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Landlord and tenant disputes, both residential and commercial, frequently must be settled in courts after parties cannot reach an agreement privately. Therefore, litigation is key to achieving a fair resolution of your dispute. At The Law Offices of Baldwin, Briscoe & Steinmetz, we can represent you when you need legal assistance.
Ten Tips for Landlords and Tenants
I am a litigator, so I deal with disputes between individuals on a daily basis. I’ve been litigating various types of landlord-tenant disputes in Maryland for over twelve years now. You do anything for that long and you begin to see patterns develop. The purpose of this article is to give readers a general overview of some issues that repeatedly occur in my practice when it comes to residential leases and some tips on how to follow the law so that you don’t end up on the wrong side of a dispute. If you have more specific questions that are not answered by this article, please send us an email or call to speak with one of our experienced landlord-tenant attorneys today. Please note that this article is designed to address issues dealing with residential leases only. While there may be some overlap with commercial leases, you should contact an attorney about specific questions. Feel free to email me at RSteinmetz@BaldwinBriscoe.com if you would like to discuss a specific concern.
- Understand the Maryland law on Security Deposits
The basic provision of Maryland Law addressing the Landlord’s responsibilities with respect to security deposits arises out of Section 8-203 of the Real Property article of the Maryland Code. This section defines a security deposit as “any payment of money, including payment of the last month’s rent, in advance of the time it is due, given to a landlord, by a tenant, in order to protect the landlord against nonpayment of rent, damage due to breach of lease, or damage to the leased premises, common areas, major appliances, and furnishings.”
Maryland law prohibits a landlord from charging a tenant or a prospective tenant a security deposit that exceeds two month’s rent. Moreover, it provides harsh penalties if a landlord does charge a security deposit in excess of that allowed by law. The statute allows the tenant to sue the landlord and recover threefold the amount charged that exceeds the permissible amount, plus attorney’s fees.
Maryland also requires that the landlord provide a security deposit receipt. Most residential leases will have a security deposit receipt right in the lease. This is a good idea because it makes it virtually impossible for the landlord to forget to comply with this requirement and makes it easy for the landlord to prove compliance if the parties end up in court.
The landlord must keep the security deposit in a financial institution that is FDIC insured. The landlord must deposit the security deposit within thirty (30) days of receipt and may keep one account for multiple properties. If the landlord chooses, the landlord can invest the security deposit funds into federally insured certificates of deposits (CDs).
If the landlord sells the property during the term of the lease, the landlord remains personally obligated to return the security deposit at the termination of the tenancy. Further, the landlord’s creditors are not permitted to attach or garnish security deposits held by the landlord.
Security deposits accrue simple interest at the rate of three percent (3%) per annum. The landlord is obligated to return the security deposit to the tenant, less any damages rightfully withheld, within forty-five (45) days following the termination of the tenancy. In many cases, the landlord’s financial institution may not pay three percent interest, so the landlord will have to make up the difference out of his own pocket. Whether or not the landlord returns any portion of the security deposit, the landlord is further obligated to provide a written list to the tenant of the damages, together with a statement of costs that were actually incurred, within forty-five (45) days. If the landlord does not comply the landlord forfeits the right to withhold any portion of the security deposit. As long as the letter is postmarked by the forty-fifth day, the landlord will be in compliance with the notice requirement.
If the landlord fails to return a security deposit, or a portion thereof, to which the tenant is entitled, the tenant may bring an action in court to recover the security deposit funds. The law further allows the tenant to recover treble damages, attorney’s fees, and court costs. Whether a court will or will not award all of these types of damages is entirely within the judge’s discretion.
A landlord may retain a security deposit to cover future rent where a tenant breaches and leaves before the end of the lease term. In that event, however, the landlord must return to the tenant any future amount that is actually received in rent by the landlord during the original term of the lease.
The requirements that the landlord provide a written list of damages and return the unused portion of the security deposit with interest, within forty-five days do not apply when a tenant is evicted from or abandons the rental property prior to the termination of the lease. In those cases, the tenant may request the return of the security deposit by sending a written request by first class mail to the landlord. If the tenant exercises this option, then the landlord must provide a written list of damages as described above.
The security deposit requirements may not be waived by agreement of the landlord and the tenant. If the parties attempt to waive these provisions, the courts will not give effect to the waiver clause.
- What is and isn’t permitted in a Residential Lease
We’ve learned above, that security deposits in excess of two-month’s rent are not permitted in a residential lease. In addition to this requirement, the law also provides that the lease shall include a statement that the lease will be made available, in a condition permitting habitation, with reasonable safety, if that is the agreement, or if that is not the agreement, a statement of the agreement concerning the condition of the premises.
A written lease must also provide for whether the landlord or the tenant will be responsible for providing heat, gas, electricity, water, and repair of the premises.
Written leases may not include a provision whereby the tenant agrees to the entry of a confessed judgment for monies owed. A confessed judgment is a procedural tool that allows the plaintiff to obtain a money judgment against a defendant without a trial. They are typically used in promissory notes.
A written lease may not require a tenant to forgo a right or remedy that is otherwise available by statute to the tenant. Some of these rights and remedies are described throughout this article.
A written lease may not provide for a late-payment penalty of more than five percent (5%)of the amount outstanding.
A written lease may not require a tenant to waive his or her right to a jury trial.
A written lease may not require a tenant to consent to a period for the landlord’s notice to quit which is shorter than provided by law. The parties may agree, however, to a longer period.
A written lease may not allow the landlord to take possession of the rented property, or the tenant’s belongings, without going through the legal eviction process, unless the tenant has abandoned the property.
A written lease may not include a clause that exculpates or requires the tenant to indemnify the landlord from liability to the tenant or a third party based on the negligent conduct of the landlord on the premises, or injury sustained on a portion of the property that is not exclusively controlled by the tenant.
Finally, a written lease may not allow a landlord to terminate the lease solely because the tenant has joined or formed an organization of tenants with the purpose of collectively negotiating with the landlord. If a landlord includes any of the prohibited provisions within a lease, the provision itself is void and unenforceable. In most cases, the remainder of the lease is still valid and enforceable.
A verbal or oral lease is permitted in Maryland. While a verbal lease in no way diminishes the rights of the parties, they can make it difficult to prove what the terms of the agreement are when that agreement is in dispute. If the terms of the tenancy are going to be for more than a year, the lease must be in writing under the Maryland Statute of Frauds.
