author: Gilbert, C. J.,

text:
    DANIEL SHAW v. DAVID R. GLICKMAN, Personal Representative of the Estate of Leonard J. Gallant et al.
    [No. 1210,
    September Term, 1979.]

      Decided June 13, 1980.

    The cause was argued before Gilbert, C. J., and MacDaniel and Weant, JJ.

      Arnold Fleischmann for appellant.

      E. Dale Adkins, III, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

This case concerns a new strand to an old yarn, the eternal triangle. It is new in that in addition to the usual cast, le mari, la femme, et 1’amant (the husband, the wife, and the lover), new characters, the husband’s "psychiatric team,” have been joined as parties. In fact, the "team” has been sued for the injuries inflicted on 1’amant by le mari.

The appellant, Dr. Daniel Shaw, a dentist, the husband, Leonard Billian, and Mr. Billian’s former wife, Mary Ann Billian, were all under the psychiatric care of the late Dr. Leonard J. Gallant, a psychiatric nurse known professionally as Patricia Hencke, but privately as Mrs. Gallant, and Mr. Joseph Napora, a psychologist. Sometime during the course of her therapy in 1974, the then Mrs. Billian left her husband. Subsequently, she "had two ... [sessions] with Ms. Hencke along with .. . [Mr. Billian], which were more or less marriage counselling type appointments where she was talking to both of. .. [them].” At the first meeting of herself, her then husband, and Ms. Hencke, Mrs. Billian "told him [, Mr. Billian,] there was somebody. He did not seem terribly distraught about that.” According to Mrs. Billian, Ms. Hencke informed the husband of the identity of the person in whom his wife was interested, Dr. Shaw.

Mrs. Billian continued to see Dr. Shaw and they conversed by telephone. The record is not clear as to the frequency of those events.

On April 26, 1974, the day following the last group therapy session that Dr. Shaw and Mrs. Billian attended that was conducted by Ms. Hencke, "Leonard Billian broke into Dr. Shaw’s home at 2:00 A.M.” At that time Dr. Shaw and Mrs. Billian were asleep in the same bed. Both were nude. Mr. Billian, obviously believing he had been cuckolded, discharged five bullets into the body of Dr. Shaw. Either Mr. Billian was a poor shot or an excellent one, because none of the wounds were fatal.

From the depositions that constitute a large part of the record in this case, we learn that on the evening of April 26, 1974, a Friday, Dr. Shaw left his office at about 5:30 p.m., went to his residence in Cross Keys, "changed clothes [and] went over to Mary Ann’s mother’s house and picked her [Mary Ann] up.” From there they journeyed to Curtis Bay "and went to the wedding of a girl who worked for ... [Shaw].” The dentist said that on the way back to "Mary Ann’s mother’s house,” at about 1 a.m. that night, he fell asleep at the wheel. Dr. Shaw attributed that to his having been up from 5 a.m. the preceding day. Shaw said that he told Mrs. Billian that he could manage to drive her to her mother’s, but he did not see how he was "going to stay awake driving back from ... [the] mother’s house ... to Cross Keys.” Consequently, at Pimlico, on Northern Parkway, he "turned around and went back to ... [his] apartment, and went to bed, and a very few moments after we put out the lights to go to sleep, somebody entered the apartment and shot me.”

Sometime earlier in the evening of the shooting, Mrs. Billian had spoken to her son, Michael. That conversation, related to Dr. Shaw, was to the effect that "Leonard Billian was acting in a bizarre way, and he was walking around with a pistol, with a gun belt and a pistol.” That fact, however, did not alarm Shaw because Shaw "had no notion he [Billian] would be prowling around at 2 o’clock in the morning.”

Dr. Shaw, in his deposition, said that he had, "at the beginning of either the session [with Dr. Gallant] before the shooting or the week before that when we began our session, .. . [expressed] some concern about the possibility — this is a paraphrase — of violence from Leonard Billian.” Shaw stated that Dr. Gallant was concerned that Shaw "appeared to be developing a relationship” with an immature person. Dr. Gallant, according to Shaw, "brushed aside ... [Shaw’s] expression of concern” relative to Mr. Billian with the remark that " We have got to get on to other things. We don’t have to be concerned about that.’ ”

Shaw’s suit against the "psychiatric team” was grounded on the theory of their negligence in failing to warn Shaw of Billian’s "unstable and violent condition and the foreseeable and immediate danger that it presented to” Shaw.

The suit was met by the usual general issue pleas. Discovery followed. Ultimately, the psychiatric trio moved for a summary judgment. They asserted that "there is no duty in the State imposed upon psychiatrists or psychotherapists to warn a potential victim of the violent propensities of any person, whether a patient or otherwise, of that psychiatrist or psychotherapist.” Moreover, the "team” maintained even if such a duty existed, Dr. Shaw "assumed the risk of being assaulted by Leonard Billian and was contributorily negligent [as matter of law] in taking off his clothes and going to bed with [the equally nude] Mrs. Billian on April 27, 1974.”

Judge Grady, as we have previously stated, granted the motion for summary judgment because Shaw "assumed the risk of the injury. The Court conc!ude[d] that immediately before ... [Shaw] was injured he voluntarily placed himself in a situation involving a danger to himself which was so obvious and apparent that... [Shaw] either knew or should have known of the danger involved----”

Patently aggrieved at the decision of the Superior Court of Baltimore City, Shaw has carried his cause here where he contends:

"I. A psychiatrist, who determines or should determine that a person presents a foreseeable danger of violence to one of his patients, incurs a duty to exercise reasonable care to prevent the threatened violence.
II. When a psychiatrist, who determines or should determine that a person presents a foreseeable danger of violence to one of his patients, incurs a duty to exercise reasonable care to prevent the threatened violence, the rule of privileged communications does not bar him from taking protective measures.
III. When a psychiatrist, who determines or should determine that a person presents a foreseeable danger of violence to one of his patients, incurs a duty to exercise reasonable care to prevent the threatened violence, the failure to exercise such reasonable care is the proximate cause of the injuries.
IV. A victim of criminal activity, who voluntarily places himself in his bed with the assailant’s wife, does not assume the risk of injury at the hands of the assailant and is not barred from recovering for such injury.”

We think that the four issues framed by Shaw should be rephrased into one, and that is, did the Superior Court err in granting a summary judgment for the appellees? We think the court did err. Nevertheless, the error will avail Shaw of naught except a return to the Superior Court where his case will be dismissed because under the peculiar circumstances out of which this matter arises, no cause of action against the three appellees exists. In short, while we think the hearing judge was wrong in his reasons, he was right in his ultimate result.

Shaw points to Tarasoff v. Regents of the University of California, 17 Cal. 3rd 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976), as authority for the proposition that the psychotherapist-patient relationship imposes on the therapists a duty to control his patient and the concomitant duty to protect the patient’s would-be victim.

In Tarasoff, the facts were that Prosenjit Poddar killed Tatiana Tarasoff. Tatiana’s parents sued a number of persons as well as the Regents of the University of California, alleging that Poddar had confided his intent to slay Tatiana to a Dr. Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. Moore contacted the campus police who detained Poddar briefly. Because he appeared rational, the police released him. No one warned Tatiana of Poddar’s threats. The slaying of Tatiana occurred approximately 67 days after Poddar had confided to Moore that he would kill her.

The Superior Court, Alameda County, sustained, on behalf of all defendants, a demurrer without leave to amend. The complaint consisted of four parts. The first was called "Failure to Detain a Dangerous Patient”; the second was entitled "Failure to Warn On a Dangerous Patient”; the third was named "Abandonment of a Dangerous Patient”; the fourth was styled "Breach of Primary Duty to Patient and the Public.” The first and fourth "causes of action” were, in the words of the Supreme Court of California, "legally indistinguishable.” The first and fourth causes failed to penetrate the invisible shield of sovereign immunity. The third cause fell victim to the California appellate decisions precluding exemplary damages in wrongful death cases. The Tarasoff Court, in a split decision held that:

"[T]he special relation that arises between a patient and his doctor or psychotherapist . . . may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons. A doctor must also warn a patient if the patient’s condition or medication renders certain conduct, such as driving a car, dangerous to others.” (Footnotes omitted.) 17 Cal. 3rd at 436, 131 Cal. Rptr. at 23-24, 551 P.2d at 343-44.

Aside from Tarasoff, there is authority to the effect that "the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.” Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal, L. Rev. 1025, 1030. See also Merchants National Bank & Trust Co. of Fargo v. United States, 272 F. Supp. 409 (D.N.D. 1967).

The Court, in Tarasoff, noted that there was no question of a missed diagnosis or failure to predict the future conduct of the patient. What was involved was the fact that the patient did tell the therapist of the plan to kill Tatiana, and the therapist, while correctly predicting the event, negligently failed to warn the victim.

The court turned away the contention that "the therapist should be absolved of any responsibility for failing to act to protect the potential victim.” Rather the court opined that "once a therapist ... determine^] or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.” 17 Cal. 3rd at 439, 131 Cal. Rptr. at 25, 551 P.2d at 345. The court concluded that each case must stand on its own facts, as measured against traditional negligence standards of reasonable care under the circumstances.

We neither accept nor reject the rationale of Tarasoff because, in our view, it is inapposite to the instant case.

Here there was no threat revealed to the "team” by Billian to kill or injure Dr. Shaw; there was apparently no confiding by Billian in the doctor or his staff, concerning any animosity or hatred toward Dr. Shaw. The record, at least, is devoid of the existence of any such feeling. Although Billian was known by Dr. Gallant to tote a gun, that fact does not give rise to the inference that Billian did so for the purpose of harming Dr. Shaw. The matter sub judice is unlike Tarasoff in that the intent to kill or injure was not disclosed.

Underlying Dr. Gallant’s obligation to his patients was the Hippocratic oath. That oath, in pertinent part, states: "All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.”

