit Court for Harford County. See Md. Rule 2-327(b) (authorizing a circuit court, upon sustaining defense of improper venue but determining that “in the interest of justice the action should not be dismissed,” to transfer that action” to any county in which it could have been brought”).

At the same time that Schneider Electric moved to dismiss the state court proceedings, it filed a petition, in the United States District Court for the District of Maryland, seeking to compel Western Surety to arbitrate their dispute. The federal district court dismissed that petition, citing the “abstention doctrine,” promulgated by the Supreme Court, in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), which permits a federal district court to dismiss a federal action, when “the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

Later that year, following the transfer of the case to the Harford County circuit court, Western Surety, in September 2014, filed, in that court, a motion for partial summary judgment, asserting that, because there was no agreement to arbitrate between it and Schneider Electric, it was entitled to judgment as a matter of law as to its request for a stay of arbitration. The granting of that motion by the Harford County circuit court prompted the filing of this interlocutory appeal by Schneider Electric.

Having not been stayed during the pendency of this appeal, arbitration proceedings, to which only Schneider Electric and NCS were parties, continued without interruption. In fact, shortly after the parties’ presentation of oral argument, before this Court, those proceedings concluded with a determination, by the arbitrator, that NCS had breached its subcontract with Schneider Electric, whereupon Schneider Electric was awarded, by the arbitrator, a total of $1,658,924.21 in damages, attorneys’ fees, arbitrator’s fees, and costs that Schneider Electric had incurred. Following that decision, Western Surety promptly filed a motion to dismiss this appeal, contending that, because the dispute between Schneider Electric and Western Surety was, principally, whether Western Surety was contractually obligated to submit to arbitration and, as that arbitration had concluded, the instant appeal is now moot and warrants dismissal.

“A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Falik v. Hornage, 413 Md. 163, 186, 991 A.2d 1234 (2010) (citation and quotation omitted). Although the arbitration between Schneider Electric and NCS has, indeed, ended, the issue of whether Schneider Electric may seek payment of that award from Western Surety via arbitration is still before us. That issue was understandably neither addressed nor resolved during the arbitration proceedings between Schneider Electric and NCS. It therefore remains an “existing controversy” between the parties and, in fact, lies at the heart of this appeal. Accordingly, we shall deny Western Surety’s motion to dismiss and proceed to the merits of the issue presently before us.

III

Under Maryland Rule 2-501(f), a circuit court may grant summary judgment, if there is “no genuine dispute as to any material fact,” and “the party in whose favor judgment is entered is entitled to judgment as a matter of law.” “Because a grant of summary judgment is predicated upon a ruling on a question of law and not a dispute of fact, our review is de novo ” Stein v. Pfizer Inc., 228 Md.App. 72, 85, 137 A.3d 279 (2016) (citation omitted), cert. denied, 450 Md. 129, 146 A.3d 476 (2016). Keeping that standard of review in mind, we turn now to the first issue we have been asked to decide and, that is, whether we must apply federal law, specifically, the Federal Arbitration Act and its attendant presumption in favor of arbitration, in determining whether Western Surety is bound contractually to arbitrate, as Schneider Electric contends, or state contract law, as Western Surety claims.

Preliminarily, we note that the court below did not address whether the contracts at issue, in this appeal, involved interstate commerce and, consequently, it never determined whether the Federal Arbitration Act applied to the instant controversy. See 9 U.S.C. § 1 (defining “commerce,” for purposes of the Federal Arbitration Act, as including “commerce among the several States”). Nor was it necessary that it do so, given that it found that, under either federal or state law, Western Surety was not contractually bound to arbitrate any disputes arising from the performance bond it had issued because, regardless of which Act, federal or state, applies, state law governs the issue of contract formation. We agree.

The Supreme Court first annunciated this principle in Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987), and then later reiterated it, in Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009), to clear up an apparent misreading of Section 2 of the Federal Arbitration Act by a number of federal and state courts.

