author: Couch, J.,

text:
    JOY A. MEYER v. JOHN E. MEYER
    [No. 381,
    September Term, 1978.]

      Decided December 7, 1978.

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

      Conrad W Varner, with whom was Russell R. Marks on the brief, for appellant.

      Kenneth J. Mackley, with whom were Mackley & Gilbert on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Joy A. Meyer, appellant, files this appeal feeling aggrieved by the action of the Circuit Court for Washington County in granting her former husband’s petition for revocation of alimony.

It is apparent that the relevant facts are not in dispute. Following a marriage of 23 years, during which six children were born to the parties, appellant was granted a divorce a vinculo matrimonii (1974) on the grounds of appellee’s adultery. The decree also awarded appellant $150.00 per month alimony, and a similar amount for each of the two children who were minors at that time. Three of the parties’ six children lived with appellee after the divorce. Nearly two years later (1976), the court increased both the alimony and child support to $175.00 per month each because of appellant’s increased expenses and because support for one child had ceased when he reached majority. In October of 1977 appellant began living with a man to whom she is not married. This man contributes $200.00 per month for household expenses. The three youngest children of the litigants, including a minor son, also continue to live in this household. Thereafter, appellee filed a petition for revocation of alimony on the grounds that appellant was working and receiving a weekly wage sufficient to meet her needs, and because of the fact that she is living with another man to whom she is not married, with her minor son also residing in that household.

After a full hearing, the chancellor ordered appellee to be relieved of alimony payments on dual grounds:

“(1) Mrs. Meyer appears to be better off financially to receive $200.00 a month from her paramour than to receive $175.00 per month alimony, and
(2) She is exposing her minor child to the scene of living with her paramour.”

On appeal, appellant presents two questions:

(1) Whether appellant’s cohabitation with a man to whom she is not married in the presence of her 17 year old son constitutes sufficient grounds for revocation of alimony.
(2) Whether the lower court erred in revoking appellant’s alimony on financial grounds where appellee’s income had increased 35% and where appellant’s income without alimony is less than her monthly expenses.

Appellant argues, and we agree, that the chancellor’s real concern was whether her post-divorce conduct was a sufficient ground for revocation of her alimony. The parties stipulated that appellant’s demurrer to appellee’s petition was overruled by the court on the ground “that the petitioner was not required to pay alimony to the respondent because she was living with a man to whom she was not married....” The record also shows that the chancellor, in his “Opinion and Order of Court” following a hearing on the merits, mainly considered the post-divorce conduct issue, although he did mention the financial picture to some extent, at least so far as income was concerned. We also note that the chancellor specifically cited the fact that appellant was “exposing her minor child to the scene of living with her paramour” as a ground for granting the relief sought by appellee. From the above, we have no difficulty concluding the chancellor’s real concern was with appellant’s post-divorce conduct, and we shall address this question first.

We deem it appropriate first to quote Judge Prescott, later Chief Judge, when he spoke for the Court in Courson v. Courson, 213 Md. 183, 185-86, 129 A. 2d 917, 918-9 (1957), and outlined the history of alimony and how it had been dealt with in this State before reaching the specific issue involved in that case. Judge Prescott stated:

“From the time of Foliamb’s case (44 Eliz.), 3 Salk. 138, (about 1602) until the divorce act of 20 and 21 Yict. ch. 85 (about 1857), no absolute divorce could be judicially granted in England. The only legal separation recognized was a divorce from bed and board upon a decree of the Ecclesiastical Court. These Courts, as an incident to the decree, granted alimony, temporary or permanent, but only as a part of the decree a mensa et thoro. Alimony, therefore, under the English law had no independent existence, and no Court, not even the Ecclesiastical, could grant alimony when it was the only relief sought. This doctrine was adopted and followed in the early decisions of many of the States in this country, but not in Maryland.
During the short existence of the Republic in England (1649-1660), after the first King Charles was beheaded, the Ecclesiastical Court was abolished; and, as a result, for at least until the restoration of the monarchy, the entire jurisdiction in all cases of alimony and of separate maintenance devolved, as a matter of necessity, upon the Court of Chancery. In Maryland, there never was an Ecclesiastical Court; therefore the High Court of Chancery (or the Court of Ordinary) always had, even under the Provincial Government, entire jurisdiction of claims for alimony, or separate maintenance, from the husband based on his misconduct. Apparently, at that time this misconduct was limited to adultery and cruelty. Galwith v. Galwith, 4 Harris & McH. 477 (a case wherein the Lord Proprietary of Maryland presided); Hewitt v. Hewitt, 1 Bland 101; Helma v. Franciscus, 2 Bland 544, 565. In 1777, by legislative enactment (now Sec. 14 of Art. 16 of the Maryland Code) the courts of equity of this State were given specific authority to hear and determine all causes for alimony.
From the earliest times in this State, divorces were granted by, and emanated from, the legislature; but an attempt by the legislature to grant alimony was held to be a judicial function and therefore unconstitutional. Crane v. Meginnis, 1 Gill & J. 463, 474. In 1841, the legislature granted jurisdiction of all divorce actions to the courts of equity of this State (now Secs. 31, 33 and 34 of Art. 16) It was thereafter held that these enactments did not preclude the legislature from granting divorces, Wright v. Wright, 2 Md. 429, 450, but by Sec. 33 of Art. 3 of the Maryland Constitution, the legislature is now prohibited from so doing.
So, at the present time and for many years past in Maryland, the jurisdiction to hear and determine questions of divorces and alimony, both temporary and permanent, is, and has been, vested in the courts of equity in this State. Alimony has never been defined here by statute; but, from the beginning, it has never been considered, as in some States, as a division in property. It ‘is a maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee simple * * * but a provision for her support, to continue during their joint lives, or so long as they live separate.’ Wallingsford v. Wallingsford, 6 Harris & J. 485, 488. And, without exception, this Court has held that in a suit for alimony alone, the wife must allege and prove facts sufficient in themselves to support a decree for a divorce a mensa or a vinculo. In other words, in order that she be entitled to alimony, she must show she is entitled to either a partial or an absolute divorce. Among the many cases so holding, are: Staub v. Staub, 170 Md. 202, 208, 183 A. 605; Hood v. Hood, 138 Md. 355, 361, 113 A. 895; and Polley v. Polley, 128 Md. 60, 63, 97 A. 526.”

Other principles pertinent here have evolved over the course of time; for example, unless the decree of divorce awards alimony or reserves jurisdiction, the court is without power to enter a subsequent award of alimony. Sody v. Sody, 32 Md. App. 644, 363 A. 2d 568 (1976). If there are substantial changes in needs, financial conditions, and circumstances of the parties, the trial court retains continuing jurisdiction to amend its divorce decree awarding alimony to a wife. Willoughby v. Willoughby, 256 Md. 590, 261 A. 2d 452 (1970); LaChance v. LaChance, 28 Md. App. 571, 346 A. 2d 676 (1975); Gosman v. Gosman, 19 Md. App. 66, 309 A. 2d 34, modified on other grounds 271 Md. 514, 318 A. 2d 821 (1973). Misconduct of a wife, including adultery, after a divorce a mensa et thoro but prior to an a vinculo divorce, may cause her to lose her right to alimony. Courson v. Courson, supra.

It appears settled that under our existing case law the adultery of a wife, prior to an absolute divorce, constitutes a ground for revoking a prior award to her of permanent alimony. In the case before us, however, we are confronted with conduct subsequent to an absolute divorce, and thus the rule of Courson does not necessarily extend to the instant factual situation. Indeed, Judge Prescott in Courson stated specifically:

“It will be noted, we have not been required in this suit to pass upon the right of a wife, who has been granted an absolute divorce and alimony and who thereafter commits adultery, to continue to receive support from the former husband, and express no opinion thereon at this time.” 213 Md. at 188-9, 129 A. 2d at 920.

The time has now arrived for this Court to express its opinion on this question.