- Maintenance and Repair of Rental Properties
When a tenant rents a property, certain maintenance and repair issues will almost always arise at some point during or at the termination of the lease. These issues typically include repainting, replacement of carpet, repair of appliances, and many other things that will have to be done to restore the property back to the condition in which the tenant received the property, so that the tenant can continue to use the property, or to prepare the property to be leased to a new tenant.
Landlords and tenants will often approach a lawyer with questions about what their rights and responsibilities are with respect to damage and repair of the property and of course they often ask who is responsible for paying for the damage. The answer to that question depends on whether the damage is what is called “ordinary wear and tear” or whether the damage rises above this level.
Ordinary wear and tear means the deterioration of the property that occurs without negligence, recklessness or abuse of the premises, furnishings or appliances on the property by the tenant, the tenant’s family or others on the property with the tenant’s consent. Essentially it is what occurs when some part of the structure simply wears out with age. As you can imagine, there is considerable discretion given to the court as to whether damage falls under the rubric of ordinary wear and tear. It is advisable, for this reason, for both the landlord and tenant to take photos of the property both at the beginning and end of a lease term to show the condition of the property at both times.
At the termination of a lease, the landlord is obligated to return the tenant’s security deposit, plus interest, but may withhold from that deposit money to pay for damages to the premises. The landlord may not, however, withhold money to pay for damages that constitute “ordinary wear and tear”.
The tenant has the right to be present for the landlord’s inspection of the property at the termination of the lease. If the tenant wishes to exercise that right, the tenant must send a notice to the landlord, by certified mail, telling the landlord when they are moving and giving the landlord their new address. Upon receipt of this notice, the landlord must notify the tenant, by certified mail, of the date and time of the inspection. The landlord must notify the tenant of this right at the time that the lease is entered into. If the landlord fails to do this, the landlord forfeits its right to withhold any portion of the security deposit.
- Taking Possession at the Beginning of the Lease
Residential leases contain an implied covenant of quiet enjoyment. This means that the tenant has the right to peaceably and quietly enter into the leased premises at the beginning of the lease. While this may seem obvious, there are circumstances which sometimes come up where this doesn’t happen. Usually the issue arises when a prior tenant has failed to vacate the property as agreed, or there is a problem with the condition of the property which makes it unsafe for the new tenant to move in. As stated, the covenant is implied in every residential lease. This means that the tenant is protected whether or not the lease has such a written provision.
The tenant has two remedies available where the landlord fails to comply with the covenant of quiet enjoyment. The first is that the tenant may abate the rent until there is compliance. The second is that the tenant may terminate the lease based on the landlord’s failure to deliver the premises as agreed. Once the landlord delivers possession of the premises to the tenant, the tenant may not exercise either option.
If the landlord fails to comply with the covenant of quiet enjoyment and the tenant terminates the lease, the landlord must return to the tenant all rent and the security deposit that has been paid. In addition the landlord is liable for damages from the date that the tenant gives notice that it cannot enter the leased premises. This could, for example, include hotel bills and expenses for renting a storage unit as well as additional moving expenses, like the need to rent a moving truck or hire a moving company for a second time.
A landlord may not be able to honor the covenant of quiet enjoyment where the prior tenant has failed to vacate as agreed or pursuant to valid notice. In this case, the landlord should file a tenant holding over action as described below, and can join the new tenant as a party to that action.
- The Eviction Process
A tenant may be evicted, that is forcibly removed, from the leased property under certain circumstances. When a landlord is seeking to evict a tenant, the process is started by filing the proper eviction papers with the District Court. The court provides standard forms for each type of eviction which are available through the clerk’s office. Which form you need depends on the reason for the eviction. There are three types of evictions in Maryland:
- Failure to Pay Rent
Probably most common of the three types of evictions is the Failure to Pay Rent. The landlord begins the process by filing a complaint form, provided by the court clerk that lists the name and address of the landlord and the tenant, the property that is being leased, the amount of rent that is owed and other basic information. The landlord or their attorney signs and dates the form and files it with the clerk along with the appropriate fees. The court charges a fee, currently $12.00 at the time the complaint is filed. In addition, the court collects a service fee that goes to the sheriff. The service fee is $5.00 for each tenant of record.
Once the complaint form has been filed and the fees have been paid, the court will assign a trial date. This date is stamped onto the complaint form and copies are provided to the landlord and the tenant. The tenant is served by delivering a copy of the complaint to the property and posting it in a conspicuous manner as well as mailing a copy of the complaint to the tenant. The court handles service on these complaints so the landlord does not need to hire a process server like they would in a normal civil lawsuit.
On the trial date, the court calls all of the landlord-tenant cases. Often there are other types of trials, such as criminal cases, civil cases, and domestic violence cases scheduled for the same time and courtroom. When the clerk or judge calls the case, the landlord and tenant step into the well and state their positions. The landlord states the amount of rent that is due and outstanding and the tenant states whether they agree or disagree. If there is agreement, the court will enter a judgment for the landlord. If there is disagreement, the court will hear evidence from both parties concerning the amount of rent due and will enter a judgment if the landlord proves by a preponderance of the evidence that there is rent due and owing. In most cases,the court will enter a judgment for possession of the premises only. This means that the landlord has the right to reclaim the property unless the tenant pays, but not the rights normally associated with a money judgment. The court can, if there is personal service, and the landlord requests, enter a money judgment against the tenant for the rent due.
There are very few defenses available in a failure to pay rent case. Normally, the only successful defenses are that the rent was previously paid, that the landlord has miscalculated or misstated the amount of rent due, that the defendant is not a party to the lease, or there is a rent-escrow issue. Rent Escrow issues are discussed later in this article. If a tenant’s defense is that the rent has already been paid, or has been miscalculated both the landlord and the tenant should be prepared to show their evidence to the judge to resolve the dispute.
Be sure to scroll down to learn what happens after your hearing!
- Breach of Lease
A breach of lease occurs when the tenant does something that is prohibited from by the lease or fails to do something that is required by the lease. In most cases, the landlord must give the tenant 30 days written notice to vacate the premises and an opportunity to cure the defect giving rise to the breach before legal action can be taken to evict the tenant. If, however, the action or inaction of the tenant is causing clear and imminent danger to themselves, the landlord, other tenants, or the property, the landlord must only give 14 days written notice to cure.