Section 2 of that federal Act states that a written arbitration provision “in any ... contract evidencing a transaction involving commerce ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. § 2 (emphasis added), an ambiguous clause, to be sure. Then, in Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426, the Supreme Court indicated, apparently not plainly enough, that, while the former clause—“in any ... contract evidencing a transaction involving commerce ... shall be valid, irrevocable, and enforceable”—generally provides that “[a]n agreement to arbitrate is valid, irrevocable, and enforceable, as a matter of federal law,” the language that follows—“save upon such grounds as exist at law or in equity for the revocation of any contract”—provides that “state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” Id. at 492-93 n.9, 107 S.Ct. 2520.

Nonetheless, a significant number of federal and state courts, in addressing whether non-signatories to contracts containing arbitration clauses may either compel a signatory or be compelled by a signatory to arbitrate disputes arising under those contracts, have misconstrued Section 2 and mistakenly concluded that it provides that enforceability of an arbitration clause by or against a non-signatory is to be resolved, in accordance with federal common law. See, e.g., R.J. Griffin & Co. v. Beach Club II Homeowners Assoc., 384 F.3d 157, 160 n.1 (4th Cir. 2004); Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 417 n.4 (4th Cir. 2000); MS Dealer Service Corp. v. Franklin, 177 F.3d 942, 947-48 (11th Cir. 1999); Grundstad v. Ritt, 106 F.3d 201, 204-05 (7th Cir. 1997); Commercial Union Ins. Co. v. Gilbane Building Co., 992 F.2d 386, 388-89 (1st Cir. 1993); United States Fidelity & Guaranty Co. v. West Point Constr. Co., 837 F.2d 1507, 1508 (11th Cir. 1988) (per curiam); Exchange Mut. Ins. Co. v. Haskell Co., 742 F.2d 274, 275-76 (6th Cir. 1984) (per curiam); Rashid v. Schenck Const. Co., Inc., 190 W.Va. 363, 438 S.E.2d 543, 547 (1993); St. Paul Fire & Marine Ins. Co. v. Woolley/Sweeney Hotel No. 5, 545 So.2d 958 (Fla. Dist. Ct. App. 1989) (per curiam).

This misreading of Section 2 has engendered much confusion among many state courts, including Maryland’s Court of Special Appeals. See, e.g., Thompson v. Witherspoon, 197 Md.App. 69, 81, 12 A.3d 685 (2011) (“Under the [Federal Arbitration Act], courts look to substantive provisions of state law regarding threshold issues of the validity, revocability, or enforceability of contracts, but to federal law to resolve issues as to whether a non-signatory to a contract can enforce, or be bound by, an arbitration provision in a contract signed by other parties.”) (citation omitted); Case Handyman and Remodeling Servs., LLC v. Schuele, 183 Md.App. 44, 57, 959 A.2d 833 (2008) (“To resolve the issue whether a non-signatory can enforce a contract’s arbitration provision under the doctrine of equitable estoppel, courts look to the federal substantive law of arbitrability.”), vacated on other grounds, 412 Md. 555, 989 A.2d 210 (2010).

In 2009, the Supreme Court laid to rest this misinterpretation of that section of the Federal Arbitration Act, in Arthur Andersen LLP v. Carlisle, supra, 556 U.S. 624, 129 S.Ct. 1896. There, it explained that when, as in this case, a question arises as to whether an arbitration clause may be enforced by or against non-parties to a contract containing such a clause, “ ‘traditional principles’ of state law,” which “allow a contract to be enforced by or against non[-]parties ... through ‘assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel,’ ” provide the answer to that question. Id. at 631, 129 S.Ct. 1896 (quoting 21 R. Lord, Williston on Contracts § 57:19, at 183 (4th ed. 2001)).

Moreover, in the past few years, several federal courts of appeals, consistent with the Carlisle Court’s relatively recent admonition, have candidly conceded their mistaken impression that federal common law controls in such situations. See, e.g., Crawford Prof. Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 255 (5th Cir. 2014) (recognizing that “prior decisions applying federal common law, rather than state contract law, to decide” whether an arbitration clause may be enforced by or against nonparties to the contract were in error); Lawson v. Life of the South Ins. Co., 648 F.3d 1166, 1170-71 (11th Cir. 2011) (declaring that many of that circuit’s prior “decisions involving the question of whether a non-party can enforce an arbitration clause against a party have not made clear that the applicable state law provides the rule of decision for that question”). We now join those courts in stressing that, under the Federal Arbitration Act, as interpreted by the Supreme Court, the question of whether an agreement to arbitrate binds a non-signatory is a question of state contract law. Arthur Andersen LLP v. Carlisle, 556 U.S. at 631, 129 S.Ct. 1896; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Perry v. Thomas, 482 U.S. at 492-93 n.9, 107 S.Ct. 2520.