Of course, it may be argued that when, as in Tarasoff, a patient informs a doctor of the patient’s plan to kill another person, such information is not within the proscription of the Hippocratic oath, but rather "ought to be spread abroad” in order to prevent injury or loss of life. Clearly, had Billian confided in Dr. Gallant, or any of the team, that he, Billian, planned to shoot Dr. Shaw, Dr. Gallant would have faced a dilemma, i.e., to breach Billian’s confidence and tip off Shaw, or keep Billian’s confidence and, figuratively speaking, throw Shaw to the wolves.

Even that dilemma is not without some legislative guidance. Md. Courts and Judicial Proceedings Code Ann. .(1974) § 9-109 (b) provides:

"Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient’s mental or emotional disorder.”

The privilege against disclosure belongs to the patient, not the psychiatrist or psychologist. Bremer v. State, 18 Md. App. 291, 307 A.2d 503 (1973), cert. denied, 415 U.S. 930 (1974).

The statute provides also for the exceptions to its tenets Courts Art. § 9-109(d). None of the exceptions are germane to the issue before us, however. It seems to us that inasmuch as the statute confers a privilege of confidentiality on the communication between patient and psychiatrist-psychologist in judicial, legislative, or administrative proceedings, which privilege is that of the patient, no lesser privilege is existent when the matter is not judicial, legislative, or administrative. With the exception of those instances where the privilege of confidentiality is expressly prohibited, the lips of the psychiatrist or psychologist have been statutorily sealed shut subject solely to being unsealed by the patient or the patient’s authorized representative.

We hold that under current Maryland law, it would have been a violation of the statute for Dr. Gallant or any member of his psychiatric team to disclose to Dr. Shaw any propensity on the part of Billian to invoke the old Solon law and shoot his wife’s lover.

We are not to be understood as sanctioning Billian’s taking the law into his own hands. Maryland is still subject to the common law, except where it has been changed or modified by legislative action. Maryland Declaration of Rights, Article V. We have seen that at common law the irate husband could not lawfully dispose of his wife’s paramour even when he happened upon them in flagrante delicto. The law provides adequate redress to the cuckolded husband, in the form of a divorce on the ground of adultery, or a criminal prosecution against the interloper for adultery, or a combination of the remedies. Prior to the recent decision of the Court of Appeals in Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980), the husband could have also maintained an action for criminal conversation.

Because we believe no cause of action exists on the part of Dr. Shaw against the psychiatric team, under the circumstances of this case, we affirm the judgment of the Superior Court of Baltimore.

Judgment affirmed.

Costs to be paid by appellant.

      . The phrase, eternal triangle, according to H. L. Mencken, New Dictionary of Quotations on Historical Principles from Ancient and Modern Sources, 1217 (1942), came into the English language from the Italian triangolo equilátero.

        . From the record, we learn that Mary Ann Billian is now Mary Ann Shaw as of March 10, 1977.

      . Dr. Shaw denied in his deposition that he and Mrs. Billian had been intimate, but he failed to answer a request for admission of fact "|t]hat the Plaintiff [Dr. Shawl and Mary Ann Billian had, during the month prior to the shooting ... engaged in sexual relations with each other.” Thus, under Md. Rule 421 b 2, it is admitted.

      . Sir William Blackstone, in 4 Commentaries on the Laws of England * 191-92, says: "So, if a man takes another in the act of adultery with his wife and kills him directly upon the spot, though this was allowed by the laws of Solon, as likewise by the Roman civil law, (if the adulterer was found in the husband’s own house,) and also among the ancient Goths, yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of forcible rape, but it is manslaughter. It is, however, the lowest degree of it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation.” (Footnotes omitted).
      Some states by statute have eliminated the slaying by husband of the wife’s lover as a crime, provided the husband comes upon his wife and her lover "in the act of adultery ... [and] the killing takefs] place before the parties to the act have separated.” 2 Vernon’s Statutes, Penal Code (1948) ch. 12, art. 1220. See generally, J. M. Kerr, A Treatise on the Law of Homicide. § 193 (1891).
      For an early American decision adhering to Blackstone, read State v. Samuel, 48 N.C. (3 Jones) 74 (1855).

      . Mr. Billian was convicted of assault. Mrs. Billian obviously by then divorced, married Dr. Shaw. Shaw "made a claim against” Mr. Billian for the injuries caused by Billian. The claim "was settled for $20,000.”

      . Dr. Gallant’s estate is represented by his personal representatives. Inasmuch as no claim had been filed against Dr. Gallant’s estate within the prescribed time. See Md. Estates and Trusts Code Ann. (1974) § 8-103, recovery against the estate was barred. The late doctor’s liability insurance carrier, however, is not protected by the time passage.

      . The criminal case is reported in People v. Poddar, 10 Cal. 3rd 750, 111 Cal. Rptr. 910, 518 P.2d 342 (1974).

      . See n. 2, 17 Cal. 3rd at 430, 131 Cal. Rptr. at 20, 551 P.2d at 340.

      . Courts Art. § 9-109 provides in part:
      "(d) Exclusion of privilege. There is no privilege if:
      (1) A disclosure is necessary for the purposes of placing the patient in a facility for mehtal illness;
      (2) A judge finds that the patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder;
      (3) In a civil or criminal proceeding:
      (i) The patient introduces his mental condition as an element of his claim or defense; or
      (ii) After the patient’s death, his mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient;
      (4) The patient, his authorized representative, or his personal representative makes a claim against the psychiatrist or certified psychologist for malpractice;
      (5) Related to civil or criminal proceedings under defective delinquency proceedings; or
      (6) The patient expressly consents to waive the privilege, or in the case of death or disability, his personal or authorized representative waives the privilege for purpose of making claim or bringing^ suit oh a policy of insurance on life, health, or physical condition.”

      . Ibid.

      . Courts Art. § 9-109 (a) defines "authorized representative” to mean "a person authorized by the patient to assert the privilege granted by this section and until permitted by the patient to make disclosure, the person whose communications are privileged.”


source: Caselaw Access Project

author: MacDaniel, J.,

license: Public Domain

text:
    MARVIN C. FRANZEN v. EDWARD ROBERT DUBINOK et ux.
    [No. 1211,
    September Term, 1979.]

      Decided June 13, 1980.

      The cause was argued before Gilbert, C. J., and MacDaniel and Weant, JJ.

      C. Clarke Raley, with whom was George R. Sparling on the brief, for appellant.

      Richard D. Fritz for appellees.
   MacDaniel, J.,

delivered the opinion of the Court.

Edward Robert Dubinok and Henrietta Dubinok, his wife, (appellees) instituted an action ex delicto in the Circuit Court for St. Mary’s County, Maryland, against Marvin C. Franzen (appellant), seeking compensatory and punitive damages on account of an alleged trespass (Count 1) and nuisance (Count 2) caused by an increase and change in the natural flow of surface waters. Appellees further requested a permanent mandatory injunction requiring appellant to direct the flow of said surface waters away from appellees’ property. The case was tried before a jury on September 7th and 8th, 1978, and at its conclusion a verdict was rendered for appellees in the amount of $4,000 compensatory and $7,000 punitive damages. Judgment absolute was rendered nunc pro tunc on November 9,1978. The following "Order of Satisfaction” was filed November 6, 1978:

"ORDER OF SATISFACTION
MADAM CLERK:
Please be advised that the judgment entered in the above captioned matter has been satisfied. If you would make the appropriate entry in the record of judgments, it would be appreciated.
[Signed] Richard D. Fritz, Esquire,
Attorney for the Plaintiffs”

Next, on January 8, 1979, the court scheduled a hearing on the.prayer in the original declaration requesting permanent injunctive relief. Appellant filed Pleas in Bar and a Motion to File Third Party Claim. The court denied these motions, heard evidence on the issue of injunctive relief and, on July 31, 1979, issued an Order granting injunctive relief.

In this appeal appellant now attacks the jury verdict and in addition alleges error in the grant of ancillary injunctive relief, as well as to the denial of his motion to file a third party claim in the injunctive proceeding. Pointing to the Order of Satisfaction, appellees have filed a "Motion to Dismiss” before this Court to challenge the appellant’s attack on the jury verdict. We find the issue of error regarding the jury verdict has been rendered moot, and we therefore grant appellees’ Motion to Dismiss respecting that issue.

The Order of Satisfaction

After the jury rendered its verdict for appellees on compensatory and punitive damages an Order of Satisfaction was executed and delivered without qualification. When this Order was filed the case handled by the jury was terminated. There was nothing left to appeal.

The general rule applicable to this issue has been stated several times by this Court and the Court of Appeals. In Rocks v. Brosius, 241 Md. 612 (1966), the Court of Appeals wrote, at 630:

"The right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal.”

See also State, use of Shipley v. Walker, 230 Md. 133 (1962); Turner v. Washington Suburban Sanitary Commission, 221 Md. 494 (1960), and Bowers v. Soper, 148 Md. 695 (1925). Apparently, however, the precise question here — whether the voluntary payment or satisfaction of a judgment, in compliance with its terms and provisions, is a waiver of the right to maintain an appeal or writ of error to reverse it — is one of first impression in Maryland. Nevertheless, the reverse question, i.e., whether acceptance of such payments acts as a waiver or release of error, estopping one afterward to maintain an appeal from such judgment, has been considered. Thus, for example, in Dubin v. Mobile Land Corp., 250 Md. 349 (1968), a mortgagee voluntarily accepted a check for expenses incurred in instituting foreclosure proceedings accruing to him from a decree. The decree also enjoined him from instituting any foreclosure proceedings on the mortgage for any default which occurred prior to the date of the decree. The Court held that the mortgagee’s acceptance of any portion of the decree estopped him from challenging the decree on appeal. The Court stated, at 353:

"It is well settled in Maryland, and the law generally is to the effect, that if a party, knowing the facts, voluntarily accepts the benefits accruing to him under a judgment, order or decree, such acceptance operates as a waiver of any errors in the judgment, order or decree and estops that party from maintaining an appeal therefrom. Silverberg v. Silverberg, 148 Md. 682, 130 A. 325 (1925); Stewart v. McCaddin, 107 Md. 314, 68 A. 571 (1908). See 4 C.J.S. Appeal and Error, § 215, p. 644.”