At the expiration of the notice period, if the tenant fails to cure the defect or vacate the premises, the landlord may file a written complaint with the District Court seeking possession of the premises. If the landlord files the complaint too early, that is before the notice period runs, the landlord will not be able prove it gave proper notice and will lose in court. Like the Failure to Pay Rent complaint, the court arranges for service and notice to the tenant and schedules a hearing date.
At the hearing, the judge will determine whether the tenant in fact breached the lease and if the breach was substantial. If the court determines that there was a breach and it was substantial, then the court will give a judgment to the landlord for possession of the premises. A landlord may accept rent that is paid after giving notice of a breach of lease, but before a tenant is evicted without adversely affecting their case.
- Tenant Holding Over
A Tenant Holding Over action is instituted when the landlord desires to force a tenant out of the property at the end of the lease and the tenant refuses to leave. When the landlord desires to obtain possession of the property at the expiration of the lease, the landlord must give the tenant one month’s written notice to the tenant of their intent. If the tenant gives verbal notice to the landlord, the landlord may can also recover possession, but it is usually difficult to prove that notice was given under these circumstances. Where verbal notice is given by the tenant, the landlord is advised to follow up with written confirmation.
When a complaint is filed, the sheriff will deliver a summons to the tenant to appear in court at a hearing to show cause why restitution should not be made to the landlord. At the hearing, the judge will determine whether there is a valid lease, if so, when it expires, and whether the landlord gave proper written notice to end the tenancy. If the court determines that those requirements are met, it will enter a judgment in favor of the landlord for possession of the property.
In addition to obtaining a judgment for possession of the property, the landlord can also get a money judgment in a Tenant Holding Over action for actual damages caused a result of the tenant holding over. In order to obtain a money judgment, the landlord must first have personal service on the tenant. Personal service means that the tenant was handed a copy of the summons, usually by the sheriff, or signed for the summons where it was delivered by certified mail, return receipt requested. Landlord-tenant summons are almost always served by the sheriff. Personal service is not guaranteed, however, as it is not necessary to obtain an eviction. An eviction may be had, although no money judgment may be given, where the landlord posts the summons on the property and sends a copy of the summons to the tenant via first-class mail. Although other types of damages may be obtained, at a minimum, the landlord may obtain the apportioned rent for the period of holdover at the rate that is stated in the lease. In cases where the landlord has failed to obtain personal service over the tenant, the landlord may bring a separate case to obtain a money judgment. Special rules apply for a nonresidential tenant who is served with a summons. A nonresidential tenant may appear and defend in an eviction proceeding without subjecting themselves to a potential money judgment in the action, if the tenant asserts that the appearance is for the purpose of defending an in rem action prior to the time that evidence is taken by the court.
Like in a breach of lease case, a landlord may accept rent paid by the tenant after notice is given concerning a hold-over, without adversely affecting their case. The acceptance of the rent does not act as a waiver of the hold-over or the notice to quit, unless the parties so agree in writing. If the tenant remains on the property as a hold-over tenant, and the landlord consents, the tenant will then become a periodic tenant, either week-to-week or month-to-month, based on when the rent was payable under the terms of the original lease.
- Wrongful Detainer
A wrongful detainer action is brought where the person occupying the property has no legal right to be there. This might happen where someone refuses to leave a property after the property is sold or deeded to a new person. It could also occur when someone enter the property without the permission of the true owner and moves in. This does not apply, however when the foreclosing lender or purchaser seeks to evict the owner of the property. There is a separate procedure that applies in those circumstances which is beyond the scope of this article.
- What Happens After the Hearing?
In any of these cases, failure to pay rent, breach of lease, tenant holding over, or wrongful detainer, the court makes a determination whether the landlord or property owner is entitled to immediate possession of the property. If the landlord proves it is, by presenting testimony and evidence on the relevant issues, the court will grant a judgment for possession of the property to the landlord or owner.
In landlord-tenant cases, there is a relatively short period for appeal. The time period is four days for failure to pay rent cases and ten days for the other types of cases described in this article. The landlord or owner cannot taken any action until the appeal period has run. Once the time for appeal has expired, the landlord may file a Petition for a Warrant of Restitution with the district court.
When the Petition for Warrant of Restitution is filed, it is reviewed by a judge and the judge will sign an Order directing the sheriff’s office to restore the property to its lawful owner. The judge will also specify whether or not the tenant or occupant has a right of redemption. The right of redemption is determined at the time of the hearing. In Maryland, a tenant who is facing eviction for failure to pay rent has a right to redeem the property and avoid an eviction by paying the amount of rent determined by the court to be due and owing, together with any court costs, prior to the date and time of the eviction. A tenant facing eviction for breach of lease or holding over has no such right.
Where a tenant has had three prior judgments for failure to pay rent filed against him in the twelve months preceding the initiation of the action being assessed, the landlord may request that the right of redemption be foreclosed. If the landlord requests this and the court determines that the landlord is entitled to a foreclosure of the right of redemption, the court will, as part of its judgment foreclose the right of redemption. If this happens, the tenant no longer has the right to redeem the property by paying the outstanding rent.
A landlord or tenant may appeal from a judgment for possession of the property. In a failure to pay rent case, the appeal must be filed within four days of the judgment. In a breach of lease, tenant holding over, or wrongful detainer case, the appeal must be filed within ten days of the judgment. In most cases, an appeal will result in a new trial in the Circuit Court. In this “denovo” trial, the Circuit Court does not consider the evidence introduced in the District Court. In certain cases, such as when the amount in controversy exceeds $5,000, the Circuit Court will hear the appeal based on the evidence presented in the District Court.
A District Court judgment will not necessarily be stayed pending the outcome of the appeal. In those cases, the tenant will have to file a bond in order to stay the eviction until the appeal is decided. If the landlord is the party taking the appeal from the District Court, there is likely no judgment for possession, thus a stay is not relevant to the judgment.
- Rent Escrow
In residential leases, the tenant has the legal right to occupy a property that is free of any serious and dangerous defects. This protection applies both to the individual unit occupied by the tenant as well as the common areas. In order to exercise this right, the tenant must show the court that the alleged defect threatens the health and safety of the tenant, and is not merely an aesthetic flaw in the property. The statute is designed to protect against fire hazards and other defects which threaten the life, health, or safety of the occupants.
Some defects which will give rise to relief in a rent escrow actions include lack of heat, light, electricity or hot or cold running water. If the tenant is without these services solely because the tenant failed to pay the utility bill, however, the tenant will not be afforded any relief. Other basis for rent escrow include lack of adequate sewage facilities, infestation of rodents, structure defects which present a threat to the safety of the residents, or other condition posing a threat to the health and safety of the occupants.