Judge Morton said for this Court in Atkinson v. Atkinson, 13 Md. App. 65, 71, 281 A. 2d 407, 410 (1971):

“From a review of the cases throughout the country and the text authorities, it is apparent that the effect of a wife’s ‘misconduct’ after an a vinculo divorce is not firmly settled.”

This view is reinforced by Nelson, Divorce and Annulment, Vol. 2A, Sec. 17, 19, page 92, where it is stated:

“Conduct of an ex-wife which would be unbecoming were she still bound by marital ties is not ground for modification of alimony or support provisions of a decree which has severed those ties. According to some courts, actual immorality on her part may be considered in connection with a motion to modify; but others take the position that, even though she is living in adultery, it is no concern of the ex-husband and not, of itself, ground for insisting upon modification of his obligations under the decree.”

and in Schouler’s Divorce Manual (1944), Sec. 283:

“Under some circumstances the husband may be relieved of the requirement that he pay alimony to his wife by reason of her subsequent misconduct. This rule, however, does not seem to have been generally applied. The Court is required to make an allowance of alimony to the wife that is reasonable and just. This is based upon happenings and conditions as they exist at the time of the divorce. There would not seem in the absence of statute to be any duty placed on the wife which her husband can enforce * * * ”

In 6 A.L.R.2d, page 860, the author states in part:

“There is a marked conflict of authority on the question whether the fact that a divorced wife is guilty of immoral conduct after the divorce is a ground for reducing or terminating alimony payments. Perhaps a majority of the courts state that such conduct is a ground for modification, although some of the decisions are mere dicta.”

The following statement is found in 24 Am. Jur. 2d, Divorce and Separation, § 685:

“There is a definite disagreement among the courts on the question whether the subsequent misconduct of the wife constitutes a ground for either termination or reduction in the amount of alimony.”

Browne, Law of Divorce and Alimony, page 296, states, however:

“Immoral conduct of the wife subsequent to a decree of divorce will not bar her right to previously awarded alimony. * * * An exception exists where she derives support from a paramour, and possibly where it can be shown that she continuously receives gain, apparently adequate for her maintenance from prostitution of her person. In such cases presumably the payment of installments of alimony may be checked or reduced, not because of the woman’s vicious life, but because further support from her husband is not at this time needed. The same principle would apply where the wife had acquired property by legitimate means.” [Emphasis added.]

The Superior Court, Appellate Division, of New Jersey has considered this question in Garlinger v. Garlinger, 137 N.J. Super. 56, 347 A. 2d 799 (1975). That case is cited by both appellant and appellee as lending support to their respective positions. The Superior Court in Garlinger reviewed the existing authorities and noted the division of authority on the point presented here. The Court, however, found the majority rule to be better reasoned and adopted that position.

The holding of Garlinger was that the unchastity of the wife occurring after an absolute divorce is not of itself cause for terminating or reducing alimony. Id. at 63, 347 A. 2d at 803. The Court noted, however, that the former wife’s unchastity could be, in a proper case, a factor to be considered “not as misconduct perse, but to the extent it may bear upon the amount of, and the necessity for, the allowance.” Id. at 63, 347 A. 2d at 803. The Court suggested two cases in which the unchastity could properly be considered — if the wife is being, in whole or in part, supported by her paramour, or where the paramour is being supported by the wife’s alimony.

In Maryland, it has been said that the purpose of alimony is to provide for the support and maintenance of the wife. It is never of a punitive nature.

It is also the law in Maryland that a divorce a vinculo ends all rights of either spouse dependent on marriage. Crise v. Smith, 150 Md. 322, 133 A. 110 (1926). One of those “rights” is or should be the expectation that the spouse remain chaste.

We believe that the Garlingerrule, identified in that opinion as the “majority” rule, is consistent with existing Maryland law. Accordingly, we hold that alimony, awarded to a wife in a decree of divorce a vinculo matrimonii, may not be terminated or reduced solely because of her unchaste conduct subsequent to the divorce. That post-divorce conduct may, however, be considered where it is relevant to a change in financial condition. See Wolfe v. Wolfe, 46 Ohio St. 2d 399, 350 N.E.2d 413 (1976).

As we have set out above, the chancellor’s main concern in ordering the reduction of alimony appears to have been the .unchastity of the appellant. Insofar as that concern was unrelated to a change in the appellant’s financial condition, the chancellor erred. The chancellor did, however, mention the financial circumstances, though we are unable to determine whether he considered all the evidence before him relative to those circumstances. We shall remand this case, without affirmance or reversal, so that the chancellor may consider the total financial situation of the parties (including both incomes and expenses), and determine the issue, taking the unchastity of the wife into account only insofar as it relates to the financial situation.

Case remanded, without affirmance or reversal, for farther proceedings consistent with this opinion.

Costs to abide the result.

      . We observe that appellee did not seek a modification of the decree so as to obtain custody of his minor son.

      2. Now Md. Cts. & Jud. Proc. Code Ann., § 3-603.

        3. Id.

      4. We are confident that the Court meant to say sexual misconduct, rather than “adultery”.

      . While the parties in Atkinson argued the same issue raised here, the Court held that the issue was not presented by the facts in that case and did not decide the issue.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    IN RE JOHN R.
    [No. 404,
    September Term, 1978.]

      Decided December 7, 1978.

    The cause was submitted on briefs to Thompson, Lowe and Melvin, JJ.
    Submitted by John W. Sause, Jr., District Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Paul T. Cuzmanes, Assistant Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County, and John L. Scarborough, Assistant State’s Attorney for Cecil County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The appellant was found delinquent by Judge J. Albert Roney, Jr. of the Circuit Court for Cecil County sitting as a juvenile court. The court found that the act appellant committed “which would be a crime if committed by an adult,” Md. Cts. & Jud. Proc. Code Ann. § 3-801 (k) (Supp. 1978), constituted a violation of Md. Transp. Code Ann. § 14-104 (a) (1977). Section 14-104 (a) states in pertinent part:

“(a) In general. — A person may not:
(1) Willfully damage or tamper with any vehicle without the consent of its owner; . . . .”

The State concedes that there was no damage, and the issue turns upon whether appellant’s conduct constituted “tampering.” The State’s case shows that the victim’s vehicle had been parked in her driveway and locked for the night. Subsequently, shortly after midnight, a witness saw a person approach the victim’s automobile. Although the witness could not see who the person was or what he was doing, he did see the interior light of the automobile illuminated.

The witness called the police who arrived propitiously. They detained the suspicious person, now identified as appellant, as he was moving away from the automobile. The witness could not “say for a fact that [he] seen him [appellant] in the car.”

Recognizing that the judge could infer from this testimony that appellant had opened the car door, causing the light to come on, and conceding (if only for sake of argument) that he had entered the car, appellant argues here that there is no evidence of “tampering.” Concisely stated, appellant contends that the statute presupposes a criminal intent that was not proven, and that the proscribed act implies some injury to the automobile “since the word ‘damage’ must be read as so closely linked with ‘tamper’ as to control its meaning.”

The limited number of cases throughout the country provide us little guidance in interpreting our statute, partly because the statutes vary from state to state, and partly because the cases are factually decided. See Annot., 57 A.L.R.3d 606 (1974). We will, therefore, look to the intent of our own Legislature to interpret it in relation to the facts before us.

Intent

We do not agree that the State must prove any “criminal” intent on the part of one who tampers with a "vehicle other than that he consciously intended to act (in the words of the statute) “without the consent of its owner.” We note that in the related subsection (b) following § 14-104 (a), wherein the Legislature dealt with “[cjlimbing on or manipulating mechanisms of [a] vehicle,” an intent to commit a malicious mischief, damage, injury or crime is required for behavior to fall within the proscription. § 14-104 (b). Had the Legislature intended a similar mens rea to be a prerequisite to conviction for willfully damaging or tampering, it surely would have included such language as it did for the climbing and manipulating offense.

