Civil Law Update

Review of the June 2014 Amicus Curiarum reveals the following decisions of interest in the civil law area:

 

 COURT OF APPEALS:

 Attorney Grievance Commission of Maryland v. Ronald Marc Levin, Misc. Docket, AG No. 75, September Term 2012, file May 16, 2014, Opinion by Sally Adkins, Judge

The AGC filed a Petition against Levin alleging that, from December 2010 through November 2012, Levin falsified his records and created fictitious clients to protect his salary which was tied, in part, to performance.  Following a hearing, the judge found that Levin had violated MD Rule 16-701 (i),  violating sections (a) (conduct involving a violation of the MLRPR) and (c) (conduct involving dishonesty, fraud, deceit or misrepresentation)of Rule 8.4 of the Maryland Lawyer’s Rules of Professional Conduct as adopted by Rule 16-812by his actions.  The court held, however, that the AGC failed to prove by clear and convincing evidence that Levin had committed a criminal act, and therefore did not violate Sections (b) (commission of a criminal act reflecting on honesty and trustworthiness) or (d) (conduct prejudicial to the administration of justice.  The AGC took exceptions to the failure to find violations of Rule 8-4 sections (b) and (d).  Levin did not take exceptions.

 The Court of Appeals upheld the AGC’s exceptions, finding that the evidence was sufficient to satisfy the elements of section 7-104(b)(1) of the Criminal Law Article, thereby establishing the violations of Rule 8-4 (b) and (d).  The Court reiterated that when a member of the Bar willfully engaged in acts of fraud, deceit, cheating or like misconduct for personal gain, absent the most compelling circumstances, disbarment follows.

 Mary Catherine Zook v. Susan M. Pesce, No. 75, September Term 2013, filed May 16, 2014.  Opinion by Sally Adkins, Judge

Eugene Zook died on December 24, 2008.  Mr. Zook had three living children.  Twenty two days before his death, Mr. Zook revised his 2007 Living Trust to provide that his estate would go into trust and be divided equally between the three children.  Ms. Pesce was named as the trustee, and while both his son Dennis and Ms. Pesce were to receive their portions of the trust would be paid to them outright, his daughter Mary Catherine Zook’s share would remain in trust.  Mary Zook filed suit against both her siblings, her brother’s wife, and the lawyer, Thomas Downs, who prepared both living trust documents on behalf of Mr. Zook.  A motion to dismiss all defendants except Ms. Pesce was granted.  At the time of trial in 2011, Ms. Pesce agreed to provide the requested audit of the trust, but Mr. Downs refused to provide to Mary Zook a copy of the 2007 Living Trust document, claiming attorney-client privilege.  The trial court interpreted Mary Zook’s pro se pleadings as requesting a set aside of the 2008 Living Trust document.  The trial court upheld the claimed attorney client privilege, denying Mary Zook access to the 2007 Living Trust document.  The court then went on to hold that the evidence provided by Ms. Pesce established that at the time that Mr. Zook signed the 2008 Living Trust document, he was of sound mind.  Mary Zook appealed. The Court of Special Appeals, after a hearing at which Mary Zook continued pro se, upheld the lower court’s findings. 

The Court of Appeals affirmed the Court of Special Appeals.  However, the Court also noted that the attorney-client privilege exception in testamentary matters exists.  The Court found that the trial court erred in not requiring Downs to provide Mary Zook with a copy of the 2007 Living Trust.  The Court further held that despite this error, Mary Zook had failed to provide any evidence that such failure was prejudicial.  The Court found that, even if the 2007 document had been admitted into evidence, it would not have likely changed the trial court’s determination.  Therefore, Mary Zook is not entitled to a new trial.

 Joy Friolo v. Douglas Frankel, et. al., No. 102, September Term, 2011, filed May 19, 2014.  Opinion by Wilner

In February 2000, Joy and her husband filed a 10 count complaint against Dr. Frankel and his practice for wage payment claims.  Over time, several of the counts were dismissed by Joy, and the result was a jury trial award of $11,778.  Two weeks later, Joy’s attorney filed a claim for attorneys’ fees and court costs.  Over the next 14 years, that claim has been tried three times and been appealed at least three times.  No offer to settle has been made by the defendants. 

The Court of Appeals confirmed that the appropriate approach to determining the reasonableness of attorneys’ fees is the lodestar formula, that the Court of Special Appeals appropriately devised a formula for determining the reasonableness of fees, and that lodestar amount could be reduced in consideration of an attorney’s prolonging of litigation and the accrual of fees by refusing to discuss a reasonable settlement offer or continuing to make unreasonable demands.  In this case, the Court remanded the matter to the trial court for a determination of reasonable attorneys’ fees with consideration of the successful appeals.

 

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COURT OF SPECIAL APPEALS:

Sara Sue Drexler, et. vir. v. Jennifer Lynn Boarman, et. al., No. 1394, September Term 2013, Filed May 28, 2014.  Opinion by Peter Krauser, Chief Judge

Essentially, Cameron was born in Indiana and lived there for the  first 18 months of his life.  He then moved with his parents to live with his father’s family, the Drexlers, in Maryland, where he lived for 3 years and 5 months.  He then moved with his mother to Indiana where he lived for a year.  When his mother had a falling out with her significant other in Indiana, she moved back to Maryland.  After a week she reconciled with her girlfriend and moved back to Indiana with Cameron.  The Drexlers filed for custody of Cameron in Maryland, and Sara Sue filed a motion to dismiss, contending that Indiana was the home state for Cameron.  The Circuit Court in Maryland agreed, and dismissed the Drexlers’ complaint for lack of jurisdiction.

The Court of Special Appeals affirmed.   The Court noted that under the Uniform Child Custody and Enforcement Act (the “Act”),  the child’s home state would have jurisdiction over the custody issue unless that state declined jurisdiction or the child was present in Maryland and has been abandoned or is in need of protection.  In the present case, Cameron had lived in Indiana for over one year before the one week period he lived in Maryland, which made Indiana his home state.   Since Indiana had not declined jurisdiction nor had he been abandoned in Maryland or in need of protection.  Therefore, the Circuit Court in Maryland lacked jurisdiction to hear the custody matter.  The Court noted that in making such a determination, the trial court must consider the totality of the circumstances which would encompass both the duration and whether the parent intended that the absence from the home state be permanent or temporary.    See Chick v. Chick, 596 S.E. 2d. 303, 308 (N.C. Ct. Appellate 2004) and In re Marriage of Richardson, 625 N.E. 2d. 1122, 1125 (Ill. App. Ct. 1994).