The rent escrow is not designed to cure aesthetic flaws or other defects that do not affect the health and safety of the tenants. Problems concerning the appearance of paint, old or torn rugs, small cracks in the floors, ceilings and walls, the absence of linoleum on tiles or floors, provided that they are structurally sound, or the absence of air-conditioning, are not a proper basis for relief under the rent-escrow statute. If there is lead-based paint that is cracked, chipped, or peeling, however, a rent escrow action would be appropriate.
In order for the tenant to exercise their rights under the rent escrow statute, they must first give the landlord notice, and an opportunity to cure the defect. Notice shall be given by certified mail, listing the conditions or defects. Notice may also be proven if the tenant can show that the landlord had actual notice of the conditions or defects. Finally, notice can be proven through a written condemnation or other notice from a state, county, or municipal agency asserting the conditions or defects.
Once notice is given, the landlord is afforded a reasonable opportunity to repair the condition or defect. If the landlord fails to fix the problem within a reasonable time, the tenant can file a rent escrow action and ask to pay rent into the court pending the repair of the property. The tenant may also raise the issue of rent escrow as a defense if the tenant is sued for rent by the landlord.
The rent escrow statute allows the tenant to request an injunction, asking the court to order the landlord to repair the condition or defect. The tenant may be required to pay the rent due into the court registry as a condition for relief under the statute. The court has the authority to modify the amount of rent and may do so based on the condition of the property. A tenant may not obtain relief under the rent escrow statute if they have three prior judgments for rent due and unpaid against them within a twelve-month period prior to the filing of the rent-escrow action.
A landlord may raise as a defense, that the tenant refused to allow the landlord to enter the property to fix the condition giving rise to the action. The landlord may also raise as a defense that the tenant caused the condition giving rise to the action.
In a rent escrow action, the court may order the termination of the lease and the return of the premises to the landlord, subject to the tenant’s right of redemption. It may order that the rent escrow dismissed. The court may make an adjustment or abate the rent, due to the condition of the property. It may also order the landlord to make repairs to the property. At the conclusion of the case, the court will order a disbursement of any money held by it in escrow. The distribution of that money will depend on whether the landlord has made the repairs that were ordered.
- Terminating or Renewing the Lease
There are specific procedures by which a landlord or tenant may terminate a lease. These procedures apply whether the lease is for a specific term or at will, i.e. month to month or week to week. When the landlord desires to retake possession of the property at the end of a lease, the landlord must give notice, in writing, to the tenant one-month prior to the end of the lease term, or one-month prior to the time when the landlord desires that the tenant moves out.
Almost every residential lease will automatically convert to a month-to-month tenancy at the end of the initial term. By statute, if the automatic renewal period exceeds one-month, the lease must specify that in writing and the tenant must initial or otherwise acknowledge in writing that specific provision of the lease. If the lease does not contain the tenant’s written acknowledgement of an automatic renewal provision exceeding one-month, it is unenforceable.
A written lease may not require a longer notice period to be furnished by the tenant to the landlord in order to terminate the tenancy than that required of the landlord to the tenant in order to terminate the tenancy.
When notice is given to terminate, it should be specific. The party giving notice should date it, state specifically when they intend to terminate the lease and, in the case of the tenant, providing a forwarding address to the landlord. It is advisable, although not required, that the notice to vacate, or notice of intent to terminate be sent by both certified mail return receipt requested, and by first class mail. The notice could also be personally delivered. By using certified mail, however, the party creates a record proving when and how the notice was given which may be used later in court, if necessary.
There are special rules that apply for military members desiring to terminate a lease when they receive a permanent change of station, or a temporary change of station that exceeds three months duration. In addition, the landlord and tenant are free to negotiate additional clauses that would permit a premature termination of the lease, such as where the tenant obtains a job that requires her to move or the landlord desires to sell the property.
- Special Termination Rules for Victims of Domestic Violence
Maryland has a law that allows a tenant to terminate a lease where the tenant, or another occupant of the property is a victim of domestic violence or sexual assault. In order to terminate the lease, the tenant needs to provide written notice of their intent to vacate and provide a copy of the applicable protective order or peace order to the landlord. Once the notice is provided, the tenant has thirty (30) days to vacate the property. If the tenant provides notice, but fails to vacate, then the landlord may, at its option, pursue the remedies available the remedies for a tenant-holding-over. These remedies are described earlier in this article.
If a lease is terminated with respect to a victim of domestic violence, the lease remains in effect with respect to any tenant who is a respondent in an action that results in a peace or protective order for the benefit of the victim tenant or the victim legal occupant.
- Subletting and Amendments to the Lease
A sublet is when a tenant of a lease allows a new individual to occupy the property, either as a co-tenant or as the sole occupant of the property during the term of the tenant’s lease. There are no laws prohibiting the subletting of rental property in Maryland, however it is often prohibited under the terms of a written lease.
If a tenant sublets the property without the consent of the landlord, and subletting is prohibited by the lease, the tenant can be evicted and the lease can be terminated for breach of lease. If the landlord does not object to the sublet, the landlord may permit the sub-tenant to continue to occupy the property and may even accept rent from the sub-tenant in lieu of accepting rent from the original tenant.
When considering a sublease, it is important to keep in mind that the original tenant is not relieved of its obligations under the terms of the original lease. The landlord can pursue a claim for damages against the original tenant for any damage to the property or rent that is not paid by the subtenant. Essentially, in the case of a sublease, the original tenant acts as a guarantor of the subtenant’s performance under the lease.
An amendment to the lease occurs where the parties agree to change the terms of the lease. Although amendments are not required to be in writing, it is always advisable to prepare a written amendment so there is no confusion as to whether the amendment has in fact been agreed upon and the parties have clarity as to what the exact terms of the amendment are.
Almost any term of a lease can be changed by amendment, including, for example, the amount of rent, the date that it is due, the identity of the tenants, the identity of the landlord, the guarantors, if applicable, the description of the property that is being rented, the provisions for payment of utilities, and the list goes on and on. When the parties amend the terms of a lease, but less than all of the original parties sign the amendment, there may be a lease novation. In that case, any party to the original lease, who did not agree to the terms of the amendment are no longer bound by the lease. This is important to keep in mind when considering an amendment and evaluating the risk incurred in the future performance under the lease.