Finally, if the Maryland Uniform Arbitration Act, rather than the Federal Arbitration Act, applies in this case, we, of course, reach the same conclusion, that is, state contract law, not federal law, governs whether an agreement to arbitrate binds a non-signatory. See Cheek v. United Healthcare of the Mid-Atlantic, Inc., 378 Md. 139, 147, 835 A.2d 656 (2003) (observing that, under the Maryland Uniform Arbitration Act, the “determination of whether there is an agreement to arbitrate ... depends on contract principles since arbitration is a matter of contract”).

IY.

We now turn to the issue, which is. the fulcrum of this case: whether, under Maryland contract law, Western Surety, in effect, agreed to arbitrate any disputes between it and Schneider Electric, because the performance bond, issued by Western Surety, on behalf of NCS, incorporated by reference the subcontract, which, in turn, incorporated by reference the Master Subcontract Agreement, with its arbitration clause, to which only Schneider Electric and NCS were parties.

“Maryland follows the objective theory of contract interpretation,” Nationwide Mut. Ins. Co. v. Regency Furniture, Inc., 183 Md.App. 710, 722, 963 A.2d 253 (2009), according to which a “court must, as its first step, determine from the language of the agreement what a reasonable person in the position of the parties would have meant at the time the agreement was effectuated.” Hartford Accident and Indemnity Co. v. Scarlett Harbor Associates Ltd. Partnership, 109 Md.App. 217, 291, 674 A.2d 106 (1996) (“Scarlett Harbor I”), aff'd, 346 Md. 122, 695 A.2d 153 (1997) (“Scarlett Harbor II”). Moreover, “[w]here the contract comprises two or more documents, the documents are to be construed together, harmoniously, so that, to the extent possible, all of the provisions can be given effect.” Regency Furniture, 183 Md.App. at 722-23, 963 A.2d 253 (quoting Rourke v. Amchem Prods., Inc., 384 Md. 329, 354, 863 A.2d 926 (2004)).

The latter principle of contract interpretation bears particular relevance to the issue before us, because the agreement between Western Surety and Schneider Electric is the product of principally three documents: the performance bond together with the subcontract and the Master Subcontract Agreement, with its arbitration clause, the former of which incorporates the latter two.

Paragraph 1 of the performance bond states:

[NCS] and [Western Surety], jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to [Schneider Electric] for the performance of the Construction Contract [which includes both the Subcontract and the Master Subcontract Agreement], which is incorporated herein by reference.

According to Schneider Electric, paragraph 1 of the bond binds Western Surety to submit to arbitration all disputes, arising under what is referred to above as the “Construction Contract,” first, because it “jointly and severally” binds Western Surety to ensure “the performance of the Construction Contract,” which includes, insists Schneider Electric, compliance with the arbitration clause, if invoked, and, second, because paragraph 1 of the bond incorporates by reference the subcontract, which, in turn, incorporates by reference the Master Subcontract Agreement and thus its arbitration clause.

A.

Schneider Electric’s assertion that Western Surety, by “jointly and severally” binding itself to “the performance of the Construction Contract,” as stated in paragraph 1 of the performance bond, also bound itself to the incorporated Master Subcontract Agreement’s arbitration clause, ignores the context of those words as well as misconstrues the term “performance.” The Master Subcontract Agreement states that Schneider Electric “desires to engage the services of [NCS] to provide labor, material, equipment and services necessary to perform work in connection with construction projects, from time to time, in accordance with the terms and conditions set forth in” the Master Subcontract Agreement. (Emphasis added.) As the purpose of the Master Subcontract Agreement (and the subcontract, which incorporated that agreement by reference) was to ensure that NCS would “perform work,” prescribed by that agreement, it is with that purpose in mind that the term “performance” should be construed. Ocean Petroleum Co. v. Yanek, 416 Md. 74, 88, 5 A.3d 683 (2010) (citation and quotation omitted). The arbitration clause, on the other hand, is nothing more than an enforcement mechanism, which may never come into play, if all parties proceed as agreed.