In Turner v. Washington Suburban Sanitary Commission, supra, the plaintiff/appellant was awarded compensatory damages. The trial judge ordered a remittitur or a new trial. The plaintiff filed a remittitur expressly reserving the right to appeal. In Kneas v. Hecht Company, 257 Md. 121 (1970), the plaintiff/appellant not only filed a remittitur but also accepted payment and had the judgment marked "Paid, Settled and Satisfied.” In each case the Court held the appellant estopped from challenging the judgment on appeal; in Turner the Court held nugatory the attempted reservation of the right to appeal. And see Rocks v. Brosius, supra; Hardy v. Metts, 282 Md. 1 (1978).

As the foregoing cases demonstrate, the Court of Appeals has heretofore applied the general rule only under circumstances in which an appeal has been filed by a party following acceptance of payment tendered by another party in conformity with a judgment. We think the general rule must apply equally in cases such as this, wherein an appeal is filed by a defendant following tender of payment to a plaintiff in accordance with a judgment. In our view, both tender and acceptance of payment under these circumstances equally constitute "taking a position which is inconsistent with the right of appeal.” We note that our view conforms with the weight of authority in other jurisdictions. Accordingly, we hold that appellant’s voluntary payment of damages to appellees in compliance with the judgment, resulting in the entry of an Order of Satisfaction on the record without qualification, acts to waive appellant’s right to maintain an appeal to reverse the judgment. We now turn to consider appellant’s challenge to the grant of mandatory injunctive relief.

The Order for Injunctive Relief

Appellant first argues that appellees’ entry of the Order of Satisfaction acted to release appellant from all claims embodied in the Declaration, thereby barring appellees from subsequently obtaining injunctive relief. We think the Order of Satisfaction did no such thing. Appellees were certainly entitled to request mandatory injunctive relief along with their Declaration at law; subtitle BF of the Maryland Rules of Procedure specifically allows this to be done. The manifest purpose of that subtitle is to provide appropriate equitable relief which, though ancillary to,- is nevertheless separate and distinct from that relief obtainable at law. And in this case it is clear that the Order of Satisfaction was entered as to a judgment which addressed only the legal issues in the case; the equitable questions were never addressed during trial of the legal issues. Though perhaps it were better in this case had the trial court made it clear early on that the prayer for ancillary relief would be reserved pending resolution of the legal issues, his failure to do so was hardly fatal to the propriety of the subsequent proceedings. Entry of the Order of Satisfaction in this case did not preclude later proceedings to consider the request for injunctive relief.

Appellant also challenges the grant of mandatory injunctive relief on its merits and argues, inter alia, that the injunction failed to state with sufficient specificity the relief being granted.

Maryland Rule BF 42 provides:

"The action shall, with regard to the claim for mandamus or injunction, be governed by the procedure for such actions in ... Subtitle BB (Injunction)....”

And Maryland Rule BB 78 provides in part:

"a. Form — Contents.
An order granting an injunction shall set forth the reasons for its issuance; shall be specific in its terms; and shall describe in reasonable detail, and not by reference to the complaint or other document, the act sought to be required or commanded or restrained or forbidden.” (Emphasis added.)

The trial court’s Order for Injunctive Relief quoted as written, provides in part:

"Upon the hearing of additional testimony, and in consideration of the testimony presented on the 7th and 8th days of September, 1978, and in further consideration of the implicit findings of fact made by the jury, by way of their verdict, it is, this 31st day of July, 1979, by the Circuit Court of St. Mary’s County, Maryland, sitting as a Court of Law; yet, at the same time, exercising powers of Equity, due to the extraordinary nature of Maryland Rule BF 40, so determined that the Plaintiffs are entitled to a mandatory injunction against the Defendant, Marvin C. Franzen, so ordering the Defendant to halt and prevent any future flooding of the Plaintiffs’ property located at 144 Essex Drive South, Lexington Park, Maryland. It is the determination of this Court that the major justification and reason for this mandatory injunction is that since the verdict of the jury on September 8, 1978, the lands of the Plaintiffs’ have continued to flood on a re-occurring basis due to the prior acts of the Defendant; and, that in the absence of this mandatory injunction future flooding of the property of the Plaintiffs’ is foreseeable and certain.
As such, it is
ORDERED, DECREED AND ADJUDGED, that the Plaintiffs, Edward Robert Dubinok, and Henriette Dubinok, are entitled to a mandatory injunction against the Defendant, Marvin C. Franzen, as above stated, and as such, it is
ORDERED, that the Defendant, Marvin C. Franzen, is hereby MANDATORIALLY ENJOINED, to take such actions as shall be necessary to prevent any future flooding of the Plaintiffs’ property located at 144 Essex Drive South, Lexington Park, Maryland; and it is further,
ORDERED, that such actions as are necessary to prevent any future flooding shall be taken within ninety (90) days from the date of this Order; however, should it become necessary to grant a longer period of time, such additional period will be considered by this Court, for good cause shown; and it is further,
ORDERED, that any issue of additional damages to the Plaintiffs, shall be, and is hereby reserved, for future determination by this Court.”

We agree with appellant that the Order is defective for its failure to conform with the mandatory requirements of Maryland Rule BB78a. Plainly, the Order lacks specific terms and reasonable detail; it is too vague, too broad. See O.F.C. Corp. v. Turner, 228 Md. 105 (1962). Compare Stacy v. Burke, 259 Md. 390, 401 (1970). Accordingly, we think the Order must be revised.

Finally, appellant alleges error in the trial court’s denial of his Motion to File a Third Party Claim in the injunction proceeding. Appellant attempted to join the Board of County Commissioners of St. Mary’s County in the action, averring in his motion only that "it would be in the best interests of the parties ... to allow a Third Party action to be filed at this time because if the Court is going to grant equitable ancillary relief, it can only reasonably do so if all parties interested in the land and its associated drainage problems are before the Court.”

Since the matter had been at issue for more than 30 days prior to entry of the motion, the question was governed by Maryland Rule 315 b., which provides:

"If more than 30 days have elapsed after the action is at issue such summons on a third party shall be issued only upon consent of the plaintiff or upon a showing that the delay was excusable or does not prejudice other parties to the action.”

Plaintiffs/appellees did not consent. The trial judge is vested under subsection b. with sound discretion in deciding whether a defendant’s delay in seeking impleader would prejudice other parties in the action, Apex Express Inc. v. Baicovitz, 249 Md. 351 (1968), and under these circumstances we cannot say that such discretion was abused; the trial judge did not err in denying appellant’s motion.

Appellees’ motion to dismiss granted; judgment at law affirmed.

Denial of appellant’s motion to add third party defendant affirmed.

Injunction vacated and case remanded for passage of an order for injunctive relief in conformity with views stated in this opinion.

Costs to be divided equally between the parties.

      . See generally 4 C.J.S. Appeal and Error, § 214.


author: Moylan, J.,

text:
    DELORES MARIE MASON v. STATE OF MARYLAND
    [No. 1216,
    September Term, 1979.]

      Decided June 13, 1980.

    The cause was submitted on briefs to Moylan, Melvin and Wilner, JJ.
    Submitted by Harold Buchman, Assigned Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Alexander L. Cummings, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Robert L. Dean, Assistant State’s Attorney for Montgomery County, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The single issue before us on this appeal is the permitted breadth of an order of restitution. May a convicted thief (we use that term in its broadest and most informal sense) be required, as a condition of probation, to make restitution to the world for his multitudinous peculations or must the restitution be limited by the losses established in the actual case, the conviction as to which serves as the predicate for the sentence? We hold that the latter is the appropriate and legally required limitation upon court-ordered restitution.

The appellant, Delores Marie Mason, owned and managed an antique shop in the District of Columbia. During the summer of 1978, her antique business fell upon hard times. Her straitened circumstances embroiled her in a series of questionable financial manipulations, some of which were involved in the case now before us and some of which were not. She was convicted in the Circuit Court for Montgomery County upon the first count of a single indictment, charging embezzlement from Mr. and Mrs. Kenneth Bennett in the amount of $3,949.61. Following the submission of a presentence investigation and a sentencing hearing, a sentence of three years was imposed and then suspended, with five years of supervised probation substituted therefor with the additional condition that restitution be made. This appeal concerns the terms of that restitution.

Guilt in the Bennett case is beyond dispute. In preparation for a move to Florida, Mr. and Mrs. Bennett contacted the appellant and arranged for her to sell much of the furniture and other objects accumulated by them during their 40 years of marriage. The appellant was to receive a 10 percent commission on gross sales. Two sales were in fact conducted, the first on July 22 and 23,1978, and a follow-up sale on July 30. The proceeds from the sale were received by the appellant and deposited into her business account. Four days later, the appellant made out a personal check to the Bennetts in the amount of $3,949.61. This was indisputably the correct amount. Unfortunately, the check bounced and bounced again and was never honored. Although the appellant testified about her good intentions and unanticipated difficulties, she was found guilty of embezzlement of $3,949.61.

Following her conviction on July 17,1979, sentencing was scheduled for September 25, 1979. At the sentencing hearing, the State called two witnesses, by way of supplementing and elaborating upon matters brought out in the presentence investigation. One of these was Detective Everett C. Oberheim of the Major Crimes Section of the Metropolitan Police Department of Washington, D.C. He indicated that he had had occasion to investigate the appellant’s antique business and that he had talked with approximately 50 persons who apparently had placed goods with the appellant on consignment and still had unpaid claims as a result of the consignment sales.