A landlord may not unilaterally change a lease during the initial term. If the landlord desires to change the lease after the initial term, it may do so by giving at least thirty (30) days notice to the tenant.
- How do I collect money owed to me?
After a tenancy has ended, whether it be due to the natural termination of a lease, or following an eviction, or an abandonment, there is often a claim from either the landlord or the tenant that money is due and owing from the other party. This money could be for unpaid rent or damages, or in the tenant’s case, for a security deposit that has not been returned. In either event, the landlord or the tenant may desire to pursue a claim for money damages.
In Maryland, if the damages claimed are less than Thirty Thousand Dollars ($30,000.00), the landlord or tenant may bring an action in the District Court. Complaint forms are available on the Maryland Judiciary website, https://www.courts.state.md.us/district/forms/civil/dccv001f.pdf. The form is self-explanatory and can be completed online, printed and taken to the court. When filing the form, there is a filing fee of $28.00 if the claim is less than $5,000.00 and $38.00 if the claim exceeds $5,000.00. The court gets filed with the District Court Clerk’s office. They will generate a summons which then needs to be personally served on the defendant. The summons will have a court date.
When there is a written lease between the parties, the plaintiff can file their complaint under affidavit. If this is properly done, the court can enter a judgment in favor of the plaintiff, without conducting a trial, if the plaintiff attaches sufficient evidence to the complaint and submits an affidavit in support of judgment. If the defendant files a notice of intent to defend, an affidavit judgment is not available.
Where a notice of intent to defend is filed, or the complaint is not filed under affidavit, the plaintiff will have to appear and present evidence of their case. They plaintiff will testify concerning the terms of the lease and what happened. The defendant will also be given the opportunity to present evidence. Either party can call additional witnesses, and introduce documents such as contracts, correspondence and photographs, as they determine to be appropriate.
If the plaintiff proves their case, the court will enter a judgment for money damages in favor of the plaintiff, and will also award the plaintiff the court costs for filing the complaint. If the claim does not exceed $5,000.00, the small claims rules will apply. In these cases, the court does not allow pre-trial discovery and the formal rules of evidence do not apply. This means that the judge can consider things such as hearsay evidence and may not require authentication of documents.
If the claim is for more than $5,000.00, the parties will be subject to all of the formal rules of evidence. It is advisable to hire an experienced landlord-tenant attorney in these cases.
Once a judgment is entered, the defendant will probably hand over a suitcase full of cash in the courtroom. Okay, well, if that doesn’t happen, the plaintiff will have to figure out how to collect on the judgment. Often, obtaining a judgment is the easiest part of the process. Collecting on that judgment can be difficult.
Once a judgment has been entered, and thirty days have passed, the plaintiff may file a request for an oral exam. The District Court provides a form for this request. A sample of the form is available at this link: https://www.courts.state.md.us/district/forms/civil/dccv032np.pdf
Unlike the form for a complaint, however, the form for an Oral Exam cannot be printed out from your computer. It is a carbon, multi-part form, which means that you have to go to the courthouse to obtain the form, fill it out, and file it with the clerk, along with the fee. A few days after you file the request for an oral exam, the court will assign a hearing date and a judge will sign an order directing the defendant to appear in court on that date for the oral exam. You can request, and the judge will usually order that the defendant bring documents with him when he comes to court. These would include paystubs, bank statements, titles to vehicles, and other documents reflecting information pertaining to the defendant’s assets or income.
Once you have information pertaining to a defendant’s assets and income, you can then file a request for a writ of garnishment or a request for a writ of execution/levy. A garnishment request isused when seeking to attach wages or money in a bank account. A writ of execution is used to seize personal property that is owned by the defendant to sell in order to satisfy the judgment. A writ of execution may also be used to levy against and force the sale of real property.
A judgment accrues interest at the rate of 10% per annum. A special rule applies to judgments for rent of a residential property whereby the interest rate is only 6% per annum. Interest on judgments is not compounded. Proceeds are applied to costs and interest first and then to judgment principal. When payments are made on a judgment, the plaintiff has a duty to file a monthly report with the court and provide a copy to the defendant. When a judgment is paid in full, the plaintiff must file an Order of Satisfaction notifying the court that the judgment has been paid, and provide a copy to the defendant.
It is important to keep in mind that the parties to a contract have a duty to mitigate damages. This means that the landlord must act in a timely manner and take reasonable steps to re-rent the property following an eviction or abandonment. In the event that the landlord does re-rent the property, any money received from the new tenant, during the term of the initial lease, must be deducted from the landlord’s claim against the original tenant.
The attorneys at Baldwin & Briscoe have years of experience in all aspects of landlord-tenant matters. This article contains general information about the law and is not intended to be a substitute for legal advice. In order to know how the law applies to your specific situation, you should speak to an experienced attorney. Your rights and responsibilities will depend on the specific facts of your situation. Call or email us today to set up a confidential no-obligation consultation.
If you are owed fees, dues, or debts but find your borrowers or clients refusing to pay you, there is no need to write off the money that is rightfully yours. Our attorneys have handled collections for a variety of individuals, agencies, and associations over the years, collecting debts for homeowners’ associations, funeral homes, and many other community organizations.
Help – the Debt Collectors are at My Door!
Have you ever gotten a call from a debt collection company? Remember that last month’s cable bill that you and your roommates disputed in college – ten years ago? You know that it never got paid and it keeps cropping back up again in a generally unpleasant manner. Perhaps you’ve lost a job or had an illness and just got behind on your bills. Whatever the reason, life happens! When life happens, sometimes it leaves unpaid bills along the way and this can result in an unpleasant interaction with debt collectors.
Fortunately, the law provides some protection to keep consumers from being abused by aggressive creditors. In order to take advantage of these protections, however, you need to know what your rights are. The collection of debts is regulated by the Fair Debt Collection Practices Act (FDCPA). Because this is a federal law, the law is the same anywhere in the United States. Whether a debt collector is pursuing you here in Maryland, or elsewhere, there are certain protections to which you are entitled.
The FDCPA applies to both debt collectors who are collecting on others accounts as well as creditors who use any type of alias when collecting on their own accounts. It does not apply to creditors who are collecting on their own accounts under their own names.