■ Tampering

Ballentine’s Law Dictionary 1254 (3d ed. 1969) defines “tampering” as:

“Meddling; interfering. Making corrupting or perverting changes. Foolish or trifling experimentation. United States v Tomicich (DC Pa) 41 F Supp 33.
The word does not necessarily imply the commission of a criminal act. Keefe v Donnell, 92 Me 151 159 ....”

When the Legislature chooses contextually to criminalize such conduct we are not free to enlarge upon or restrict that which they have enacted. Wheeler v. State, 281 Md. 593, 596 (1977). In light of the Legislature’s use of the disjunctive “or,” it is clear that the inclusion of tampering as an offense was in contrast to that of damaging rather than conjunctively controlled by it. A disjunctive conjunction serves to establish a relationship of contrast or opposition. See The American Heritage Dictionary of the English Language 378 (1969).

The judge inferred from the car’s light having gone on, with appellant in the immediate vicinity of the car door, that appellant “was the one who got in the car.” Even that inference was not necessary to find tampering. The inference that it was appellant who consciously opened the locked car door would have been sufficient to meet the definition of tampering.

Sufficient evidence existed from which a factfinder could have found that appellant had violated the crime prohibited by Md. Transp. Code Ann. § 14-104 (a). Md. Rule 1086.

Judgment affirmed.

Costs to be paid by the appellant.

      . Appellant does not argue that the adverb “willfully” modifies “tamper” as well as “damage,” but to the extent that “willfully” connotes “[a]n act done intentionally, or on purpose, and not accidentally” or involuntarily, see Ballentine’s Law Dictionary 1369 (3d ed. 1969), we act upon the premise that both verbs are so modified. See generally State v. Stodola, 257 Iowa 863 (1965).


author: LlSS, J.,

text:
    MARTIN MARIETTA AGGREGATES et al. v. CITIZENS FOR THE PRESERVATION OF THE SOUTH MOUNTAIN-ANTIETAM ENVIRONMENT et al.
    [No. 302,
    September Term, 1978.]

      Decided December 8, 1978.

    The cause was argued before Morton, Davidson and Liss, JJ.

      John H. Timer and William P. Naim, with whom were Byron, Moylan & Timer on the brief, for appellants.

      Robert E. Kuczynski and Mary Anne Day for appellees.
   LlSS, J.,

delivered the opinion of the Court.

To characterize this case as a “highly controversial” one in Washington County, Maryland is probably the understatement of the year. On the one side of the issue are the appellants, Benévola Farms, Inc., David Litton, Sr., and Martin Marietta Aggregates Corporation, who were perceived by the court below as having a common interest in the controversy and as acting in concert with each other as to the use of the property which is the subject matter of this dispute. We shall adopt the position of the trial court on this phase of the matter and shall make no effort to unravel the complex series of deeds, leases, and options which established the respective interests of the parties. The appellees are Citizens for the Preservation of the South Mountain-Antietam Environment, a nonprofit unincorporated association, and the individual adjoining property owners who have joined in this proceeding.

In 1975, Martin Marietta Aggregates was the operator of a quarry pit located on a fifty-eight-acre tract owned by Benévola Farms, Inc. in Election District Six of Washington County. The operation included storage of stockpiles, a plant building office, equipment and scales used in the extraction of Tomstown dolomite stone. The stone was utilized in an asphalt, concrete and cement plant owned by Richard F. Kline, Inc., located in close proximity to the quarry pit. The quarry and asphalt plant were served by a road running from Benévola Church Road. It is conceded that the quarry and asphalt plant had been in operation for a long period of time before the adoption of the Washington County Zoning Ordinance, and that the classification of the quarry under that Ordinance was “Industrial Mining.”

Immediately adjoining the fifty-eight-acre tract was an unimproved tract of eighty-five acres owned by David Litton, Sr., which was zoned as “Agricultural” land and used for farming purposes by the owner. By a series of transactions, Martin Marietta Aggregates obtained an option to purchase the eighty-five acres provided the land could be classified “Industrial Mining.” A petition was filed, in proper form, with the County Commissioners for Washington County in which the petitioners sought to rezone the eighty-five-acre tract from “Agricultural” to “Industrial Mining.” The area surrounding the two tracts is a mixture of farmland and single family residences. On May 25, 1976, the County Commissioners, after a hearing, denied the petition for rezoning. The appellants appealed that decision to the Circuit Court for Washington County.

On July 15, 1976, while the appeal from the denial of the petition for rezoning was still pending in the Circuit Court, Martin Marietta Aggregates filed a petition, in proper form, with the Washington County Board of Zoning Appeals for a special exception in which it sought permission to operate a mineral extraction enterprise on the eighty-five-acre tract adjoining their existing quarry operation.

The applicants presented by testimony and exhibits a plan for the integration of the eighty-five-acre tract into the existing quarry operation on a step-by-step basis commencing with the granting of the special exception and concluding with the reclamation of the property in approximately the year 2011. The plan was drawn in conformity with the provisions of Article 22, Section 22.3 of the Washington County Zoning Ordinance. It contemplated moving the existing stockpiles of stone onto the eighty-five-acre tract, improving of the herm area (the area where top soil and unusable material are mounded) with the planting of pines, and constructing a sediment and erosion control pond and drain. The applicant produced testimony that as the existing quarry pit expanded the stockpiles on the adjoining property would be expanded until a maximum pit area of thirty-four acres would be attained. Thereafter, in approximately 1991, the applicant would begin reclamation of the existing quarry, would move the plant, office scales and equipment onto the property for which the special exception was sought and would begin to excavate a pit near the south end of the property which would ultimately cover twenty-nine acres of the eighty-five-acre tract. The development of this pit would occur through the 1991-2011 phase of the development plan. It was stated that at maximum development the proposed quarry operation would be no closer than 1450 feet to residences presently-existing.

Extensive hearings were held before the Board of Appeals, and on September 2, 1976, the Board granted the special exception. The Board gave the following reasons for granting the special exception:

1. That Article 6, Section 6.2(f) allows the Board to decide on a special exception for extractive type industries, subject to the requirements of Section 22.3.
2. That the proposed special exception shows no increase or intensification of the effects of a quarrying operation on the lives or property of people residing in the area. The plans call for a transitional move from one site to another with no immediate or sudden increase in the volume of business. The Board finds that the net effect of such a plan will not substantially differ from the present minimal effect of the quarry on the area. Section 25.6 (Limitations, Guides & Standards)
3. That the area’s growth and population will not be adversely effected by the transitional plan for the special exception. Section 25.6 A & B
4. That the volume of truck traffic will not be substantially increased. The appellant requested at the hearing that a meeting be held with County representatives so as to alleviate truck traffic west of the quarry. Section 25.6c
5. That the transitional or phased plan for the special exception use will not deprive people of the peaceful enjoyment of their homes (Section 25.6d) or lower property values (Section 25.6e)
6. That the proposed special exception is an appropriate use of the land. (Section 25.6g) It is adjacent to the existing quarry, and contains extensive deposits necessary for a quarrying operation. It is located in a rural area of the County outside of the urban type growth of larger communities. Section 6.0 (Purpose)
The appeal for a special exception as provided for in Section 6.2(f) of the Ordinance is granted for the implementation of the transition or phase-type plans submitted at the hearing, subject to all present requirements of the Ordinance, including Section 22.3. The appellant or their representative is directed to meet with County agencies within 30 days from the date of this decision to seek to alleviate or prohibit truck traffic west of the quarry on Benévola Church Road to Alt. Rt. 40 and also on Toms Road.