The second witness called by the State was a Mrs. Edgar Swagee, a resident of Bethesda, who testified that in December of 1977 she had lost over $1,000 at the hands of the appellant under circumstances very similar to those involved in the Bennett case.

With evidence as to these additional dealings before him, the sentencing judge approached the subject of restitution and probation. It was clear that the restitution implicated the Swagee case, which had never been charged or tried, as surely as it did the Bennett case, not to mention the numerous unpaid cases from the District of Columbia:

"It is the sentence of this Court that you be committed to the Department of Corrections for a period of three years. I’m going to suspend the sentence, and I do it only for one reason, precisely what you have said, that to put you in jail is not going to get them their money, but if I hang it over your head, maybe it’s going to force you to get it.
What could you think when you had the lady who just testified, Mrs. Swagee. Here is a widow who in order to get funds trusted you with the goods she has accumulated over her life, and you take the funds from those and don’t pay them over directly to her? The people who go to Florida, granted they may be in a sufficient financial position that the hurt is not as great to them, but it is no less.”

The final order of restitution clearly suggested that the claims investigated by the Metropolitan Police Department and alluded to by Detective Oberheim were to be the subject of restitution as well, as ultimately determined by the probation department:

"Now, the condition of the suspension of that [sentence and the placing of you on] probation is that restitution be made in this amount in this case in the full amount of $3,949.61; that thereafter a plan of restitution be devised through the Department of Parole and Probation that you make additional payments of restitution to all of the valid claims in this matter.
Now, that means that you are going to be required to gain employment and to be determined by the Probation Department is how much of that money can be set aside and put generally into a fund.
Since I cannot have the testimony as it applies to enhancement of sentence from the detective, I cannot make out a total amount, and I strongly suspect that there cannot be enough income to pay them off, but it can be paid into a fund to be disbursed to them.”

Appellant’s counsel sought clarification from the court as to what claims were being made the subject of the restitution order and as to what period of time was covered by these claims. The court’s attempted clarification was open-ended in the extreme, not limiting restitution to the Bennett case, not limiting the "other claims” to those involving citizens of Maryland, not limiting the claims to those accruing within a specified time period and not limiting the liability of the appellant even to those incurred in the antique business:

"THE COURT: I’m talking about all of the — let me rephrase it — claims; but to all of those persons whom she had directly taken money from, not just claims against the corporation but whom she had directly taken goods either on consignment of under the circumstances as they occurred in this incident when she was acting in a fiduciary agent capacity taking the money that belonged to somebody else and was not turned over to them. And she is to make payments on all of those.
MR. TSITOURIS: I realize what the Court is trying to do, but I’m trying to get a time limitation. Are we talking about the time Mason Antiques has been in business?
THE COURT: She is to make restitution on all of the people that she personally has cheated.
MR. TSITOURIS: I have some difficulty regarding that.”

Three separate provisions of Maryland statute law are here pertinent. The more general and basic power of a court to place conditions on the granting of probation is contained in Art. 27, § 641A, which reads, in part:

"Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper.”

The subject of restitution is dealt with generally by Art. 27, § 640 (b):

"(b) Restitution may be ordered upon conviction of certain crimes. — Upon conviction for a crime where property of another has been stolen, converted, unlawfully obtained, or its value substantially decreased as a direct result of the crime, or whether the victim suffered actual medical expenses, direct out of pocket losses, or loss of earning as a direct result of the crime, the court may order the defendant to make restitution in addition to any other penalty provided for the commission of the crime.”

Even more specifically, Art. 27, § 145 dealt with restitution to the owner in cases involving fraud, false pretenses, embezzlement, etc. It read as follows:

"When any person shall be convicted of any statutory felony or misdemeanor, for the false or fraudulent obtention or embezzlement, secreting or making way with goods, chattels, valuable effects, money or securities, the court before whom any such conviction shall be had may award restitution to the real owner thereof; provided, however, that no bona fide holder thereof shall be obliged to surrender up the same.” (Emphasis added).

The issue now before us is one of first impression. Although the Maryland statutes do not, in terms, preclude the granting of restitution for other crimes not charged or proved, the clear sense of § 640 (b) and § 145 seems unmistakably to contemplate restitution for the crimes as to which incarceration might otherwise be imposed. In this regard, the experience and wisdom of our sister common-law jurisdictions helps to persuade us that this is clearly the correct result. The precise situation was before the Supreme Court of Illinois in People v. Mahle, 57 Ill. 2d 279, 312 N.E.2d 267 (1974), with the court there holding, at 312, N.E.2d 271:

"We do not believe that the conditions of restitution may extend to matters unrelated to the charges before the court. The trial court was not empowered [under the Illinois statutes] to order restitution of sums extraneous to the informations before it.”

In State v. Eilts, 23 Wash. App. 39, 596 P.2d 1050 (1979), the Court of Appeals of Washington was dealing with a situation wherein a defendant had been convicted of nine counts of stock fraud and selling unregistered securities but was ordered, as a condition of probation, to "make full restitution to all — about 100 — persons who purchased stock from him.” In striking down this order of restitution as beyond the power of the trial court to impose, the Court of Appeals said, at 596 P.2d 1053:

"The State contends that '[t]he "crime in question” in this instance is fraud in the offer and sale of a security to the public.’ It reasons that all investors who purchased stock from Eilts are victims of the 'crime in question,’ and that the named count victims are only representative of the entire class of victims. We find no merit in the State’s reasoning.
The State has not proved — and Eilts does not admit — that he acted with fraudulent intent toward the unnamed purchasers of American General Industries stock. Although they are victims in the sense that they exchanged their money for what turned out to be worthless stock, it cannot be said that they are the victims of a 'crime.’ ”

In State v. Reese, 124 Ariz. 212, 603 P.2d 104 (1979), the Court of Appeals of Arizona dealt with a situation wherein a defendant was ordered to make restitution not simply in the burglary for which he had been convicted but also with respect to other victims, as to some of whom charges had been dismissed and as to others of whom charges had never been filed. In striking down that order of restitution, the Court of Appeals stated, at 603 P.2d 107:

"Under our system it would be untenable to incarcerate or impose a fine upon a defendant without an adjudication of guilt in accordance with due process of law. Although restitution to a victim of crime is not a criminal punishment exacted by the state, it must nevertheless rest upon due process of law. Therefore, it is equally untenable to impose a requirement of restitution upon a defendant whose responsibility for the crime has neither been admitted nor established in accordance with due process. The requirement that a defendant make restitution under such circumstances would reduce our system of justice to a potentially dangerous facade and convert the criminal court into a collection agency with none of the requirements of due process found even in a civil money judgment proceeding.”

In People v. Richards, 131 Cal. Rptr. 537, 552 P.2d 97 (1976), the Supreme Court of California dealt with a cognate situation. There a defendant was ordered to make restitution not only in the case on which he was convicted but also in a companion case on which he had been acquitted. Although factually that situation could be distinguished from the one at bar, the general philosophical observations of Justice Mosk are, nonetheless, pertinent. He said for the court, at 552 P.2d 101:

"Disposing of civil liability cannot be a function of restitution in a criminal case. To begin with, the criminal justice system is essentially incapable of determining that a defendant is in fact civilly liable, and if so, to what extent. A judge may infer from a jury verdict of guilt in a theft case that a defendant is liable to the crime victim. But a trial court cannot properly conclude that the defendant owes money to a third party for other unproved or disproved crimes or conduct. A party sued civilly has important due process rights, including appropriate pleadings, discovery, and a right to a trial by jury on the specific issues of liability and damages. The judge in the criminal trial should not be permitted to emasculate those rights by simply declaring his belief that the defendant owes a sum of money.”

We hold that in this case the restitution ordered in the amount of $3,949.61 to Mr. and Mrs. Bennett was legal but that the open-ended order to make additional restitution to a wide variety of "victims” to be determined by the probation department and in amounts to be determined by the probation department exceeded the sentencing authority of the court.

Order to make restitution in excess of $3,949.61 as a condition of probation vacated; costs are not reallocated as part of the judgment of this Court pursuant to Md. Rule 1082 f.

      . By 1978 Md. Laws, ch. 849, this then-existing § 145 was repealed (not re-enacted) as part of the general consolidation and revision of the theft-related offenses. The new theft law, repealing § 145, was effective July 1,1979. It has no effect, however, on the instant case, since § 7 of ch. 849 makes it clear that "this Act shall be construed only prospectively and the provisions of this Act apply only to offenses committed on or after the effective date of this Act. . . .” Since the offenses were committed in July, 1978, the Act does not apply.

      . In view of our disposition of the case on the above ground, it is unnecessary to deal with the appellant’s additional contention that the order of restitution offended her right to due process because of its vagueness and because of its delegation of authority to the probation department. In this regard, however, see Cothron v. State, 377 So. 2d 255 (Fla. Dist. Ct. App. 1979):
      "[Tjhe trial court erred in imposing a requirement that appellant pay restitution in an amount to be determined by his probation supervisor.
      It was improper for the trial judge to delegate to the probation supervisor the authority to determine the amount of restitution appellant must pay. . . .Appellant is entitled to a hearing before the trial court to determine the amount of restitution.”
      And see Cox v. State, 445 S.W.2d 200 (Tex. Crim. App. 1969), at 201:
      "The condition that the appellant 'Make restitution as and when directed by the probation officer * * *’ is an unauthorized delegation of authority in that it permitted the probation officer to determine the terms of probation and a failure to comply cannot be used to revoke probation. The conditions of probation should be clearly set out in the probation order by the judge granting probation so that the probationer and the authorities may know with certainty what the conditions are,”


author: Wilner, J.,

text:
    BRYANS ROAD BUILDING & SUPPLY CO., INC. v. ELVIN GRINDER, Ind. and t/a Grinder Construction et al.
    [No. 1222,
    September Term, 1979.]