The FDCPA limits the information that a debt collector can provide to any third person about the collection of a debt. First, the debt collector may only identify his employer if expressly requested by the person he has called. Second, the collector may not disclose to a third party that a debt is owed. Third, the collector may, under most circumstances, only contact a third party about the debt one time. Fourth, the debt collector may not communicate by post card. Fifth, the debt collector may not use any indication on the outside envelope that the communication is in connection with a debt collection. Finally, if the debt collector knows that the person is represented by an attorney, the debt collector may not communicate with any third person other than the attorney, unless the attorney fails to respond within a reasonable period of time to the debt collector.
The FDCPA states that a debt collector may only communicate with the debtor/consumer in certain ways and at certain times. The debtor is the individual who owes or is alleged to owe the debt. A collector cannot communicate with a consumer at an unusual time or place, or in a manner which the collector knows or should know to be inconvenient to the consumer. Unless the collector has knowledge to the contrary, the collector may not call before 8 a.m. or after 9 p.m. The collector may not communication with a consumer directly when the collectors knows that the consumer is represented by an attorney, unless the attorney gives consent to direct contact, or if the attorney fails to respond within a reasonable period of time. Finally, the collector cannot contact a consumer while the consumer is at work, if the collector knows that the employer prohibits that type of communication.
A collector may not communicate with third parties about a debt. Exceptions exist which cover the debtor’s attorney, credit reporting agencies and the creditor’s own attorney. A debtor can make the collector stop communication by requesting in writing that the creditor do so. If the debtor stops communication, the creditor may contact the consumer thereafter only to notify the consumer that it is stopping collection activity, that it may or will invoke a specific remedy.
A debt collector may not harass a consumer. The collector may not threaten violence or any other action that would be a criminal offense against the consumer. The collector may not use obscene or profane language when communicating with the consumer. It may not publish the identity of consumers who refuse to pay except to a consumer reporting agency. It may not advertise the sale of the debt in an effort to enforce payment. It may not cause the telephone of the debtor to ring repeatedly in order to annoy, abuse or harass anyone at that number.
A debt collector is prohibited from providing false or misleading information in connection with the collection of a debt. A collector may not falsely state or imply that they are an agent of the state or federal government. They may not misrepresent the character, legal status or amount of any debt. They may not misstate the compensation they are entitled to receive for collecting the debt. A debt collector may not impersonate an attorney. They cannot threaten that the debtor will be arrested, imprisoned, or that property will be seized, garnished, attached, or that a person’s wages will be garnished unless such action is lawful and the debt collector intends to take that action.
A debt collector may not threaten any action that cannot be taken, or is not intended to be taken. They may not state or imply that the sale or transfer of debt will cause the consumer to lose a claim or defense in connection with the debt or that the consumer will be subject to an action which is prohibited under the law.
They debt collector may not falsely state or imply that the consumer has committed a crime or other conduct to disgrace the consumer. The collector may not communicate or threaten to communicate information about the debt that is false, including failure to communicate that the debt is disputed.
The debt collector may not use written communication that is designed to falsely imply that it comes from any court, state, or federal agency. They cannot use any false or deceptive means to contact a consumer.
The debt collector must identify itself a debt collector in the initial communication and must inform the consumer that any information collected will be used for the collection of the debt.
The debt collector cannot collect a fee from the consumer as part of the collection, unless the consumer has previously agreed to pay such a fee. The debt collector is limited in how and under what circumstances that post-dated checks may be accepted from the consumer.
Within five days after its initial communication, the debt collector is required to provide the consumer with certain information about the debt. This information includes the amount of the debt; the name of the creditor to whom it is owed; a statement that unless the consumer, within thirty days, disputes the validity of the debt, or any portion of the debt, that the collector will assume the debt is valid; a statement that if the consumer notifies the debt collector in writing, within the thirty-day period, that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt, or a copy of a judgment against the consumer, and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and a statement that upon the consumer’s written request, within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
If the consumer notifies the debt collector that the debt is disputed, following the initial communication, the debt collector may not engage in further collection activity on the debt until it receives and provides the consumer with verification of the debt from the original creditor.
If a consumer owes multiple debts, a collector may not apply any payment on an undisputed debt to one that is in dispute, and where applicable, must following the directions of the consumer in applying the payment.
If a debt collection brings a legal action, i.e., sues, a consumer, to enforce a security interest in real property, the action must be brought in the jurisdiction where that property is located. Otherwise, the debt collector may only sue the consumer where the consumer signed the contract being sued upon or where the consumer resides.
Under most circumstances, a debt-collector cannot garnish your wages, garnish you bank account, put a lien on your home, or otherwise seize any asset without first obtaining a court judgment. There are some exceptions. The most common are where the creditor has a security interest in the property by way of a lien or a contract. In addition, if you owe tax debt, you may be subject to an attachment without a judgment.
The attorneys at Baldwin & Briscoe have the experience to get the debt collectors off of your back. Whether or not the debt is disputed, we can assist you in resolving a debt-collection matter. You don’t have to wait until you are sued to retain an attorney. Often, retaining an attorney will allow you to work out a solution that can avoid a lawsuit altogether.
If you are sued, the debt collector, under most circumstances, must obtain a judgment before it can take any property. Depending on the amount of the suit, and the court in which it is brought, this can take anywhere from approximately two-months to a year. You can negotiate a resolution of the debt while the suit is pending that may be able to avoid a judgment being entered against you.
If you are facing a debt-collection situation, contact the attorneys at Baldwin, Briscoe & Steinmetz to understand your rights and responsibilities and discuss a plan for resolving the situation.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin, Briscoe & Steinmetz, P.C. can assist you if you are facing a debt collector. Call today to schedule a consultation.
I Won My Case and got a Judgment, but the Defendant Didn’t Pay - now what?
Collecting on Judgments in the State of Maryland
Bob loans Larry $1,500. Larry promises to pay him back in three months. After six months goes by without payment, Bob sues Larry and gets a judgment. Now, another six months have gone by and Bob has his judgment, but not his money. What can Bob do to get paid?
It is rather pointless to go through the trouble of suing someone and getting a judgment against them if you are not going to get the money you are suing for. The truth is that many judgments which are entered by courts around the country every day will never get paid in full, and many will never even be partially paid. According to some estimates, 79 percent of judgments are never collected.
Judgment collection is an area of law that many attorneys avoid. It is technical, but once you have an understanding of the rules, it is relatively straightforward and not difficult. At Baldwin, Briscoe & Steinmetz, P.C., we’d be happy to meet with you and develop a strategy for collecting on your judgment. If you wish to hire us to handle the collection, you can sit back and relax while we do the heavy lifting. In some case, we’ll handle judgment collection on a contingent basis, while other times judgments are handled on an hourly basis. The specific circumstances surrounding your judgment will dictate which fee structure applies to your case.