Moreover, the paragraphs of the bond, which immediately follow paragraph 1 and employ the verb “perform,” confirm that the term “performance,” contrary to Schneider Electric’s contention, extends only to the tasks that NCS was to complete. Paragraph 2 of the bond states:

If [NCS] performs the Construction Contract, [Western Surety] and [NCS] shall have no obligation under this Bond, except to participate in conferences as provided in Subpara-graph 3.1.

(Emphasis added.)

Subparagraph 3.1 of the bond, in turn, provides:

If there is no [default by Schneider Electric], [Western Surety’s] obligation under this Bond shall arise after ... [Schneider Electric] has notified [NCS] and [Western Surety] ... that [Schneider Electric] is considering declaring a [default by NCS] and has requested and attempted to arrange a conference with [NCS] and [Western Surety] to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If [Schneider Electric], [NCS] and [Western Surety] agree, [NCS] shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive [Schneider Electric’s] right, if any, subsequently to declare a [default by NCS.]

(Emphasis added.)

In sum, NCS’ obligation to “perform,” as set forth in paragraph 2 and subparagraph 3.1 of the bond, refers to the performance of the work it agreed to complete and not to every contractual provision in the incorporation-by-reference chain, which runs from the Master Subcontract Agreement, between Schneider Electric and NCS, to the subcontract between those two parties, to the performance bond, issued by Western Surety. We therefore conclude that the “joint and several” obligation clause in paragraph 1 of the performance bond does not evince Western Surety’s assent to be bound by the arbitration clause in the incorporated-by-reference chain of documents, particularly as it was not a party to either of the two earlier contractual links in that chain, namely, the Master Subcontract Agreement and the subcontract that followed.

B.

We turn now to consider whether the language in paragraph 1 of the bond, providing that the “Construction Contract [which, as noted earlier, includes the Master Subcontract Agreement, with its arbitration clause] ... is incorporated herein by reference,” compels Western Surety to submit to the arbitration clause of that Agreement. In Scarlett Harbor I, supra, 109 Md.App. 217, 674 A.2d 106, this Court specifically addressed the question whether a non-signatory surety on a performance bond, which incorporated by reference a construction contract (containing an arbitration clause) between a developer of a condominium project and one of its subcontractors, could compel the developer to arbitrate its dispute with the surety.

That case arose from complaints by unit owners alleging defective design and construction of a high-rise condominium development, Scarlett Place Residential Condominium. Id. at 229, 674 A.2d 106. Those complaints led the council of unit owners of the condominium to file a civil action, in the Circuit Court for Baltimore County, against the project developer, Scarlett Harbor Associates Limited Partnership (“SHALP”), its general partners, and its former general partners, “asserting breach of the statutory implied warranty, breach of express warranty, breach of contract, and violation of the Maryland Consumer Protection Act.” Id. The defendants, in turn, impleaded several other entities, including a subcontractor, Leonard A. Kraus, Inc., and Hartford Accident and Indemnity Company, which had issued Kraus’s performance bond. Id.

Because the subcontract between SHALP and Kraus contained a broadly worded arbitration clause, which, as this Court explained, “entitled Kraus to require arbitration to resolve any ‘claims, disputes, [or] other matters ... arising out of or relating to the Contract Documents or breach thereof,’ ” Kraus filed a petition, in the Baltimore County circuit court, to compel the SHALP defendants to submit to arbitration. Id. at 289, 674 A.2d 106. Though Hartford was not a party to the subcontract between SHALP and Kraus, Hartford also filed a petition, in the same court, to compel arbitration, asserting its right to invoke the subcontract’s arbitration clause, because the performance bond it had issued incorporated the subcontract by reference. Id. at 292, 674 A.2d 106. The circuit court granted Kraus’s petition but denied Hartford’s, “ruling that the performance bond contract did not contain an arbitration agreement” for Hartford to invoke and that Hartford was not a party to the subcontract, which did. Id. at 289, 674 A.2d 106.