      Decided June 13, 1980.

      The cause was argued before Moylan, Melvin and WlLNER, JJ.

      John Lund Keller, with whom was Gary Gasparovic on brief, for appellant.

      Christopher C. Henderson, with whom was Edward S. Digges on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

The "nice sharp quillets of the law” are both weapon and shield, thrust and parry. Or, as appellant would say in this case, "my technicality prevails over your technicality.” In the end, it is the Court’s technicality, unrecognized as yet by either party, that will prevail.

This proceeding commenced on May 1, 1978, when appellant, a building supply company, sued Elvin Grinder, individually and trading as Grinder Construction, in the Circuit Court for Charles County, for some $5,900. The suit was for goods sold and delivered on a long-standing open account. Attached to the Declaration was a motion for summary judgment, accompanied by an affidavit and copies of monthly statements sent to Elvin Grinder showing the periodic status of the account and the final balance due.

On June 20, 1978, Mr. Grinder, individually, filed a general issue plea to the Declaration and an answer to the motion for summary judgment. In this answer, Grinder asserted that, since May 1, 1973 (a date earlier than any of the purchases sued upon), he had made all purchases from appellant on behalf of a corporation known as G. Elvin Grinder Construction, Inc., of which he was president, that he never guaranteed the corporate obligation personally, and that he was not, therefore, liable for its indebtedness in his individual capacity. With this assertion, he sought to defeat summary judgment on the basis of having raised a genuine dispute of material fact. The court agreed, and, on June 29, 1978, denied appellant’s motion.

Appellant responded on August 15, 1978, with an Amended Declaration in which it (1) expanded its action against Grinder individually with a claim that the corporation was his "alter ego,” that Grinder undercapitalized the corporation during its corporate life, and that he caused it to incur debts when there was no reasonable possibility that it had sufficient assets to cover those debts, and (2) brought the corporation in as an additional defendant. General issue pleas were filed to the Amended Declaration on behalf of both Grinder individually and the corporation.

Appellant then propounded rather extensive interrogatories to both defendants, seeking detailed information about their relationship and the fiscal affairs of the corporation. After a three-month wait, the defendants served answers that gave virtually no information. Most of the questions were not answered at all. Appellant, on February 23, 1979, moved for summary judgment against the defendant corporation, relying primarily upon Grinder’s admissions contained in his answer (and affidavit) filed in response to appellant’s earlier motion against him. As the corporation was penniless and defunct, no one opposed this new motion; and, on May 25, 1979, it was routinely granted. On that day, judgment in the amount of $5,912.68 was entered against G. Elvin Grinder Construction, Inc. Trial of the case against Grinder individually had previously been set for June 4,1978, and no attempt was made to disturb that proceeding. No further pre-trial pleadings were filed.

At trial, appellant’s position was that the account in question was opened in 1961, that it was in the name of Elvin Grinder, individually, trading as Grinder Construction, and that it was never changed to or superseded by a corporate account. Appellant maintained that all purchases were made on this one account, that there never was a corporate account, and that appellant was never informed of the corporate existence. This was significant, appellant argued, because of its policy of not extending credit on corporate accounts without individual guarantees.

Grinder’s response, and its defense to the claim, was that, by taking judgment against the corporation, appellant had, at least implicitly, recognized the existence of the corporation and the status of the account in question as a corporate one. Otherwise, he argued, appellant had no right to a judgment against the corporation. Thus, by seeking and taking that judgment, appellant was estopped from claiming that the account was an individual one and pursuing judgment against Grinder individually. As counsel for Grinder said in summation, "the proceedings narrow down to a rather narrow issue, was there a corporate account or not.” It was in the context of that "narrow issue” that he argued the relevance of the corporate judgment.

The court was more precise. It saw the case as involving two quite different issues: (1) was the individual account ever replaced with a corporate one, and (2) in any event, if Grinder, individually, was acting as agent for the corporation and the corporation at the time was an undisclosed principal, did the taking of judgment against the principal constitute an election sufficient to preclude judgment also against the agent? The court initially answered both questions in the negative and thus awarded judgment against Grinder individually, notwithstanding the prior judgment against the corporation. It found that appellant was unaware of the corporate existence and relied upon Grinder’s individual credit and integrity. In effect, it concluded that even if Grinder was acting in the capacity of an agent, his principal — the corporation — was undisclosed insofar as appellant was concerned.

Three days later, Grinder moved to strike the judgment, picking up the issue elucidated by the court and contending that the court had erred in rejecting his theory of estoppel. After a hearing, the court concluded that the matter was controlled by the doctrine of "election” enunciated most recently in Traylor v. Grafton, 273 Md. 649 (1975), and, ignoring appellant’s argument that that defense was not properly before the court, struck the judgment and entered judgment in favor of Grinder. In doing this, the court correctly stated the substantive law, but wrongfully applied it.

(1) Appellee’s Technicality

In Codd Company v. Parker, 97 Md. 319, 325 (1903), the Court made clear that

"where an agent contracts in his own name, without disclosing his interest, though in fact for the exclusive benefit of another person, who is afterwards discovered, the creditor may sue either, but after he has elected whom to sue and has sued, either the agent or principal to fínal judgment, he cannot after that sue the other, whether the first suit has been successful or not.” (Emphasis in the original.)

This doctrine of "election” was explained in somewhat greater detail in Hospelhorn v. Poe, 174 Md. 242 (1938), and again in Traylor v. Grafton, supra, 273 Md. 649. See also Wheaton Lumber Co. v. Metz, 229 Md. 78 (1962). The "bottom line” of it, as stated in both Hospelhorn (p. 261) and Traylor (p. 675) is this:

"If the third party contracts] with an agent for an undisclosed principal, he may hold the agent or, upon discovery, the principal, but the third party cannot recover from both. If the third party elects to hold the agent, the principal is discharged; and, conversely, if he elects to hold the principal, the liability of the agent is at an end.” (Emphasis supplied.)

The third party is entitled to join both principal and agent as co-defendants in a single action, and he may thus proceed against both. The election does not occur "until he takes a fínal judgment against the one he thus elects to hold to the exclusion of the other.” (Emphasis supplied.) Hospelhorn at 259; Traylor at 674. It is thus the final judgment that constitutes the election and bars recovery against the alternative defendant.

This doctrine — appellee’s "technicality” — can come into play in a number of factual settings. In Codd Company v. Parker, supra, the plaintiff had recovered judgment against the principal before suit was ever filed against the agent. The defense of discharge based on election thus existed at the time the second suit was filed. By way of contrast, in Wheaton Lumber Co., supra, principal and agent were joined as co-defendants in the same action, but judgment against one was entered upon pre-trial motion. In that situation, as in the one sub judice, the defense of election (and thus of discharge) arose during the proceeding and did not exist ab initio. This distinction is critical when considering,

(2) Appellant’s Technicality

It will be recalled that Grinder’s only plea to the Declaration and Amended Declaration was the general issue — "not indebted as alleged.” Maryland Rule 342 b. 3 provides that "[u]nder a general issue plea any matter of defense shall be admissible in evidence, except such matters as must be specially pleaded pursuant to section c of this Rule. ” (Emphasis supplied.) Section c. 1 of Rule 342 states, in relevant part:

"The following matters of defense must be specially pleaded in an action ex contractu:
(e) Pleas Puis Darrein Continuance Any defense on the merits arising after suit brought.” (Emphasis on "must” supplied.)

This part of Rule 342 c serves merely to codify and perpetuate the common law plea puis darrein continuance (since the last continuance), which has been accepted as part of our system of common law pleading at least since Agnew v. Bank of Gettysburg, 2 H. & G. 479 (1828), where, at page 492, the Court of Appeals stated:

"The cases are very conclusive to shew, that where matter of defence arises after the institution of the suit, it must in general be specially plead, and cannot be given in evidence under the general issue, as in the case of of [sic] a release given after the commencement of the suit, or a reference and award made pendente lite, or hostile alienage happening after the commencement of the action, or coverture of the plaintiff after action brought, or any matter of abatement occurring after suit brought, or after plea pleaded to the merits. All other matters which go to the foundation and gist of the plaintiffs action, at the time of its commencement, with some very special exceptions, which it would be unnecessary to enumerate, may be given in evidence under the general issue. Defences arising after the commencement of the action should be plead puis darrein continuance, or against the further maintenance of the suit.” (Emphasis supplied.)

This "doctrine,” the court said at p. 492, is "founded in justice, and calculated to prevent surprise.” It served not only to prevent the defendant from offering evidence of the new circumstance raised in defense (expiration of the plaintiff bank’s charter after suit was filed), but also from availing himself of the fact to nonsuit the plaintiff. At p. 492: "Whether the bank was dissolved or not pending the suit, was not in issue, and the fact of the dissolution of the charter having taken place after the commencement of the action, was not pertinent to the issue, and was not in evidence before the jury.” (Emphasis supplied.)

The Court of Appeals has never departed from this ancient doctrine in its decisional law. See Semmes v. Naylor, 12 G. & J. 358, 361 (1842); Bank of U.S. v. Merchants Bank, 7 Gill 415, 428-29, (1848); Wheaton Lumber Co. v. Metz, supra, 229 Md. 78, 86. Indeed, in adopting (or publishing) Maryland Rule 342 c. 1 (e), the Court made a footnote reference to Poe’s Pleading and Practice (6th ed.), § 621, which states rather succinctly, 'Plea setting up defenses on the merits arising after suit brought. — These defenses must always be specially pleaded, or evidence of them will be rejected.”

It is evident, therefore, that, if the election doctrine was applicable in the first instance, as the court below believed, so was Maryland Rule 342, which would, in that event, have served to preclude appellee from relying on the doctrine. But, as we earlier noted, there is yet to be considered,

(3) The Court’s Technicality

In quoting from Codd, Hospelhorn, and Traylor (see ante, pp. 4, 5), we have carefully underscored the language which makes clear that the election between agent and undisclosed principal does not occur until the plaintiff takes fínal judgment against one or the other. There has never, in the Maryland cases, been any question about that. Until a final judgment, the plaintiff may proceed merrily against both agent and principal.