The appellees appealed to the Circuit Court for Washington County, and after a preliminary hearing, the court remanded the case to the Board of Appeals to take testimony to replace that portion of the record that was not preserved at the original hearing because of a failure of the recording device. After a rehearing, the Board of Appeals affirmed its original decision to grant the special exception sought by Martin Marietta. Appellees again appealed to the Circuit Court, and the trial judge, after hearing extensive argument and considering the record of both proceedings before the Board of Appeals, reversed the action of the Board on the ground that the Board had no jurisdiction to hear and decide the petition for a special exception in view of the pending appeal of the denial of the petition for rezoning. The trial judge in his opinion said:

The appellant protestants [appellees herein] argue that the Board of Zoning Appeals should not have received the application for a special exception while the rezoning decision concerning the same premises was on appeal to the Circuit Court. The Court agrees for the reasons stated hereafter.
*
*
When the appellees [appellants herein] first sought to change the use of the subject property they had a choice of two approaches. They could seek rezoning of the land in question under Article 27 of the Zoning Ordinance or they could seek a special exception under Article 6 of the Ordinance. The rezoning approach was elected and it was argued to the County Commissioners that there had been a mistake in the original zoning classification and that there had been a substantial change in the character of the neighborhood which justified the rezoning requested. The request was denied and that decision was appealed.
While that appeal was pending the appellees sought a special exception from the Board of Zoning Appeals and argued that the zoning classification was correct and that they were qualified for a special exception under it. The Court is of the opinion that once the rezoning request was pursued to a decision the appellees could not then elect to pursue the special exception route.
Article 27.6 of the Zoning Ordinance states that once reclassification has been denied another such application dealing with the same land shall not be accepted for filing for twelve months. To permit the appellees to follow the special exception route would have the effect of nullifying Article 27.6. It would allow the administrative body, the Board of Zoning Appeals, to substitute its judgment for that of the legislative body, the County Commissioners, and it would permit the appellees to argue mistake in zoning in the reclassification case and correctness of zoning in the special exception case. Further, to permit such a dual approach permits a multiplicity of actions and places a substantial financial burden upon the protestants. They must oppose the rezoning at the Commissioner level and on appeal and at the same time oppose the special exception application before the Board of Zoning Appeals and on appeal. A party with superior resources could thus prevail over a party with limited resources through a multiplicity of litigation and that does not serve the ends of justice.
, Once the appellees have made an election between rezoning and special exception and have pursued their election to a decision they cannot revert to the other.

It is from the judgment of the court below reversing the Board of Appeals that this appeal was filed.

The issues to be decided by this appeal are:

1. Did the trial court err in its conclusion that the appellants’ pending appeal of the denial of its petition for rezoning by the County Commissioners of Washington County was a bar to its attempt to secure a special exception under the Washington County Zoning Ordinance?

2. Assuming, arguendo, that the proceeding for a special exception before the Board of Appeals was not barred, should the Court consider and affirm the Board’s action in this case?

In order to decide the controversy between the parties in this case, it is necessary that we consider the provisions of the Washington County Zoning Ordinance which became effective in that County on April 2, 1973. By its terms, the Ordinance adopted a plan for the County, a developmental analysis plan map and certain stated policies.

The Ordinance divided the powers to be exercised under its terms between the County Commissioners and a Board of Appeals created by the Ordinance. The Commissioners were charged with the responsibility of considering all applications for rezoning including proposals for amendment, change, modification, and repeal. Article 27, Section 27.1.

By Article 27, Section 27.3, the County Commissioners, before rendering a decision on the granting of a request for change, are required to consider certain criteria which are set out in that section. As we have already noted, the County Commissioners had before them an application for rezoning in this case, on which a hearing was held. They denied that application and refused to rezone the subject property. Article 27, Section 27.6 provides:

An application for a reclassification shall not be accepted for filing by the Board of County Commissioners if the application is for the reclassification of the whole or any part of land the reclassification of which has been opposed or denied by the Board of County Commissioners on the merits as herein above provided within twelve (12) months from the date of the Board’s decision.

The duties and powers of the Board of Appeals established by the Washington County Zoning Ordinance are found in Article 25.

Section 25.2 of Article 25 states that in addition to its power to hear and decide appeals where it is alleged that there is error in any order made by an administrative official in the enforcement of the Ordinance, the Board has the power:

(a) * * *
(b) To hear and decide special exceptions to the ordinance upon which the Board is required to pass.
(c) To authorize, upon appeal in special cases, such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions, the enforcement of the provisions of this ordinance will result in unwarranted hardship and injustice and which will most nearly accomplish the purpose and intent of the regulations of the Zoning Ordinance.

Article 25, Section 25.6 outlines the limitations, guidelines and standards which the Board is required to consider in exercising its general powers under the Ordinance. Section 25.7 provides that if an application [for special exception or variance] is disapproved, thereafter the Board shall take no further action on another application for substantially the same proposal on the same premises, until twelve months have elapsed from the date of disapproval.

The trial judge held and the appellees urge that when the County Commissioners refused to grant rezoning of the tract here in dispute, the denial divested the Board of Appeals of jurisdiction to consider the application for a special exception for twelve months from the date of the refusal of the petition for rezoning. We do not agree and shall reverse.

2 E. C. Yokley, Zoning Law and Practice Section 15-4, at 143 (3d ed. 1965) states that “an exception is a permission given by the board, properly authorized by ordinance in specific cases, for an applicant to use his property in a manner contrary to the provisions of an ordinance, provided such use subserves the general welfare and protects community interests.”

The author distinguishes between a special exception and rezoning when he notes that the latter “involves a change in the law effectuated by legislative body of the municipality... where general conditions [have] changed so as to require a fundamental revision of the zoning ordinance.” Yokley, supra, Section 11-1, at 88 (4th ed. 1978).

There is obviously a substantial difference between a change in the basic zoning law effectuated by the legislative body of a municipality and a special exception to the requirements of the law permitted to be granted by a zoning board of appeals. As land is zoned by ordinance passed by a legislative body, the necessary and proper procedure for rezoning land is by ordinance passed by the appropriate legislative body. An applicant’s right to a special exception is predicated upon his compliance with the safeguards enumerated in the portion of the zoning ordinance which establishes the existence of the right. It is for the board to determine whether conditions exist which make the case an appropriate one for the granting of the exception, and whether there is legally competent evidence to support a finding that the granting of the exception is not adverse to the public interest.

A “special exception” is also to be distinguished from a “variance” where the literal enforcement of the zoning ordinance would result in unnecessary hardship. The Court of Appeals made the distinction between a “special exception” and a “variance” when, in Montgomery County v. Merlands Club, 202 Md. 279, 96 A. 2d 261 (1952), it said:

It is the common practice to join an application for an exception with an application for a variance, leaving it to the board to decide on which ground it will grant the application. As a result, many cases discuss exceptions and variances without differentiation, yet the two do differ, and one important distinction is that where a specific use is permitted by the legislative body in a given area if the general zoning plan is conformed to and there is no adverse effect on the neighborhood, the application can be granted without a showing of hardship or other conditions which are necessary for the allowance of a variance. Id. at 288-89.

A reading of the Washington County Zoning Ordinance makes it crystalline that the legislative body of that county followed the legal principles we have here stated. It provides that rezoning is reserved for the legislative body. It defines a special exception in Article 28, Section 28.57 as follows: “[a] grant of a specific use that would not be appropriate generally or without restriction; and shall be based upon a finding that the use conforms to the plan and is compatible with the existing neighborhood.”

Article 6, Section 6.2 states that a special exception may be granted by the Board of Appeals of the county after a public hearing. The provision enumerates those uses which may be the subject matter of a grant of special exception, and subsection (f) of 6.2 specifically authorizes the operation of extractive type industries subject to the requirements listed in Section 22.3 of the Ordinance. Those requirements are as follows:

In all districts excepting the “IM” District, excavations and processing of products thereof, other than in conjunction with building or highway construction or the stripping of sod, shall be subject to the following:
(a) Any building housing power-driven or power-producing machinery or equipment shall be located at least two (2) times the distance requirements specified in Section 4.9.
(b) Extractive operations shall be confined to areas of a minimum of fifty (50) feet from all adjoining property lines in any agricultural, residential, or business district or any public road right-of-way, and one hundred (100) feet from any then existing principal building on an adjoining property except that such minimum distances shall be increased on a ratio of two (2) feet for each foot of excavation depth above twenty-five (25) feet, provided that the Board finds that approaching with such distances will not damage the adjoining property of said principal building.
(c) Prior to issuance of any zoning permit indicating approval, reclamation and/or restoration plans must be submitted to and approved by the Planning and Zoning Commission, and satisfactory bond or other guarantee shall be furnished the County Commissioners to insure provisions of adequate fencing and the restoration of the extractive operations by regrading, drainage or other required treatment during or at the completion of the operation.