There are several tools that are available to plaintiffs who seek to enforce a judgment in the state of Maryland. Knowing how to use these tools effectively will provide you with the best chance of getting paid.
The first thing you should know is that you have to wait at least ten days before you can take steps to enforce your judgment. This is called an “automatic stay of enforcement.” A court may order that a judgment be “stayed” beyond the ten days in some circumstances. When an appeal is taken, there are specific steps that the appealing party may take to stay a judgment. In some cases, the appellant may be required to file a bond or other security with the clerk of the court to protect the other party against loss that results from the delay in enforcement. Many times, the court will condition a stay beyond the ten days provided for by law upon the filing of a bond or other security.
After obtaining a judgment, the plaintiff often will want to conduct discovery in aid of enforcement. This allows the plaintiff or “judgment creditor” to find out information concerning the defendant’s (“judgment debtor”) financial income and assets which can be used to satisfy the judgment. In the District Court, there are two methods by which the judgment creditor can conduct discovery. The first is by use of Interrogatories in aid of Execution. The judgment creditor can send the defendant written questions that the defendant is required to answer. These questions generally include requests for information about the employment, assets, and banking of the defendant. The second, and more effective means of discovery is by way of an oral examination.
An oral examination takes place in court, similar to a trial. In most cases, however, the judge will swear the defendant in and then allow the plaintiff to ask questions of the defendant outside of the courtroom. This is to protect the privacy of the defendant’s financial information. In addition to the defendant, the plaintiff can request an oral examination of a third party if it is probable that the defendant is indebted to that person, or that they are holding property belonging to the defendant. An oral examination is requested by the plaintiff by filling out a court form and filing it with the clerk. There is a small fee associated with this. Once the plaintiff requests an oral examination, the clerk will generate an order and the plaintiff must personally serve the defendant with the order by the deadline set out in the order. Only if the plaintiff obtains service on the defendant will the plaintiff be able to conduct the oral examination.
If the defendant fails to answer Interrogatories in aid of Execution, or fails to show up for an oral exam, the plaintiff may request authorization to file a request for a Show Cause Order. There is a court form to request a Show Cause Order. Once the court generates the Show Cause order, the plaintiff must then serve the defendant with the order. The Show Cause order will have a court date. The defendant will have to show up on that court date and tell the judge why he or she didn’t comply with the Oral Examination or answer the Interrogatories in aid of Execution. If the judge signs the Show Cause Order, and the plaintiff properly serves it, and the defendant fails to appear, the plaintiff can then request that the court issue a body attachment, authorizing the sheriff to take the defendant into custody and bring him before the court.
Once he has the information concerning the defendant’s assets and employment, the judgment creditor can take steps to enforce the judgment. Depending on what type of assets are owned by the judgment debtor, the judgment creditor has various tools at his disposal. Let’s see how we can get Bob paid!
Generally, assets and income are seized by the issuance of a writ. There are various types of writs which the court will issue to help the plaintiff get his money. A writ is issued when the plaintiff fills out a request for the writ and files it with the clerk. Generally, a small fee will apply. Let’s look at the specifics:
A writ of execution is an order directing the sheriff to levy upon specific property of the judgment debtor. The plaintiff can seek a writ of execution on either real property, or personal property that is owned by the defendant. If a writ is sought with respect to real property, the plaintiff must first record the judgment as a lien in the Circuit Court.
A writ of garnishment is an order used to obtain property of the debtor that is in the hands of a third party. This means that if the debtor has money in a bank account, or a lawn mower that has been lent to his neighbor, you can seek to obtain that property in order to satisfy the judgment.
A writ of wage garnishment is used to attach wages that are earned by the defendant. When a writ of wage garnishment is issued, the defendant’s employer will send a check to the judgment creditor on a weekly, bi-weekly, or monthly basis. This payment is then credited against whatever is owed on the judgment.
It is the plaintiff or judgment creditor’s job to keep track of what payments are made on the judgment. Judgments are generally subject to 10% interest per annum. Judgments based on rent for a residential premises are subject to 6% interest per annum. The judgment creditor is required to complete and mail to the garnishee and the judgment debtor a statement disclosing the payments made and the manner in which they were credited within 15 days after each month in which any payment is received on the judgment.
If the judgment-debtor has an interest in a partnership, the judgment creditor may ask the court for a charging order, charging the partnership interest of the judgment debtor with the payment of all amounts due on the judgment. The court may order further relief, including the appointment of a receiver for the judgment debtor’s share of the partnership profits and any other money that is or becomes due to the judgment debtor by reason of their partnership interest.
Knowing about these tools and how to use them can mean the difference between having a piece of paper showing that you are owed money and getting paid. If you are owed money on a judgment, come talk with us. We’ll be happy to help you.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin, Briscoe & Steinmetz, P.C. can assist you if you are trying to collect on a judgment. Call today to schedule a consultation.
A confessed judgment is an enforcement tool that is used to provide added security for a promissory note or loan. Under normal circumstances, if a borrower defaults on a loan, the lender has to go to court and sue the borrower. After the suit is filed, a trial date is set and after the trial, a court will enter a judgment in favor of the lender, provided that the evidence supports its claims. At trial, the burden is on the lender to prove the existence of the loan, the legal liability of the borrower, and the amount that is due.
A confessed judgment note is an agreement between the lender and the borrower that, in the event that the borrower defaults on his obligation, allows the lender to go to court and get a judgment against the borrower without having a trial. Unlike a normal case in which a judgment is entered only after a hearing before a judge, in a confessed judgment case, the rules allow for the judgment to be entered by the Clerk of the Court provided that plaintiff supplies the right documents when filing. In order to get a confessed judgment, the plaintiff must file a complaint; an original or photocopy of the written instrument which authorizes the confession of judgment; and an affidavit stating the amount that is due and the address of the defendant.
Upon filing of an action for confessed judgment, the court, if it is satisfied with the pleadings, will issue a notice informing the defendant of the entry of the judgment and of the latest time for filing a motion to open, modify, or vacate the judgment. The plaintiff must serve the defendant with the notice and copies of the original pleadings in the same manner as one is ordinarily required to serve a lawsuit.