In such a case, of course, multiple claims — independent claims against two or more parties — are involved. Tedrow v. Ford Motor Co., 260 Md. 142 (1970); Moritz v. Church of Jesus Christ, 266 Md. 220 (1972). This brings into play Maryland Rule 605 a (Multiple Claims — Judgment Upon), which provides:

"Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a fínal judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims. ” (Emphasis supplied.)

The record before us reveals that no "express determination” of the type referred to in Rule 605 a was made with respect to the summary judgment taken against the corporation; nor does it appear that there was "an express direction for the entry of [such] judgment.” It was therefore not a /inaljudgment when entered, but was subject to revision until the case against Grinder individually was resolved by final judgment. See Tedrow v. Ford Motor Co., supra, 260 Md. 142; Leach v. Citizens Bank of Md., 17 Md. App. 391 (1973); also Associated Realty Co. v. Kimmelman, 19 Md. App. 368, 374 (1973): "Under Md. Rule 605 a ... all judgments are subject to revision in a multi-claim or multi-party suit until the claims of all the parties against each other have been disposed of, absent both an express determination that there is no just reason for delay and an express direction for the entry of judgment.” (Footnote omitted.)

In the circumstances of this case, therefore, appellant’s election as between the agent and the principal remained open and viable at the conclusion of its case against the agent, and was not foreclosed by the mere entry of a revisable, non-final summary judgment against the principal. The election doctrine, which formed the basis of the court’s ultimate ruling, was simply not applicable.

It is inferable from what the Court said in Hospelhorn, 174 Md. at 259, 261, that, where both principal and agent have been joined in a single action, the proper time for election is at the end of the case — before any final judgments are entered. The existence of a judgment previously entered on motion presents somewhat of a "wrinkle” in this approach, of course, but not a significant or fatal one, so long as that judgment is not final. It would have been possible, and, we think, proper, for appellant to have made its election — to rest on the corporate judgment and forego the individual one or, conversely, to request the court to strike the corporate judgment and proceed against Grinder individually — at the conclusion of trial. That procedure would have preserved the letter and the substance of the Cobb-Hospelhorn doctrine without doing the slightest violence to the summary judgment procedure or to Maryland Rules 342 or 605.

Because this was not done, the record before us is, from a technical and formal point of view, unclear. Although we have serious doubt that appellant intended to opt (or, if given the opportunity, would actually opt) to hold a defunct and worthless corporation in lieu of the individual whose credit supported the account, it has taken no affirmative steps to forego the judgment against the corporation. With neither party, nor the court, fully appreciating the problem until both judgments had been entered, it would be a triumph of legal fiction over justice for us to assume, as ultimately did the trial court, that appellant made a knowing election in favor of the penurious defendant.

In light of this record, this seems an appropriate case in which to invoke Maryland Rule 1071 a and to remand the matter, without affirmance or reversal, in order to permit appellant to make its election. If, at a proceeding held for that purpose, it opts to hold Grinder individually, the court should reinstate the original judgment entered against that individual and strike the judgment against the corporation. If, perchance, appellant should elect to hold the corporation, the existing judgments should stand.

Case remanded to Circuit Court for Charles County without affirmance or reversal pursuant to Maryland Rule 1071 a for further proceedings in accordance with this opinion; costs to be divided equally between the parties.

      . See Shakespeare’s Henry VI, Part I, Act II, Scene IV, response of the Earl of Warwick.

      . The effect of this, the parties conceded at oral argument, was to dispose of all issues in the case, including the second claim against Grinder individually, made in the Amended Declaration. We do not perceive, therefore, any problem, in this regard, under Maryland Rule 605a. See, however, our discussion infra re Rule 605 a.

      . Some commentators suggest that the doctrine in question is not really one of election. See Seavey on Agency, Hornbook Series, § 79, and compare Restatement of Agency 2d § 210 and Comment thereto. Whether the doctrine rests upon a theory of election between alternatives or on some other basis is not important in this case; the effect would be the same in either event.

      . The actual holding in Wheaton was that the election doctrine of Codd and Hospelhorn was not applicable. The plaintiff (Wheaton) had initially sued two defendants on an open account. In count one, it alleged that Rothman had been the purchaser; in count two, it alleged that Metz and Mood, trading as Best Window Co., had purchased the goods through Rothman, their agent. Wheaton recovered a default judgment against Rothman. Subsequently, as the result of discovery, Wheaton learned that the real purchaser may have been a corporation known as Best Construction Company, to which Best Window Co. had transferred its business; and it then filed an amended declaration adding the corporation. On the day of trial, the court granted defendants’ motions for summary judgment on the premise that, by taking judgment against Rothman, the agent, plaintiff had made an election and was not entitled to proceed against the alleged principals.
      The Court of Appeals reversed on the grounds that (1) with respect to Best Window Co., the account was in its name, and it was therefore not an undisclosed principal to which the election doctrine applied; and (2) as to Best Construction Company, Wheaton was not aware of its existence at the time it took judgment against Rothman, and the election doctrine applies

        only when the plaintiff knows of the previously undisclosed principal when he takes a final judgment.

        See, however, Garfinkel v. Schwartzman, 253 Md. 710 (1969), where principal and agent were also joined in a single action. At the conclusion of the case, final judgment was entered against the principal, but, on directed verdict, in favor ofthe agent. On appeal by the plaintiff, the Court held that the plaintiff could not recover from both, and that, by taking the judgment against the principal, the agent’s liability was extinguished. See 253 Md. at 727, 728.

      . This statement had special relevance, perhaps, at a time predating the liberal discovery rules that now apply, in particular the device of the "continuing” interrogatory. See Maryland Rule 417; Pare v. Rodrique, 256 Md. 204 (1969). In that regard, it is important to note that among the interrogatories (continuing in effect) propounded by appellant to Grinder was No. 20: "State all defenses which you have to this suit on the open account and/or all reasons why you state you are not indebted as alleged.” Grinder’s answer, filed February 22, 1979, and never supplemented or amended, was merely, "All personal accounts with [appellant] are paid in full.” No mention was ever made of the discharge defense triggered by the summary judgment against the corporation.

      . Grinder defends his failure to plead the defense specially on the ground that appellant suffered no prejudice from it — that appellant was obviously aware that it had taken judgment against the corporation and was not surprised by Grinder’s exposition of that fact.
      There is a subtle, but nonetheless significant, difference, however, between awareness of a fact and knowledge that a defense based upon that fact will be interposed. This distinction was at least implicitly recognized in Agnew: the bank was obviously aware that its charter had expired during the pendency of the litigation, but it was not forewarned that the defendant intended to use that fact to defeat its claim. We perceive no greater, or lesser, prejudice there than here.

      . The Court did not expressly state this, but it would seem to be a reasonable inference. See Reporter’s Notes to Restatement of Agency 2d, § 210, Appendix (1958), p. 285, where Hospelhorn is cited for the proposition that "principal and agent can be joined, with the election to be made at the end of the trial.” See also 2 Mechem on Agency, §§ 1758,1759.


text:
    PSYCHIC RESEARCH AND DEVELOPMENT INSTITUTE OF MARYLAND, INC. v. MABEL GUTBRODT
    [No. 1224,
    September Term, 1979.]

      Decided June 13, 1980.

      The cause was argued before Gilbert, C. J., and Moore and Couch, JJ.

      Carl A. Durkee, with whom were Clarence M. Thomas and Durkee, Thomas & Hahn on the brief, for appellant.

      Max D. Miller and Charles R. Boutin, with whom were G. Arnold Pfaffenbach and Lentz & Hooper on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

— PROLOGUE —

A corporation is an artificial being having a life span as long as the State permits and being able to do only that which the State allows. The corporation is born in the minds of men, with an attorney usually acting as midwife, and with subsequent legitimization by the State.

Experience tells us that a corporation comes into existence when the Articles of Incorporation or Charter, are accepted by the State Department of Assessments and Taxation (Department). The corporation dies when: the Attorney General successfully maintains a civil suit to forfeit the corporate charter on the grounds that the corporation is under the control of a person engaged in organized crime, Corp. Art. § 1-405; it is voluntarily dissolved, Corp. Art. §§ 3-401 — 3-412; twenty-five percent of its stockholders successfully petition a court of equity to dissolve the corporation, Corp. Art. § 3-413 (a); a stockholder’s suit is successful in equity on the basis of fraud or that for "a period which includes . .. two consecutive annual meeting dates,” the stockholders have failed to elect directors, Corp. Art. § 3-413 (b); a stockholder’s or creditor’s suit in equity establishes that the corporation is "unable to meet its debts as they mature in the ordinary course of its [(the corporation’s)] business,” Corp. Art. § 3-413 (c); the Governor issues a proclamation declaring the charter to be repealed, annulled, and forfeited on the basis that the corporation failed to pay its taxes to the State or to file an annual report with the Department, Corp. Art. § 3-503; the Attorney General successfully maintains a suit in equity on grounds that the corporation abused, misused, or failed to use its powers in a manner that is in the public interest, and the court enters an order declaring the charter forfeited and the corporation dissolved, Corp. Art. § 3-514.

Like the Man from Nazareth, and unlike human beings, a corporation that has "died” as a result of its failure to pay taxes or file an annual report, may be resurrected at any time. The method of breathing new life into a deceased corporate body requires merely the filing of Articles of Revival with the Department. Corp. Art. §§ 3-508 to 3-510, inclusive.