Appellees rely heavily on Tyrie v. Baltimore County, 215 Md. 135, 137 A. 2d 156 (1957) as authority for the trial court’s conclusion that the denial of Martin Marietta’s application for rezoning precluded a petition for a special exception for twelve months from the date of denial. A careful examination of that case, however, shows that it is distinguishable on the facts from the case sub judice.

In Tyrie, the Court found that the County Commissioners of Baltimore County were involved in a rezoning of the entire county. The Commissioners adopted new regulations that amplified and refined the zoning structure — particularly the granting of special exceptions.

The existing provision [of the zoning law] that no new application for a change of zoning of the same property could be filed for eighteen months from the denial of reclassification was replaced by a regulation that for the same period of time forbade a new application for either reclassification or special exception “in any case which had been considered and acted upon.” (emphasis supplied.) Id. at 137-38.

The Court of Appeals, in determining the legislative intent, also said:

... we must consider the tests that have been set up to aid proper reading in doubtful cases. These include not only consideration of the literal or usual meanings of the words used but their meaning and effect considered in the light of the setting, the purposes of the enactment, the ends to be accomplished, and the consequences that may result from one meaning rather than another. Id. at 140.

See Scherr v. Braun, 211 Md. 553, 128 A. 2d 388 (1956).

In Tyrie, the Court decided that the amended provision went to the jurisdiction of the Board, and that within the period specified the Board was without power to act on a reapplication. Nuova Realty Co. v. City of Baltimore, 197 Md. 266, 78 A. 2d 765 (1950).

Applying the test stated by the Court of Appeals in Tyrie to the zoning ordinance here under consideration, we are convinced that it was not the intention of the legislative body to require an election between proceeding by way of rezoning and by way of special exception. It is evident that the Ordinance creates two different avenues to achieve a change in the particular use of a property. It vests the legislative body of the County with the power to change the zoning of a property, and permits an administrative tribunal to grant an exception within the framework of the existing zoning classifications. The standards to be considered by the respective bodies in exercising their powers differ substantially. There is nothing specifically stated in the Ordinance to prevent the owner from petitioning for rezoning and a special exception at the same time and, indeed, we can visualize a number of instances in which it would be necessary to secure both a rezoning of land and a special exception in order to achieve a particular use of the property. If, as argued by the appellees, the intention was to divest jurisdiction for a twelve-month period from each of the bodies by a denial of relief by either one of them, it would have been simple to so state as was done in Tyne. To the contrary, the Ordinance goes to great pains to spell out the jurisdictional time period in two separate sections of the Ordinance without in any way relating the sections to each other.

The principle of construction set forth in Schweitzer v. Brewer, 280 Md. 430, 374 A. 2d 347 (1977) is, we think, controlling. It was there said:

If reasonably possible the parts of a statute are to be reconciled and harmonized, the intention as to any one part being found by reading all the parts together, and none of its words, clauses, phrases or sentences shall be rendered surplusage or meaningless. Results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language. Id. at 438-39.

We conclude that the only reasonable construction to be given to Section 25.7 of the Zoning Ordinance is that a second identical application for a special exception for the same land may not be considered by the Board until a twelve-month period dating from a denial of the original application for exception has expired. Similarly, under Section 27.6, a second application for rezoning of the same land may not be considered by the County Council until the expiration of a twelve-month period from the denial of the first rezoning application. We perceive nothing in these sections which inhibits the right of the County Commissioners or the Board from considering simultaneous applications for rezoning and/or special exceptions, and we do not believe that a denial of rezoning prevents the Board from assuming jurisdiction of a petition for special exception within the succeeding twelve-month period or in the converse that a denial prevents the County Commissioners from considering a petition for rezoning because of the denial of a special exception within that period. Nor does the appeal to the Circuit Court of the County Commissioners’ refusal to rezone change the conclusion we reach. These proceedings are separate and distinct. They are governed by different guidelines which attempt to reach two different goals. We think the trial judge erred in holding the Board of Appeals had no jurisdiction to grant the special exception.

Appellants urge that if we rule that the Board of Appeals had jurisdiction to hear and decide the special exception case that we proceed under Maryland Rule 1085 to decide whether the Board’s action was proper under the law. We shall decline to do so. While it is correct that the merits of the decision of the Board were argued in the trial court, the judge did not reach that issue because of his conclusion on the question of jurisdiction. We express no opinion on whether the record contains such substantial evidence as to make the Board’s determination fairly debatable. The trial judge did not consider and decide that issue. In addition, the appellees argue that the record is clear that the Board displayed bias against the appellees in its predetermination, before hearing, that it had jurisdiction in the special exception case, and that it acted arbitrarily, capriciously, and with prejudice toward the appellees. The trial judge made no decision on this argument. We think it is proper that the court below hear such further argument as it concludes is appropriate and reach a decision on these issues.

We have considered the motion to dismiss filed by the appellees on the ground that the appellants refused to cooperate in agreeing on the portions of the record to be included in the printed extract. The disputed portions were printed under the procedure provided in Rule 1028 c.2. and Rule 1028 d. We think there were reasonable grounds for a difference of opinion, and that a dismissal of.the appeal would not, under these circumstances, be appropriate. Klein v. Dougherty, 200 Md. 22, 87 A. 2d 821 (1951). We conclude, as well, that Kemp-Pontiac-Cadillac, Inc. v. S. & M. Construction Co., 33 Md. App. 516, 365 A. 2d 1021 (1976) contemplates that in the absence of prejudice to the appellees or a deliberate violation of the rules, that a dismissal of the appeal should not be granted. We find no justification for a dismissal and shall deny the motion.

Judgment reversed; case remanded for further proceedings; costs to be paid by appellees.


author: Liss, J.,

text:
    ARCHWAY MOTORS, INC. v. WALTER F. HERMAN
    [No. 389,
    September Term, 1978.]

      Decided December 8, 1978.

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

      Charles F. Obrecht, Jr., with whom was Melvin J. Sykes on the brief, for appellant.

      Edward L. Zamarin, with whom was William R. Lenhard on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is the second go-around between the appellant, Archway Motors, Inc. and Walter F. Herman, appellee. The dispute arose out of a real estate sales contract between the parties in which Archway sold two parcels of land to Herman. The parcel involved in this dispute was improved by ninety-two brick garages. The facts in the case are fully explicated in Archway Motors, Inc. v. Herman, 37 Md. App. 674, 378 A. 2d 720 (1977), which came to our Court on appeal because of a refusal of the trial court below to grant Archway the remedy of specific performance. The total amount of the purchase price was less than $700, which obviously was not the justification for the filing of the bill of complaint for specific performance. The evidence showed that Herman failed to settle for the property at the stipulated time and no action was taken until Archway received a violation notice involving the condition of garages. That situation ultimately resulted in criminal charges being filed against the appellant. Archway defended on the ground that it was no longer the owner of the garages, but the District Court refused to accept that defense and entered a probation before judgment conditioned upon Archway making the repairs required by the violation notice. It was obvious to Archway that it would be saddled with an irksome and expensive situation unless it was able to secure specific performance of its contract with Herman. It filed a bill of complaint in the Circuit Court of Baltimore City in which it sought specific performance and damages flowing from the appellee’s failure to settle as required by the contract. The trial court denied the relief sought and the case came to this Court in Archway Motors, Inc. v. Herman, supra. Judge Wilner, speaking for this Court, reversed, and we found that Archway was entitled to specific performance and, as ancillary relief to its remedy, was entitled to be compensated by an award of ancillary monetary damages for its losses and expenses attributable to the appellee’s delay in performance. The Court said:

It would seem clear, however, that Archway is entitled to the unpaid bálance of the purchase price plus reimbursement for taxes on the property from and after March 4, 1975, the date of the contract, that it has paid, and the actual and reasonable expenses that it has incurred in order to comply with the order of the District Court. Id. at 688-89.

