Civil Law Update January

Review of the January 2015 Amicus Curiarum reveals the following decisions of interest in the civil law area:

COURT OF APPEALS:

Attorney Grievance Commission of Maryland v. Michael Craig Worsham, Misc. Docket AG No. 14, September Term 2013, filed December 23, 2014. Opinion by McDonald, Robert N., Judge

After his failure to file returns or pay taxes was detected by the Internal Revenue Service, Mr. Worsham filed a petition in the United States Tax Court in which he raised only frivolous arguments challenging the constitutionality of the federal income tax laws and arguing that his wages as an attorney could not be taxed as income. He later repeated the same arguments before the United States Court of Appeals for the Fourth Circuit, which found them meritless and affirmed the Tax Court’s conclusion that he had failed to file returns and pay taxes with fraudulent intent. In May 2013, the Attorney Grievance Commission filed a Petition for Disciplinary or Remedial Action against Mr. Worsham alleging numerous violations of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) arising out of Mr. Worsham’s failure to file returns or pay taxes, as well as violations arising out of his representation of four of his clients. The hearing judge found that Mr. Worsham had violated MLRPC 1.2(a), 1.4, 1.5, 1.8, 1.9, 1.15, 1.16, 3.1, 8.1, and 8.4(a)-(d), as well as Maryland Rules 16-606.1 and 16-607. Mr. Worsham filed exceptions. The Commission, through Bar Counsel, did not file exceptions, nor did it respond to Mr. Worsham’s exceptions.

The Court of Appeals held that disbarment was the appropriate sanction. The Court held that because Mr. Worsham’s willful failure to file tax returns or pay taxes was done with a fraudulent intent for personal gain, it warranted the severest sanction of disbarment. Because disbarment was the appropriate sanction for Mr. Worsham’s conduct relating to his willful and fraudulent failure to file returns or pay taxes, the Court did not discuss the hearing judge’s findings and conclusions related to Mr. Worsham’s representation of his clients.

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THE COURT OF SPECIAL APPEALS:

In Re: Guardianship of Zealand W. and Sophia W., No. 1280, September Term 2013, filed October 29, 2014. Opinion by Salmon, J.

At the time of the death of the father of the children, Zealand and Sophia, father’s first cousin, Mr. Tattersall, filed a guardianship action alleging that the children’s Mother was unfit to provide the care for the children. Mr. Tattersall contended that section 13-702(a) allowed the court to appoint a guardian because neither parent was serving as guardian of the children and no testamentary appointment had been made. Mother contended that section 13-702(a) did not grant the circuit court “subject matter” jurisdiction to appoint a guardant of the person of her minor children because, after the death of Father, she, as a matter of law, was serving as the guardian of the person of the children. Over Mother’s protest, the circuit court awarded guardianship to different parties over the 11 months. In July 2013, Mother represented by new counsel, filed a motion to dismiss the case based on (1) failure to state a claim upon which relief can be granted, and (2) lack of subject matter jurisdiction. The circuit court, on September 25, 2013, denied Mother’s July 19, 2013 motion to dismiss. Mother filed an interlocutory appeal from, inter alia, an order holding her in contempt for failure to obey certain orders concerning payment of an expert appointed by the court.

The Court of Special Appeals vacated and remanded. The Court of Special Appeals held that it was clear from the language used in FL, section 5-203 that Mother was, as of the date Father died: 1) responsible for her children; and 2) their natural guardian. Mother’s rights as a parent have never been terminated pursuant to title 5, subtitle 3 of the Family Law Article. Under such circumstances, section 13-702 of the Estates & Trusts Article gave the trial court no authority to appoint a guardian of the person of Mother’s children. The Court noted that if, at the time of Father’s death, Mr. Tattersall, or anyone else, had grounds to believe that Mother was not a fit person to have custody of her children, the matter should have been brought to the attention of the Department of Health & Human Services, so that that Department could attempt to prove, pursuant to FL, section 5-301 et seq., that Mother’s parental rights should be terminated and that the Department should be appointed the childrens’ guardian. The Court also concluded that the circuit court was not authorized, under section 13-702 of the Estates & Trusts Article to appoint a third party as a temporary or permanent guardian of the person of either Zealand or Sophia when (1) the children’s mother is alive; (2) mother’s parental rights have never been terminated; and (3) no testamentary appointment has been made. In addition, the trial court erred when it:
(1) ordered Mother to pay a third party $5,000 to make a determination as to whether someone,
other than Mother, should be the guardian of the children; and (2) holding Mother in
contempt for failing to make the $5,000 payment.

Timothy Brooks, et al. v. Roger Jenkins, et ux., No. 1499, September Term 2012, filed December 16, 2014. Opinion by Nazarian, Douglas R. M., Judge

Timothy Brooks, a law enforcement officer, went to the Jenkins’ property to serve an arrest warrant on their son. During the course of the attempted service, Deputy Brooks shot and injured the Jenkins’ dog, resulting in the need to take the dog to the veterinarian for emergency treatment. While the Jenkins were at the veterinarian, the officers entered the house, served the arrest warrant and took the son into custody. Subsequently, the Jenkins sued Deputy Brooks for the damages to their dog (veterinarian expenses totaled approximately $15,000) based on gross negligence and sued both officers for trespass. The jury awarded each of the Jenkins $10,000 for veterinary expenses. (The trial court later reduced this award to a total of $7,500 pursuant to Md. Code (1974, 2013 Repl. Vol.), § 11-110 of the Courts & Judicial Proceedings Article, which caps recovery for tortious injury to pets.) Second, the jury awarded the Jenkinses $100,000 each against Deputy Brooks for the non-economic damages they suffered based on his shooting the dog. Last, it awarded each of them $100,000 against each of the officers (such that this portion of the award totaled $400,000) based on the trespass to the property.

The Court of Special Appeals affirmed the non-economic damages award against Deputy Brooks, holding that the trial court properly submitted the case to the jury based on a question of fact about whether the police officer acted in a grossly negligent manner. The jury had before it testimonial and videotape evidence that could reasonably have led to a finding that the officer acted with reckless indifference when he shot the dog, and that indifference could give rise to a gross negligence finding. The Court also held that the trial court properly declined to apply the cap imposed by CJ § 11-110 to the gross negligence award of $200,000—thereby allowing the plaintiffs to keep the full non-economic damages award. The Court held that the trial court was correct in interpreting CJ § 11-110 to apply only to economic damages for injury to a pet, given its legislative history, which demonstrated the legislative intent to limit specifically the recovery of medical expenses. Finally, the Court of Special Appeals held that both police officers were immune from suit for a claim that they had violated the constitutional rights of the plaintiff-landowners, where the plaintiffs failed to demonstrate that they acted with actual malice or gross negligence. The plaintiffs also were not entitled to recover on a common-law trespass claim, where the officers did not act with any deliberate intent to trespass, when they had come to plaintiffs’ property for the purpose of executing a lawfully valid arrest warrant, and the plaintiffs failed to show any damage to the property.