Once the Articles of Revival are accepted by the Department, then "all contracts or other acts done in the name of the corporation while the charter was void are validated,” provided the corporation was otherwise empowered to enter into the contracts or to perform the "other acts.” Corp. Art. § 3-513 (1). All rights and assets of the corporation, except those that were sold or "otherwise divested” during the time "the charter was void, are restored to the corporation to the same extent they were held .. . before the expiration or forfeiture of the charter.”

This appeal asks that we reverse a declaratory decree of the Circuit Court for Harford County (Cameron, J.) in which the chancellor held that a bequest to a defunct corporation was void in that the corporation was not "in existence” at the time of the testatrix’s demise.

— THE FACTS —

The Last Will and Testament of Lois G. Hensle, who died on May 30, 1978, provided in "item VI” that Psychic Research and Development Institute of Maryland, Inc., (Psychic) was the residual legatee of her estate, if "in existence at the time of’ the testatrix’s death. Item VI went on to provide that "should ... [Psychic] not be in existence” the rest and residue of Ms. Hensle’s estate was to go to her mother, Mabel Gutbrodt, if Mabel survived the testatrix.

Psychic’s corporate charter was forfeited on July 3, 1974, by Proclamation of the Governor "for failure to file necessary reports and/or pay taxes due thereon.” Six days after Ms. Hensle died, Psychic filed Articles of Revival. Corp. Art. § 3-508. Patently, Psychic was without de jure corporate status at the time of the testatrix’s demise.

On May 16, 1979, Mabel Gutbrodt filed a bill of complaint in the circuit court seeking a declaratory judgment against Psychic and E. Edward Toscani, the personal representative of the estate of Ms. Hensle, in which Mrs. Gutbrodt asserted that she was entitled to the residuary estate, not Psychic. Mrs. Gutbrodt brought the bill because both she and Psychic claim the residuum, and the personal representative refused distribution to either claimant absent a judicial determination as to the proper distributee.

By motion, three months after the filing of the complaint, Bernadene Grosswiler was substituted as the party-plaintiff for Mrs. Gutbrodt, who had died in the interim. Ms. Grosswiler filed a supplemental bill of complaint.

Following discovery, Psychic moved for summary judgment before Judge Cameron. At the conclusion of counsel’s exposition, the judge denied Psychic’s motion. Simultaneously, the court declared Ms. Grosswiler to be the rightful legatee under the will.

— THE ISSUE —

Obviously the question before us is, was Psychic entitled to receive the bequest under Ms. Hensle’s will? Underlying that question are two subissues: 1) was Psychic "in existence” at the time of Ms. Hensle’s death? 2) does the filing of Articles of Revival, after the death of the testatrix, resurrect ab initio Psychic from the dead? For the reasons stated infra, we answer the question and both subquestions in the negative.

— THE LAW —

Corporation Art. § 3-503 (a) provides that, if a corporation fails to file an annual report or to pay its taxes when due, the Comptroller of the Treasury shall certify to the Governor a list of the delinquent corporations. In turn, "the Governor shall issue a proclamation declaring that the charters of the corporations are repealed, annulled, and forfeited, and the powers conferred by law on the corporations are inoperative, null, and void as of the date of the fírst publication of the proclamation, without proceedings of any kind either at law or in equity.” (Emphasis supplied.) Corp. Art. § 3-503 (c). Once the proclamation is issued, "the forfeiture put[s] an end to the corporate existence.” Callahan v. Clemens, 184 Md. 520, 528, 41 A.2d 473, 476 (1945). The "organization ...is not legally in existence as a corporation and cannot function as a corporation.” (Emphasis supplied.) Atlantic Mill & Lumber Realty Co. v. Keefer, 179 Md. 496, 499-500, 20 A.2d 178, 180 (1941).

Whatever the law may be elsewhere, in this State a corporation whose charter has been forfeited immediately becomes a non-entity, Callahan v. Clemens, supra; Atlantic Mill & Lumber Realty Co. v. Keefer, supra, a lifeless corpus that may be "born again” if certain statutory requirements are met. Corp. Art. § 3-508 through § 3-510.

Obviously aware that corporations sometimes wither and die, Ms. Hensle provided for that possibility in her will. She named an alternate beneficiary in the event of Psychic’s nonexistence at the time of the testatrix’s demise. Indeed, she was even careful to have a second alternate beneficiary. Here and in the trial court Psychic labors to avoid the plain language of the will. The residuary was to pass to Ms. Gutbrodt "[s]hould Psychic .. . not be in existence at my death.” Callahan v. Clemens, supra, makes clear that forfeiture brings a halt to corporate existence. Hence, Psychic was not "in existence” at the time Ms. Hensle died.

Psychic points to Corp. Art. § 3-513 (2) which provides that upon revival of the corporate existence "[a]ll the assets and rights of the corporation, except those sold or those of which it was otherwise divested while the charter was void, are restored to the corporation to the same extent that they were held by the corporation before the expiration or forfeiture of the charter.” (Emphasis supplied.) Psychic asserts that the statute "restores to the corporation all assets and rights upon revival and treats the revived corporation as having been in continuous existence during forfeiture.” We have a different view.

In Cloverfields Improvement Association, Inc. v. Seabreeze Properties, Inc., 32 Md. App. 421, 362 A.2d 675 (1976), aff'd, 280 Md. 382, 373 A.2d 935 (1977), we were faced with an analogous situation. There, a corporation, whose charter had been forfeited, purported to assign certain property to Cloverfíelds. Subsequently, the directors of the defunct corporation, acting as trustees, see Corp. Art. § 3-516 (1975, 1979 Cum. Supp.), conveyed the same property to Seabreeze. Cloverfíelds averred that, notwithstanding the defect in the conveyance to it, revival of the corporate charter validated the assignment ab initio. Cloverfíelds relied upon the predecessor of Corp. Art. § 3-513 (2). We rejected that argument, stating: "We think former [Md. Ann. Code art. 23,] § 85 (d) to be clear and unambiguous in that the revived corporation may only take title to those assets which were legally not disposed of during the period of corporate demise.” 32 Md. App. at 434,362 A.2d at 684.

Unsatisfied with our decision, Cloverfíelds sought and obtained a writ of certiorari, to the Court of Appeals. Following a scholarly analysis of the forfeiture provisions, Judge Smith, speaking for the Court said:

"We agree with the conclusion of the Court of Special Appeals:
We think former § 85 (d) to be clear and unambiguous in that the revived corporation may only take title to those assets which were legally not disposed of during the period of corporate demise. Inasmuch as the surviving trustees had, in 1971, validly conveyed and assigned the very property [Cloverfields] thought it had acquired in 1965, the total effect of the revival in this case is naught. The act of revival cannot divest a bona fíde purchaser of his title.’ Id. 32 Md. App. at 434-35.
Cf. Redwood Hotel, Inc. v. Korbien, 197 Md. 514, 80 A.2d 28 (1951). In that case intervening rights did not exist as here. The holding there was consistent with that in J.B. Wolfe, Inc. v. Salkind, 2 N.J. 312, 70 A.2d 72 (1949), where Chief Justice Vanderbilt said that the objects of statutes such as ours are solely the raising of revenue for the State, the police aspects being covered by a provision (similar to ours) making it unlawful to 'exercise or attempt to exercise any powers under the charter of any such corporation after such proclamation shall have issued,’ and refers to cases 'uniformly holding that a reinstatement of a repealed charter relates back to the date of the proclamation of repealer and validates corporate action taken in the interim.’ Our statute validates such action, but not where other rights have intervened because it states speciGcally that the property and rights of which the corporation has been divested prior to its revival are not vested again in the corporation. To hold otherwise would be to fail to heed the rules of statutory construction.” (Emphasis supplied.) 280 Md. at 398, 373 A.2d at 943.

Cloverfíelds is dispositive of the instant case. Psychic was not "in existence” at the time of Ms. Hensle’s death with the result that the alternate bequest to Mrs. Gutbrodt became operative.

The Articles of Revival can spontaneously generate life in a dead corporation, but they cannot restore to it rights that passed to others during the period of the corporate abiosis. The subsequent revival of Psychic did not again vest property and rights in the corporation which were divested during the period of forfeiture. We hold that the intervening right of Mrs. Gutbrodt takes precedence over the claim of Psychic. Judge Cameron correctly declared Mrs. Gutbrodt’s estate to be the rightful legatee under the residuary clause of Ms. Hensle’s will.

Decree affirmed.

Costs to be paid by the appellant.

      . Maryland Corporation and Associations Code Ann. (1975) § 1-205.

      . Corp. Art. § 3-510 mandates that "la]ll State and local taxes,” except real estate taxes, "and all interest and penalties due” must be paid. The "taxes” include those which would have been due had not the charter been forfeited. The Statute of Limitations may not be interposed as a defense against payment of the taxes.

      . Ms. Hensle also provided for a third alternative legatee in the event Psychic was not in existence and her mother predeceased her. See, however, Md. Est. and Trust Code Ann. (1974) § 4-403.

      . Quoted from a certification of annullment and revival issued by the Department on March 29, 1979.


author: Thompson, J.,

text:
    JOHN AUSTIN RUSTIN v. STATE OF MARYLAND
    [No. 1247,
    September Term, 1979.]

      Decided June 16, 1980.

      The cause was argued before Thompson, Moore and Mason, JJ.

      Michael E. Marr, Assigned Public Defender, with whom was Joseph L. Evans, Assigned Public Defender, on the brief, for appellant.

      Ray E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Ann S. Harrington, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

John Austin Rustin, the appellant, was convicted by a jury in the Circuit Court for Montgomery County, of robbery with a dangerous weapon and use of a handgun in the commission of a felony. He was sentenced to five years on the robbery conviction and five years on the handgun conviction, the sentences to run consecutively.