The case was therefore remanded to the Circuit Court of Baltimore City “for the purpose of (1) entering a proper decree of specific performance, and (2) determining the proper amount of ancillary monetary compensation and entering an appropriate order therefore.”

In the trial upon remand, the chancellor (Perrott, J.) allowed the specific damages delineated in our opinion and, in addition, allowed the counsel fees expended by the appellant in the District Court case, but refused to allow the counsel fees of several thousand dollars expended by the appellant in its successful effort to secure specific performance and ancillary damages. The decree issued by the chancellor awarded $3,635.86 as ancillary monetary compensation, but specifically denied any compensation incurred and paid by Archway to prosecute the specific performance suit in the Circuit Court of Baltimore City, and the subsequent appeal to this Court. It is from this judgment that the appeal sub judice has been filed.

The sole issue to be decided in this appeal is whether the appellant is entitled to recovery from the appellee as ancillary monetary compensation the expenses of counsel fees incurred in prosecuting the specific performance action. Appellant urges that it was forced to institute the specific performance suit because of the criminal charges filed against it in the District Court arising out of the housing violation notices issued after the date of settlement, and that it should therefore be reimbursed for its legal fees.

In Archway, supra, Judge Wilner discussed the proper measurement of the monetary compensation due in a case of this kind, where he said:

In Bernardini v. Stefanowicz Corp., 29 Md. App. 508 (1975), we quoted with at least tacit approval the following language from Ellis v. Mihelis, 384 P. 2d 7 (Cal. 1963):
“The compensation awarded as incident to a decree for specific performance is not for breach of contract and is therefore not legal damages. The complainant affirms the contract as being still in force and asks that it be performed. If the court orders it to be performed, the decree should as nearly as possible require performance in accordance with its terms. One of the terms is the date fixed by it for completion, and since that date is past, the court, in order to relate the performance back to it, gives the complainant credit for any losses occasioned by the delay and permits the defendant to offset such amounts as may be appropriate. The result is more like an accounting between the parties than like an assessment of damages.”

The general rule governing the recovery of litigation expenses was stated by the Court of Appeals in Empire Realty v. Fleisher, 269 Md. 278, 285-86, 305 A. 2d 144 (1973), to be “that, other than usual and ordinary court costs, the expenses of litigation — including legal fees incurred by the successful party — are not recoverable in an action for damages.” Freedman v. Seidler, 233 Md. 39, 47, 194 A. 2d 778 (1963); Harry’s Tavern, Inc. v. Pitarra, 224 Md. 56, 63, 166 A. 2d 908 (1961); McGaw v. Acker, Merrall & Condit Co., 111 Md. 153, 160, 73 A. 731 (1909); Colonial Carpets v. Carpet Fair, 36 Md. App. 583, 590, 374 A. 2d 419 (1977); Kromm v. Kromm, 31 Md. App. 635, 638-39, 358 A. 2d 247 (1976); Certain-Teed Prod. v. Goslee Roof., 26 Md. App. 452, 480, 339 A. 2d 302 (1975). In the absence of a statutory requirement or a contractual arrangement, Mortgage Investors of Washington v. Citizens Bank & Trust Co. of Maryland, 278 Md. 505, 366 A. 2d 47, aff’g 29 Md. App. 591, 349 A. 2d 647 (1976), or the application of Maryland Rule 604 b, or in special circumstances, counsel fees are not an element of damages. Webster v. People’s Loan, Savings and Deposit Bank, 160 Md. 57, 152 A. 815 (1931); Freedman v. Seidler, supra; Harry’s Tavern v. Pitarra, supra.

Appellant urges that while it seeks reimbursement for its counsel fees, that it does so not for breach of contract but as ancillary monetary damages arising from the defendant’s breach. Appellant concedes that there is no Maryland case in which a recovery of counsel fees was allowed on that legal theory and urges us to adopt it on the basis that “the Court [may] give such remedies as full and complete justice may require,” Miller v. Talbott, 239 Md. 382, 393, 211 A. 2d 741 (1965); 2 Restatement of Contracts Section 384, comment d (1932). In the light of the numerous decisions as to the allowance of counsel fees that we have heretofore quoted, we decline to adopt the proposition that counsel fees are proper ancillary monetary damages in a specific performance suit.

However, there is another basis on which counsel fees might possibly be awarded, and that is the well recognized “collateral litigation” exception. That exception was discussed in McGaw, supra, at 160, where the Court of Appeals said:

The general rule is that costs and expenses of litigation, other than the usual and ordinary Court costs, are not recoverable in an action for damages, nor are such costs even recoverable in a subsequent action; but where the wrongful acts of the defendant has involved the plaintiff in litigation with others, or placed him in such relation with others as make it necessary to incur expense to protect his interest, such costs and expense should be treated as the legal consequences of the original wrongful act. If the plaintiffs evidence be true, it was about to lose possession of the premises by the wrongful act of the defendant, and it was obliged to employ professional aid and incur expense to retain possession of the premises to which, as between itself and the defendant, it was entitled, and the necessary expenses it incurred to regain the possession is an element of the injury.

See also Jarrett v. Scofield, 200 Md. 641, 92 A. 2d 370 (1952).

It is noted that in Kromm, supra, we stated that “[t]he allowance [of counsel fees in McGaw] was grounded on the fact that the wrong there complained of had imposed a necessary obligation upon the plaintiff to institute the collateral action in order to protect bis interest in and to regain possession of, property. 31 Md. App. at 639.

McGaw, supra, makes it clear that a claimant seeking counsel fees may prevail only when the wrongful acts of one of the parties to a contract has involved the claimant in litigation with others arising out of the contract. It was on that basis that the chancellor correctly allowed the recovery of counsel fees for appellant’s defense to the criminal charges filed against it in the District Court. It does not follow, however, that the allowance of these counsel fees a fortiori requires the payment of counsel fees in the specific performance case.

We believe that it is obvious that the present case involves a specific performance dispute between Archway and Herman and that no counsel fees can be lawfully allowed to either litigant. The fact that the District Court judge elected to grant probation without verdict predicated on a determination of the actual ownership of the land on which the garages rested does not make the subsequent suit for specific performance a collateral litigation situation as would justify the assessment of counsel fees against either of the parties. Essentially, this remained a dispute between the parties to the original sales agreement and did not involve a collateral attack against their rights under the contract by others as to warrant the allowance of counsel fees. We conclude that the case sub judice does not appropriately fall within the “collateral litigation” exception.

Judgment affirmed; costs to be paid by appellant.

      . Maryland Rule 604 b provides that “in an action or part of an action if the court finds that any proceeding was had (1) in bad faith, (2) without substantial justification, or (3) for purposes of delay the court shall require the moving party to pay to the adverse party the amount of the costs thereof and the reasonable expenses incurred by the adverse party in opposing such proceeding including reasonable attorney’s fees. . Appellant has not contended that its expenditure of counsel fees should be reimbursed on the basis of this Rule.


author:
Liss, J.,
      Melvin, J.,

text:
    GREGORY E. DELIA v. BARRY R. BERKEY
    [No. 150,
    September Term, 1978.]

      Decided December 19, 1978.

    The cause was argued before Mooke, Melvin and Liss, JJ.

      Robert W. King, with whom was ArthurM. Kravetz on the brief, for appellant.

      William A. Ehrmantraut, with whom were Donahue & Ehrmantraut on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court. Melvin, J., concurs and filed a concurring opinion at page 55 infra.