In affirming that ruling, this Court observed that “[w]hen an earlier document is ‘incorporated by reference’ into a subsequent contract, it simply means that the earlier document is made a part of the second document, as if the earlier document were fully set forth therein.” Id. at 292, 674 A.2d 106 (citations omitted). But, we then stressed that the mere “incorporation of one contract into another contract involving different parties does not automatically transform the incorporated document into an agreement between the parties to the second contract,” unless there is “an indication of a contrary intention” to do so. Id. We therefore rejected Hartford’s contention that such “an indication” was evident, noting that the purpose of the incorporation-by-reference bond language was “simply to establish the primary obligation on which Hartford’s secondary obligation would depend.” Id. And, then, we noted that, even if the arbitration clause were incorporated into the bond, that clause “only require[d] arbitration of disputes between Kraus and SHALP, not Hartford and SHALP,” id. much like, as we shall see, the arbitration clause at issue here, which expressly requires the arbitration of disputes between Schneider Electric and NCS but not disputes between Schneider Electric and Western Surety.

Moreover, the bond in Scarlett Harbor, like the bond in the instant case, contained a clause that, in the Court’s words, “indicate[d] an intention to litigate disputes.” Id. at 293, 674 A.2d 106. That clause stated: “Any suit under the bond must be instituted before the expiration of two years from the date on which final payment under the subcontract falls due.” Id. Because Hartford’s interpretation of its bond would have read those words out of the contract, the Scarlett Harbor I Court rejected that construction, on the grounds that “a contract should not be interpreted in a manner in which a meaningful part of the agreement is disregarded.” Id. (citations omitted).

It is true, as Schneider Electric points out, that the Court of Appeals, in affirming this Court’s decision in Scarlett Harbor I, expressly declined to say whether its holding would apply to the specific question presented in this case, namely, whether a surety could be compelled to arbitrate, on the grounds that, in issuing a bond that incorporated by reference a contract, with an arbitration clause, it had agreed “to arbitrate claims on the bond.” Scarlett Harbor II, 346 Md. at 129 n.7, 695 A.2d 153. Nonetheless, when the same principles of Maryland contract law that were invoked by this Court, in Scarlett Harbor I, are applied to the bond and other contractual documents at issue here, we are compelled to reach a conclusion that logically follows the holding of the Court of Appeals in Scarlett Harbor II—that is, that Western Surety is not compelled to arbitrate any dispute involving the performance bond it issued, simply because that bond incorporated by reference an agreement, to which it was not a party, containing a mandatory arbitration clause.

As we noted in Scarlett Harbor I, the “incorporation of one contract into another contract involving different parties does not automatically transform the incorporated document into an agreement between the parties to the second contract,” unless there is “an indication of a contrary intention” to do so. Scarlett Harbor I, 109 Md.App. at 292, 674 A.2d 106. In the instant case, there is no indication of such a “contrary intention.”

Moreover, as in Scarlett Harbor I, the performance bond, in the instant case, “actually indicates an intention to litigate disputes.” 109 Md.App. at 293, 674 A.2d 106. Paragraph 9 of the bond states:

Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable.

(Emphasis added.)

In rejecting the argument made, in Scarlett Harbor I, that an incorporation-by-reference clause in a performance bond must be construed as providing that the surety and the parties to the construction contract all agreed to be bound to an arbitration clause in that construction contract, we declared that such a reading of the bond would, in effect, read out of it a provision, which provided that “[a]ny suit under the bond must be instituted before the expiration of two years from the date on which final payment under the subcontract falls due,” Scarlett Harbor I, 109 Md.App. at 293, 674 A.2d 106. And, that is precisely what would occur here were we to hold that, notwithstanding paragraph 9’s express direction that relief must be sought in the courts of this State, mandatory arbitration of disputes arising under the performance bond was required.