I Facts

Kevin H. Boon, a cashier at the Maple Delicatessen, testified that on the night of March 9, 1979, three individuals entered the store. One of them approached him with a shotgun drawn and ordered him to lie on the floor. The gunman, subsequently identified as Kevin Lambert, emptied a cash register. Mohammed Shameem, another clerk at the delicatessen, testified he saw three men in the store and one of them approached him with a revolver. Shameem was ordered to lie on the floor and the gunman ‘then emptied a second cash drawer. The owner of the store, Stanley Xenakis, testified that he was walking towards the front of the store when two armed men confronted him and ordered him to empty his pockets. One of the gunmen took Mr. Xenakis’ gun and directed him to lie on the floor. Mr. Xenakis described the two gunmen as black, in their early twenties, each around five feet ten inches, and weighing around one hundred forty pounds. None of the people in the store could identify the appellant as one of the robbers.

Detective Corporal Daniel Wortman of the Takoma Park Police Department testified that he was summoned to the delicatessen on the night in question, and from outside the store observed the robbery in progress. While waiting for backup units to arrive, Wortman positioned himself at the front door to prevent anyone from escaping. At this time, one of the suspects exited the front door; another followed directly behind him. Detective Wortman ordered both men back into the store and told them to lie down. Wortman described the first individual as black, approximately five feet three or four inches, thin, and around seventeen years old. The confrontation with the first suspect lasted approximately five to ten seconds. The second suspect did as ordered, lying down on the floor, but the first suspect turned and ran to the back of the store, along with the third robber. They escaped through a hole in the wall. The gunman remaining in the store was arrested and was subsequently identified as Michael Moore.

Detective Wortman put out a radio broadcast for the two fleeing suspects, based on a composite of the various witnesses’ descriptions plus his own. Some two hours later, Detective Wortman was summoned to the Belford Towers apartment complex in Prince George’s County where two individuals had been detained by a Detective Edgar of the Prince George’s County Police Department, who had received information from an informant that one of them had been involved in the robbery. Wortman testified that he arrested one of the suspects who looked like the individual that he had seen at the Maple Delicatessen earlier. The other detainee was released. The arrested man turned out to be Jeffrey Rustin, appellant’s brother. Two months later, Detective Wortman arrested the appellant, John Rustin, and the charges against Jeffrey Rustin were dismissed. The events leading to appellant’s arrest were detailed in a pre-trial hearing on appellant’s motion to exclude Wortman’s extra-judicial and in-court identification of appellant. A few days following the arrest of Jeffrey Rustin, Wortman began receiving information from Detective Edgar, other unnamed Prince George’s police officers, and a citizen’s group known as "Crimestoppers,” that Jeffrey Rustin was the wrong man. Detective Edgar told Wortman that the actual culprit was appellant. Wortman then asked for and received from Detective Edgar a photograph of appellant. Wortman checked F.B.I. files and discovered that Jeffrey Rustin had only one prior conviction whereas appellant had several. Wortman consulted with Michael Moore, another robber, who told him that it was appellant, not Jeffrey Rustin, who had been involved in the robbery. On the basis of this information, Wortman obtained an arrest warrant for appellant. Two months after the robbery, Wortman visited with appellant at the Prince George’s County Detention Center where appellant was being held on an unrelated matter. Wortman transported him to the Hyattsville police station and interviewed him for thirty to forty minutes. In all, Wortman was together with appellant for approximately two hours.

The trial court refused to exclude Wortman’s extra-judicial identification as well as the in-court identification, saying that Wortman was not sure of his identification of the appellant. The court stated that because Wortman could not make a positive identification, the pretrial procedures Wortman engaged in could not have been too suggestive. The court characterized Wortman’s testimony as not being offered as a thoroughly reliable positive identification but rather as a non-identification which nonetheless had some evidentiary value.

II The Law

We agree with appellant that the court erred in admitting Wortman’s extra-judicial and in-court identifications. The constitutional mandate is clear that any identification of an accused, whether extra-judicial or in-court, must comport with the requirements of due process. In Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, (1967) the Court held that a pretrial confrontation which "was so unnecessarily suggestive and conducive to irreparable mistaken identification” violates due process. 388 U.S. at 302. In Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), the Court slightly changed its language holding that a conviction based on an in-court identification must be set aside where a pre-trial photographic identification "was so impermissibly suggestive so as to give rise to a very substantial likelihood of irreparable misidentification.”

In Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), the most recent analysis of identification procedures, the Court detailed the factors to be used in assessing the admissibility of an identification, holding that once suggestive pre-trial identification procedures are shown to exist, the court may admit an identification based on those procedures only where it is shown that positive factors of reliability outweigh the inherently corrupting effect of the suggestive identification itself. 432 U.S. at 114. See also, Adams v. State, 43 Md. App. 528, 406 A.2d 637 (1979); Bonner v. State, 43 Md. App. 518, 406 A.2d 646 (1979). The Court in Manson reiterated the factors set out in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) to be used in assessing reliability:

"[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” 432 U.S. at 114.

In the present case the reliability factors did not outweigh the suggestiveness of the identification as the following analysis will show.

Ill Application of the Law

A. Suggestiveness

(1) Detective Wortman, the only person able to identify appellant at trial, viewed the suspect at the crime scene only from "five to ten seconds.” Some two hours later, he arrested the appellant’s brother, this arrest being based in part on his own recollection of the suspect from the brief confrontation at the crime scene. The improper suggestiveness began three days later when Detective Edgar informed Wortman that the arrested individual was the wrong man and that Wortman really wanted appellant. Furthermore, Michael Moore, the alleged accomplice, also told Wortman that appellant was the man who Wortman saw. See, Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969), in which the Court reversed a conviction where the police utilized procedures in which "[i]n effect, the police repeatedly said to the witness, 'This is the man.’ ” 394 U.S. at 443. The instant case is more extreme in that two individuals told the witness, prior to an extra-judicial identification, that "This is the man.”

(2) Wortman sought and received from Detective Edgar a photograph of appellant. This single photograph procedure was stated to be unnecessarily suggestive in Manson v. Brathwaite, 432 U.S. at 109.

(3) Wortman expressly relied upon "information from other sources” which indicated to him that his arrest of Jeffrey Rustin was mistaken and that he should have arrested appellant. Aggravating this reliance, Wortman then checked F.B.I. records which revealed that appellant’s prior record was more extensive than that of Jeffrey Rustin.

(4) Wortman sought out appellant and spent approximately two hours with him in a one-on-one situation. This procedure was precisely rejected as unconstitutionally suggestive in Foster, the Court stating:

"The suggestive elements in this identification procedure [the one-on-one confrontation] made it all but inevitable that David [the eyewitness] would identify petitioner whether or not he was in fact 'the man.’ ” 394 U.S. at 443.

B. Reliability Factors

(1) The opportunity to view the criminal at the time of the crime. In Neil v. Biggers, the victim was with the assailant for almost half an hour under sufficient artificial light within her home and a full moon outside, 409 U.S. at 200. In Manson v. Brathwaite, the witness viewed the accused for two to three minutes in daylight, 432 U.S. at 114. In the instant case, Wortman viewed the suspect for no more than five to ten seconds, at night, under street lights and store lights.

(2) The witness’ degree of attention. In Neil v. Biggers, the image of the assailant was implanted in the victim’s mind because of the personally humiliating nature of the offense. 409 U.S. at 200. In Manson v. Brathwaite, the witness was a police officer who had pre-arranged a narcotics buy and knew that he would be expected to later identify the accused. 432 U.S. at 115. In the instant case, Wortman had no such pre-arranged plan. He was called to the scene on the spur of the moment and did not know that he would be required to make a subsequent identification.

(3) The accuracy of a prior description. In both Biggers and Manson, the witnesses gave highly accurate descriptions of the respective defendants. Wortman wrote in his police report that the individual he confronted was light-complexioned, but admitted in court that the defendant was medium-complexioned. Wortman testified that the description he put out over the radio on the night in question was a combination of descriptions he received from all the witnesses, and not simply a description of what he himself observed. This indicates Wortman was unsure of his own description.

(4) The level of certainty demonstrated at the confrontation. In Biggers and Manson the witnesses were certain that the individuals identified were the right culprits. In the instant case, Wortman testified both at the pre-trial hearing and at trial that he could not be certain that the defendant was the right person. In addition to this lack of certainty are two other factors: one, two hours after the robbery Wortman identified appellant’s brother as one of the robbers, and, two, at the pre-trial hearing and at trial, Wortman testified that he was still "eighty per cent” certain that appellant’s brother was the guilty party. The trial judge admitted the identification testimony because he felt that as Wortman could not make a positive identification, the procedures could not have been too suggestive. Otherwise, the trial judge reasoned that Wortman would have made a more positive identification. This ruling inverts one of the reliability factors enunciated in both Neil v. Biggers and Manson v. Brathwaite. Lack of certainty is a factor weighing against the admissibility of the identification, not in favor of it.

(5) The time between the crime and the confrontation. In Manson, the eyewitness made a photographic identification two days following the incident. The Court noted:

"We do not have here the passage of weeks or months between the crime and the viewing of the photograph.” 432 U.S. at 116.

In the instant case, there was a lapse of two months between the incident and the extra-judicial confrontation.

In Neil v. Biggers, there was a seven month gap; but, the Court pointed out:

"This [seven month delay] would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup.” 409 U.S. at 201.

In summary, the evidence shows the absence of reliability regarding the identification of appellant. As the Manson Court stated, "reliability is the linchpin in determining the admissibility of identification testimony,” we think the trial court erred in admitting Wortman’s identification of appellant.

Judgment reversed.

Case remanded for a new trial.

Costs are not reallocated pursuant to Md. Rule 1082 f.

      . We do not understand how the witness could make this statement and still make an even stronger identification of the appellant as the guilty party.

      . At the hearing on the motion to suppress the State’s Attorney proffered that Detective Wortman would testify only that appellant resembled one of the robbers. The testimony that was admitted over objection at trial however, was a positive identification later qualified to a 95% certainty. The evidence as proffered would doubtless have been admissible.