It was the Bard who best expressed the wounds that slander does inflict. He said:

Slander,
Whose edge is sharper than the sword, whose tongue
Outvenoms all the worms of Nile, whose breath
Rides on the posting winds and doth belie
All corners of the world.

Appellant, Gregory E. Delia, allegedly wounded by a defamation of his character by Barry R. Berkey, appellee, appeals from the ruling of Judge Jacob S. Levin of the Circuit Court for Prince George’s County, who granted a motion for summary judgment in favor of the appellee in the defamation action filed by the appellant.

On September 25, 1976, Gregory E. Delia, a police officer in the Prince George’s County Police Department, was on uniformed patrol at about 10:15 P.M., operating in the southbound lane of Interstate 495, when he observed an automobile being operated in excess of the posted speed limit. The automobile was being driven by Dr. Barry R. Berkey, a certified psychiatrist with offices in Virginia; Dr. Berkey’s wife and son were passengers. The appellant intercepted the appellee and required him to pull his car to the shoulder of the road. The officer’s car was then positioned to the rear of Dr. Berkey’s, with the patrol car’s two high intensity lights and a spotlight being directed toward the Berkey car.

The officer stated that he informed Dr. Berkey that he was going 70 miles an hour in a 55 mile zone and would be issued a ticket for the violation. Thé doctor requested the officer to turn off his high intensity lights but the latter refused to do so, contending that they were needed for his own safety and that of Dr. Berkey and his passengers. The officer then directed the doctor to remain with his own car while he prepared the ticket in the patrol car. After doing so, the officer presented the ticket to the appellee, requesting that he sign it and advising him that his signature on the ticket was not an admission of guilt but represented a promise by the appellee to appear in court or pay the fine required by the violation. Dr. Berkey again asked that the lights on the patrol car be extinguished, and the officer again refused. The doctor inquired as to the candlepower of the bright lights and upon being advised by the officer that he did not know, the doctor wrote, “does not know” on the summons book. Officer Delia advised Dr. Berkey that if he did not sign the summons he would be arrested. The doctor asked for the officer’s name and badge number and was advised that they were on the summons. Dr. Berkey then asked, “Do my wife and I look like criminals?”, and the officer replied, “I do not know what a criminal looks like.” The doctor then signed the summons, was handed his ticket, and drove off.

Five days after the incident, Chief John Rhodes of the Prince George’s County Police Department received the following letter from Dr. Berkey:

Dear Chief Rhoades:
This is to request an investigation on Private Gregory Delia. The reason for this request has to do with the officer’s behavior when he stopped my car by signalling with lights flashing from his patrol car. He asked for my license and automobile registration but gave me no reason (until asked); he had high power spot lights directed at my car and upon request, he refused to deflect or turn them off. After writing up the summons, he refused to repeat his inaudible instructions and insisted I sign the summons immediately or that he would “take me in.” Private Delia kept the high powered lights directed into my wife’s eyes, my twelve year old son’s eyes and my own — while he kept his back toward the beam. (I couldn’t identify Private Delia if my life depended on it because of the blinding light).
I regard his behavior as abnormally cruel and inhumane, rude and insensitive, threatening and punitive. I neither look nor behave like a fugitive, but I, as well as my wife and son, were treated by Private Delia as such.
Partly because of my professional background and training, I question if this young officer is mentally deranged, if he is psychopathic and/or pathologically sadistic. This letter is to formally request a mental evaluation of Private Delia.
My speedometer read 60 mph (not 70 as I was told) and I had been maintaining this speed where safe, since leaving Salisbury, Md.
I shall look forward to your reply.
Sincerely,
Barry R. Berkey, M.D.
cc: The Honorable James Magruder Rea
Mr. Darryl L. Wyland, Esq.

It was this letter which represented the gravamen of the first count of the second amended declaration filed by the appellant in which he sought damages for libel from the appellee.

As a result of the letter, the Prince George’s County Police Department directed one of its representatives to communicate with Dr. Berkey to investigate his complaint. In the course of a telephone conversation with the investigator, Dr. Berkey characterized Officer Delia as having “a real emotional problem” and being “abnormally cruel and inhumane, rude and insensitive, threatening and punitive”. From the officer’s refusal to turn out his high intensity lights and from his conduct at the traffic stop scene, the doctor concluded that Delia was “mentally deranged, psychopathic and/or pathologically sadistic.” This conversation was the basis of Officer Delia’s claim for damages for slander in the second count of his second amended declaration.

The appellee filed an affidavit, a deposition of the appellant, and a motion for summary judgment on the ground that the appellant was a public official as a matter of law and that in order to recover, the public official was required to prove actual malice on the part of the appellee. The appellee also asserted that actual malice is defined at law as “a knowing falsity or reckless disregard for truth.” Appellee further alleged that there was no genuine issue as to any material fact in regard to the malice issue, and that he was therefore entitled to judgment as a matter of law. The appellant filed an objection to the motion for summary judgment and after a hearing, the trial court granted the motion. It is from that action that this appeal is taken.

The sole issue to be determined in the case sub judice is whether the trial court erred in granting appellee’s motion for summary judgment. We think it did err and shall reverse.

The Court of Appeals on numerous occasions has stated that the function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether there is an issue of fact to be tried, and if there is none to cause judgment to be issued accordingly. Brewer v. Mele, 267 Md. 437, 298 A. 2d 156 (1972); Broadwater v. Arch, 267 Md. 329, 297 A. 2d 671 (1972); Greenwell v. American Guaranty Corp., 262 Md. 102, 277 A. 2d 70 (1971).

In ruling on a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, and even if it is found unlikely that the party opposing the motion will prevail at trial, this is insufficient to authorize a summary judgment against him. Goldwater v. Ginzburg, 261 F. Supp. 784 (S.D.N.Y. 1966); Merchants Mortgage v. Lubow, 275 Md. 208, 339 A. 2d 664 (1975).

The Court of Appeals has held that a police officer when acting within the scope of his law enforcement function is a “public official.” Robinson v. Board of County Commissioners, 262 Md. 342, 278 A. 2d 71 (1971); Harris v. Mayor of Baltimore, 151 Md. 11, 133 A. 888 (1926). We have followed these holdings in the very recent case of Karangelen v. Snyder, 40 Md. App. 393, 391 A. 2d 474 (1978). Accordingly, the test applied in determining the governing legal principles in this case is the standard enunciated by the Supreme Court of the United States in New York Times v. Sullivan, 376 U. S. 254, 84 S. Ct. 710 (1964), which held that public officials may sue for libel only when they can demonstrate that the alleged libel was made with “actual malice,” which is defined to mean publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. In Garrison v. Louisiana, 379 U. S. 64, 74, 85 S. C. 209 (1964), the Court refined its standard, stating that “only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions.”

New York Times, supra, and its progeny impose a heavy burden on the public official or public figure who seeks redress for an alleged defamation. The defamed public official or public figure must prove not only that the publication was false but that it was knowingly so or was circulated with reckless disregard for truth or falsity. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 95 S. Ct. 1029 (1975). The procedural effect of New York Times was a shifting of the burden of proof in cases involving alleged defamation of public officials or public figures. We said in Kapiloff v. Dunn, 27 Md. App. 514, 530, 343 A. 2d 251 (1975):

In order to protect the interest of the First Amendment in the free dissemination of information concerning the conduct of a public official or public figure, the Supreme Court shifted that burden. It is now incumbent upon the public official or public figure plaintiff to prove that the statements concerning his conduct were false, and that they were published with actual malice.

The New York Times or the so called “constitutional malice” doctrine focuses primarily on the element of scienter. Knowing falsity or reckless disregard for truth involves proof of a “high degree of awareness of ... probable falsity... Garrison v. Louisiana, supra, such that the defendant “entertained serious doubts as to the truth of his public action.” St. Amant v. Thompson, 390 U. S. 727, 731, 88 S. Ct. 1323 (1968). Accord, Marchesi v. Franchino, 283 Md. 131, 387 A. 2d 1129 (1978).