Finally, we note that Schneider Electric’s contention that we should follow the majority of courts in other jurisdictions, holding that a surety, which has agreed to the incorporation by reference of a prior contract, containing an arbitration clause, into a bond at issue is thereby bound to arbitrate any disputes with the bond’s obligee, is unpersuasive. First of all, the analysis in those cases, as the Court of Appeals observed in Scarlett Harbor II, “does not go beyond the fact that the contract containing an arbitration provision has been incorporated into the bond.” Scarlett Harbor II, 346 Md. at 129 n.7, 695 A.2d 153. Indeed, the first two of the cases, cited by the Court of Appeals as lacking any substantive analysis under the law of contracts, United States Fidelity & Guar. Co. v. West Point Constr. Co., supra, 837 F.2d 1507 (11th Cir.1988) (per curiam), and Exchange Mut. Ins. Co. v, Haskell Co., supra, 742 F.2d 274, 275-76 (6th Cir.1984) (per curiam), are two of the principal cases upon which Schneider Electric relies in this appeal. Those and the other cases, cited by Schneider Electric, are not only short on substance, but shy of analysis. Indeed, had we not been provided, by Scarlett Harbor I, with the analytic framework we now employ and, consequently, forced to look outside of Maryland for persuasive authority, we would rely upon the decisions of the United States Court of Appeals for the Eighth Circuit, in AgGrow Oils, LLC v. Nat. Union Fire Ins. Co., 242 F.3d 777 (8th Cir. 2001), and Liberty Mut. Ins. Co. v. Mandaree Pub. Sch. Dist. # 36, 503 F.3d 709 (8th Cir. 2007), which are the only federal decisions (out of all of the cases cited by the parties) to correctly apply state contract law to the question of whether an agreement to arbitrate exists and also, in our view, correctly held that, under the circumstances, a bond’s mere incorporation by reference of a contract, containing an arbitration clause, did not obligate the issuer of that bond to arbitrate.

MOTION TO DISMISS DENIED.

JUDGMENT OF THE CIRCUIT COURT FOR HAR-FORD COUNTY AFFIRMED.

CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLANT.

      . When the parties entered into the Master Subcontract Agreement, Schneider Electric was known as TAC Critical Systems, Inc. In July 2011, more than two years after the execution of the Master Subcontract Agreement, TAC Critical Systems changed its name to Schneider Electric Buildings Critical Systems, Inc.

      . Although the court below stated, in its opinion, that the bond amount was $2,600,000, the bond and pleadings below indicate the amount was $2,050,000.

      . The American Institute of Architects is an organization which, among other things, “[s]ets the industry standard in contract documents with more than 100 forms and contracts used in the design and construction industry.” See "About the AIA,” available at http://www.aia.org/aboul/ index.htm (last visited Nov. 7, 2016).

      . There were fourteen change orders issued by Schneider Electric to NCS, as well as a promise to issue an additional change order, extending the date for completion of the work from September 19, 2013 to February 28, 2014, pending the conclusion of negotiations between Schneider Electric and Clark Construction.

      . Maryland Code (1974, 2013 Repl. Vol.), Courts and Judicial Proceedings Article ("CJ”), § 3-208 provides:
      (a) If a party denies existence of the arbitration agreement, he may petition a court to stay commenced or threatened arbitration proceedings.
      (b)(1) A petition to stay arbitration shall be filed with the court where a petition to order arbitration has been filed.
      (2) If a petition for order to arbitrate has not been filed, the petition to stay arbitration may be filed in any court subject to venue provisions of Title 6 of this article.
      (c) If the court determines that existence of the arbitration agreement is in substantial and bona fide dispute, it shall try this issue promptly and order a stay if it finds for the petitioner. If the court finds for the adverse party, it shall order the parties to proceed with arbitration.

      . This appeal was filed, pursuant to Courts and Judicial Proceedings Article ("CJ”), § 12-303(3)(ix), which permits an interlocutory appeal from an order "[g]ranting a petition to stay arbitration pursuant to § 3-208.”

      . The question at issue in Arthur Andersen was whether a non-signatory to a contract, containing an arbitration clause, could, nonetheless, invoke provisions, in the Federal Arbitration Act, entitling "litigants in federal court to a stay of any action that is 'referable to arbitration under an agreement in writing’ ” as well as to seek an appeal from a district court’s order denying such a stay. Arthur Andersen, 556 U.S. at 625, 129 S.Ct. 1896 (quoting 9 U.S.C, § 3) (citing 9 U.S.C. § 16). The Supreme Court held that, "if the relevant state contract law” permits a non-signatory to enforce such an arbitration agreement, that non-signatory is entitled to seek a stay, under 9 U.S.C, § 3, as well as to appeal, under 9 U.S.C, § 16, from the denial of such a stay. Id. at 632, 129 S.Ct. 1896.

      . Western Surety is domiciled in South Dakota, as stated on the website of its corporate parents, CNA Surety and CNA Financial Corporation. Furthermore, Schneider Electric is a Delaware corporation, with its principal place of business in Maryland. Moreover, the work to be performed by NCS, under its subcontract with Schneider Electric, was to be done at a federal military installation, Aberdeen Proving Ground. For all of these reasons, we would conclude that, were it necessary for our decision, the Federal Arbitration Act applies in this case,

      . Courts and Judicial Proceedings Article, § 3-206(a), part of the Maryland Uniform Arbitration Act, provides:
      Except as otherwise provided in this subtitle, a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy arising between the parties in the future is valid and enforceable, and is irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract,
      (Emphasis added.) The bolded language in the Maryland Act is virtually identical to the corresponding language in the Federal Arbitration Act.

      , The arbitration clause at issue in Hartford Accident and Indemnity Co. v. Scarlett Harbor Associates Ltd. Partnership, 109 Md.App. 217, 674 A.2d 106 (1996) (Scarlett Harbor I), aff'd, 346 Md. 122, 695 A.2d 153 (1997) (Scarlett Harbor II), provided:
      All claims, disputes and other matters in question between the Contractor [Kraus] and the Owner [SHALP] arising out of or relating to the Contract Documents or the breach thereof ,.. shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise, ... No arbitration shall include by consolidation, joinder, or in any other manner, parties other than the Owner, the Contractor and any other persons substantially involved in a common question of fact or law, whose presence is required if complete relief is to be accorded in the arbitration.

        Id. at 288, 674 A.2d 106,

      . The performance bond contained the following provision:
      Whereas, Principal [Kraus] has by written agreement dated 8/12/86 entered into a subcontract with Obligee [SHALP] for Renovation and addition to Scarlett Seed Building—Light Gauge Metal Framing (Scarlett Place Phase II & III) in accordance with drawings and specifications prepared by Meyers & D’Aleo which subcontract is by reference made a part hereof, and is hereinafter referred to as the subcontract.

        Scarlett Harbor I, 109 Md.App. at 289, 674 A.2d 106.

      . Commercial Union Ins. Co. v. Gilbane Building Co., 992 F.2d 386, 388-89 (1st Cir. 1993); Tower Ins. Co. of N.Y. v. Davis/Gilford, 967 F.Supp.2d 72 (D.D.C. 2013); Developers Sur. and Indem. Co. v. Resurrection Baptist Church, 759 F.Supp.2d 665 (D.Md 2010); U.S. Surety Co. v. Hanover R.S. Ltd. P’ship, 543 F.Supp.2d 492 (W.D.N.C. 2008); Transamerica Premier Ins. Co. v. Collins & Co., Gen. Contractors, Inc., 735 F.Supp. 1050 (N.D.Ga. 1990); Hoffman v. Fid. and Deposit Co. of Md., 734 F.Supp. 192 (D.N.J.1990); Cianbro Corp. v. Empresa Nacional de Ingeniería y Technologia, S.A., 697 F.Supp. 15 (D.Me. 1988).

      . The performance bond at issue in Liberty Mut. Ins. Co. v. Mandaree Pub. Sch. Dist. # 36, 503 F,3d 709 (8th Cir. 2007), like the one at issue here, was an AIA form A312 bond. See Liberty Mut. Ins. Co. v. Mandaree Pub. Sch. Dist. # 36, 459 F.Supp.2d 866, 868 (D.N.D. 2006), aff'd, 503 F.3d 709.