With knowledge of the legal principles we have here stated, the trial court was under an obligation to determine whether the various depositions, answers to interrogatories, and affidavits raised a genuine evidentiary conflict on the issue of malice. The rule is clear that if the pleadings, depositions, admissions, and affidavits show that there is no genuine dispute as to any material fact, then the moving party is entitled to a judgment as a matter of law. If the various documents and exhibits show a genuine conflict, then the summary judgment should be denied and the issues should be submitted to the trier of the facts. Wolfe v. Lamar & Wallace, Inc., 261 Md. 174, 274 A. 2d 121 (1971); Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, 122 A. 2d 563 (1956).

There are comparatively few cases which have considered the issue of the granting of a motion for summary judgment when a subjective state of mind is the gravamen of the complaint. In a well reasoned opinion, the District Court for the Southern District of New York discussed this issue in Goldwater v. Ginzburg, supra, at 788:

The issue of actual malice on the part of defendants seems peculiarly inappropriate for disposition by summary judgment because it concerns “motive, intent, and subjective feelings and reactions”. Empire Electronics Co. v. United States, 311 F.2d 175, 180 (2d Cir. 1962); see also 6 Moore’s Federal Practice (2d ed.) 2581. The Supreme Court has cautioned against summary judgment “where motive and intent play leading roles”. Poller v. Columbia Broadcasting Co., 368 U. S. 464, 473, 82 S. Ct. 486, 491, 7 L.Ed.2d 458 (1962)
Moreover, since the question deals with the state of mind of defendants Ginsburg and Boroson, plaintiff ought to be able to have their testimony before the trier of fact in open court on cross-examination.
“[¡]f * * * the court is of the opinion that since the knowledge is in the * * * control of the moving party, who is, of course, an interested party, and that the opposing party may be able to establish his claim * * * if afforded the opportunity to cross-examine the moving party in court, * * * the court may deny the motion for summary judgment.” 6 Moore’s Federal Practice (2d ed.) 2877. See Colby v. Klune, 178 F.2d 872 (2d Cir. 1949).

It is clear that the question of malice is for the jury only when evidence exists warranting the submission to the triers of facts of the issue of actual malice by reason of knowledge of falsity or reckless disregard for truth. Shapiro v. Health Insurance Plan, 163 N.E.2d 333 (1959); Trails West, Inc. v. Wolff, 298 N.E.2d 52 (1978).

There are two sharply divergent versions of the incident which was the basis for the publication of the allegedly liberous and slanderous remarks in this case. If the explanation by the police officer as to the facts and circumstances surrounding the issuance of the traffic citation is correct, then the letter in which the appellee characterized the police officer’s behavior as “abnormally cruel and inhumane, rude and insensitive, threatening and punitive” would permit the inference that the appellee entertained serious doubts as to the truth of his publication at the time it was made. Additionally, if the officer’s version of the facts surrounding the stopping of the appellee’s vehicle is to be believed, then the suggestion in the appellee’s letter, “partly because of my professional background and training that I question if this young officer is mentally deranged, if he is psychotic and/or pathologically sadistic”, together with the appellee’s request for “a mental examination of Private Delia” would at the very least raise the factual issue of whether the communication to the officer’s superior was made with knowledge of its falsity or with such reckless disregard for truth or falsity as to amount to actual malice.

The appellee’s version of what happened is, of course, substantially different from that of the appellant, and we believe this raises a genuine dispute as to the facts of the case which precluded the granting of appellee’s motion for summary judgment. Appellee was, therefore, not entitled to a summary judgment as a matter of law.

Judgment reversed.

Case remanded for further proceedings.

Costs to be paid by appellee.

Melvin, J.,

concurring:

I agree that the motion for summary judgment was erroneously granted by the court below. I reach that result, however, by a somewhat different route.

The defendant’s motion for summary judgment alleged two alternative grounds for granting the motion:

1. “That there is no genuine issue as to any material facts in regard to the issue of defendant’s malice, and that therefore the defendant is entitled to a judgment as a matter of law”. In support of this allegation the motion alleged that in a deposition in which he was questioned by appellee’s counsel, appellant “was unable to cite a single fact which would support” the allegation of his declaration that appellee “made the false, malicious and defamatory statements contained in the aforesaid letter with knowledge that these were false____”
2. “That there is no genuine issue as to any material fact in regard to the issue of absolute privilege, and that therefore, the defendant is entitled to a judgment as a matter of law”. (Emphasis added).

As to the first ground, it is clear from the plaintiff’s deposition that the questions posed to him by the defendant’s counsel assumed that the allegedly defamatory portions of the letter of September 30,1977, contained in the second and third paragraphs of the letter, were statements of fact and not expressions of opinion. The defendant-appellee argued below and now on appeal that because the plaintiff-appellant testified in his deposition that he had no facts to support his allegation, made in his declaration, that the defendant-appellee “knew when he made those statements that they were false” (emphasis supplied), he was therefore entitled to summary judgment. The appellee argues, in effect, that unless his opponent can prove knowing falsity, he loses. This argument overlooks the complete definition of actual malice that must be proved in a defamation action by a public figure. To prove that a defamatory false statement was made with “actual malice” the public figure plaintiff must prove that the statement was made either “with knowledge that it was false or with reckless disregard of whether it was false or not”. (Emphasis added) New York Times Co. v. Sullivan, 376 U. S. 254, 279-280. Thus, proving knowing falsity is not an indispensable element of the proof of actual malice. The plaintiff-appellant also alleged in his declaration, alternatively, that the statements were made “in reckless disregard for the truth”.

The plaintiff was not obliged to prove his entire case before trial. The fact that pre-trial discovery proceedings may show that he is unable to say that when the appellee made the allegedly defamatory statements he (appellee) knew them to be false, does not mean that for that reason alone the appellee is entitled to judgment as a matter of law.

As to the second ground urged for granting the motion for summary judgment, the appellee alternatively argues that the allegedly defamatory portions of the letter are merely expressions of opinion and “are characterizable as 'fair comment’ on the conduct of a public official, and as such merit a constitutional qualified privilege”. Citing Kapiloff v. Dunn, 27 Md. App. 514, 343 A. 2d 251 (1975), cert. denied (1976), (“Opinions based on false facts are protected if the publisher was not guilty of actual malice with regard to these supportive facts”, id. at 531-532), the appellee asserts, without discussion, that “even if one assumes that the brief summary of facts in paragraph 1 of the appellee’s letter are false”, the appellant has failed in his burden “to adduce evidence on the malice issue sufficient to overcome the Motion for Summary Judgment”.

In Kapiloff, supra, at 533, Judge Orth, speaking for the Court, said:

“.. . Where the statements, however, are actual expressions of opinion, based upon stated or readily known facts, their objective truth or falsity depends on the veracity of these underlying facts. Therefore, any determinations with regard to falsity or the presence of actual malice must look to the stated or known facts which form the basis for the opinion____”

It would seem to follow, therefore, that, viewed in the light most favorable to the appellant (against whom the motion was filed), if the facts that purport to support an expression of opinion are false, there arises at least an inference that these statements of fact, made by one who had first hand knowledge of the entire incident, were made with either knowing falsity or reckless disregard of their truth or falsity. As already noted, the appellant was not required to prove his entire case before trial, and at the summary judgment stage is entitled, as the party against whom the motion was filed, to all inferences favorable to his cause. Merchants Mtg. Co. v. Lubow, 275 Md. 208, 339 A. 2d 664 (1975); Hill v. Lewis, 21 Md. App. 121, 318 A. 2d 850 (1974).

For the above reasons, I agree that the judgment must be reversed and the case remanded for further proceedings.

      . William Shakespear, Cymbeline III, iv, 35.

      . Though copies of the letter were sent to the Honorable James Magruder Rea and Mr. Darryl L. Wyland, the record does not reveal any involvement by either of these gentlemen in the events that transpired in this case.

      3. See White Motor Co. v. United States, 372 U. S. 253, 259, 83 S. Ct. 696 (1963).