A confessed judgment has all of the attributes of any other kind of judgment and functions as a lien against any real property belonging to the defendant in whichever counties it is recorded. A confessed judgment, after it is entered may be opened, modified, or vacated by the defendant upon a showing that the defendant has a meritorious defense. To do this, this defendant must file a motion and state in the motion the legal and factual basis for his defense. If the defendant requests a hearing on his motion, he is entitled to one by law. The defendant must file this motion within the time limits that are ordinarily provided for filing an answer. This may be thirty to ninety days depending on where the defendant resides.
If the court finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action, the court will order the judgment by confession opened, modified, or vacated and permit the defendant to file a responsive pleading. Normally a plaintiff may not takes enforcement action such as selling the defendants property and an employment may not remit wages under a wage garnishment prior to the time period for filing the motion to vacate has expired and any motion filed by the defendant has been ruled on by the court.
A confessed judgment may be entered prior to the maturity date provided for in a loan, if the loan allows for early entry. A note that allows for confession of judgment any time after maturity will not allow for entry until the note is due.
If you are seeking to enforce or defend an action involving a confessed judgment, consider contacting the Law Offices of Baldwin & Briscoe, P.C. Our attorneys are experienced in collection matters and have litigated both sides of Confessed Judgment cases. We’d be happy to review and discuss the specifics of your situation with you, without any obligation on your part.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin & Briscoe, P.C. can assist you if you are involved in a confessed judgment matter or any civil litigation or collections situation. We’d be happy to sit down with you and review your situation and provide appropriate advice. Call today for your no-obligation consultation.
Small claims cases are cases that involve a value of $5,000 or less. Maryland law allows you to have an attorney represent you. A lawyer’s experience and knowledge of the court system can be invaluable in a small claims course, where many rules exist to determine what evidence can be brought to court and how it may be entered.
How to Represent Yourself in Small Claims Court
Let’s face it, hiring an attorney costs money. As seasoned litigators, we are sensitive to the financial aspects of our client’s cases. “How much will this cost me?” is always a consideration in evaluating whether or not to hire an attorney to represent you in court. The truth is that in some matters, you can effectively present your case to the court without an attorney. In these situations, it may be in your best interest to consult with an attorney for advice prior to filing your claim, or to get some help along the way to make sure that you are ready for court. This page provides some general guidelines to help you represent yourself in small claims court. It is not legal advice, but will give you some basic information on the mechanics of court that can assist you with whatever situation brings you to small claim court.
Filing the Complaint
In Maryland, as with most jurisdictions, a court case begins when the plaintiff files a complaint. The complaint is a form or paper prepared by the plaintiff that specifies (1) what court the case is being filed in ; (2) who are the parties, i.e. the plaintiff and the defendant; (3) the nature of the lawsuit, i.e., the facts giving rise to the complaint; and (4) the remedy that is being sought by the plaintiff in the case. The plaintiff is the person who is suing, or filing the complaint and requesting that the court provide some type of remedy. The defendant is the person who is being sued.
The Maryland Judiciary provides a form, which any plaintiff can fill out and file with the court. Here is a link which you can click to open up the form. You can fill out the form online and print it yourself for filing with the court.
You can file your complaint at the clerk’s office of the district court which has venue over your case. Venue exists where the defendant resides, works, carries on a regular business, or habitually engages in a vocation. There are rules which provide for additional venue as well that are beyond the scope of this page. In a negligence action, you can sue where the cause of action arose. Usually, the appropriate venue will be obvious based on the facts of your case. It currently costs $34.00 to file a small claims action, which must be paid when you file your complaint.
Once you file your complaint, the court will generate a summons. A summons is the document which notifies the defendant that he or she has been sued. In a District Court case it provides the court date, courtroom assignment and the time of the trial. In District Court cases, the summons has a Notice of Intent to Defend for the defendant in the case to complete and send back to the court to let the court and the plaintiff know that the case will be contested.
The plaintiff must serve the defendant with the complaint and summons for the case to go forward. Service simply means that the summons and a copy of the complaint are delivered to the defendant, or an adult at their residence. The plaintiff, as a party to the case, cannot serve the defendant, but must instead have another adult provide the summons and complaint to the defendant. Once the defendant is served, the person who served it should complaint an affidavit of service and the plaintiff must file this with the court to let the court know that the case will proceed. If you don’t file a return of service with the court, the court will not know to put your case on the court docket to be heard by the judge.
If you have a case in which you are requesting money damages, you can ask the court to enter judgment by affidavit. You must make this request on the complaint-form which you file with the court. An affidavit must be made on personal knowledge. It has to set forth facts which would be admissible in evidence and show that the affiant is competent to testify to the matters stated in the affidavit. The affidavit must include or be accompanied by any supporting documents or statements containing sufficient detail to show liability and damages in the precise amount of the claim. If your claim involves interest, you must complete and submit an interest worksheet as part of your complaint. If your claim is based on a note, or other document, you must include a copy of that document as an attachment to your complaint.
When you file a complaint under affidavit, you only have to appear if the defendant files a notice of intent to defend, or if the court issues a notice to appear because your affidavit is insufficient for the court to enter a judgment. In all other circumstances, you must appear on the date stated for trial on the summons. The court will notify you by mail if a notice of intent to defend is filed in your case. Usually, the defendant will also send you a copy of the notice of intent to defend. If the defendant is represented by an attorney, they are required to send you a copy.
If the defendant does not file a notice of intent to defend, and your case is filed under affidavit, the court will rule on your complaint on the day of trial. If the defendant shows up in court, or the court finds that your complaint is deficient in any way, the case will be postponed and you will receive a notice from the court of the new date.
Your Day in Court
On the day that your case is scheduled for trial, you must show up with all of the evidence that you intend to present to the court. Generally evidence is presented in two forms. Evidence is presented through the testimony of witnesses and by the introduction of exhibits. Each person who is called on to offer information about your case is considered a witness. Depending on the nature of your case, you may be the only witness, or you may have multiple witnesses.
If you are the plaintiff in the case, you will present your side of the case first. When the case is called, you should be prepared to know who your witnesses are and what questions you are going to ask. As a party to the case, it is your responsibility to ensure that the witnesses needed to present your case are present in court on the day of the trial. You can request subpoenas from the clerk’s office to ensure their attendance. Subpoenas must be properly completed and served in the same manner as your complaint.
If you intend to introduce exhibits, such as photographs, contracts, letters, or other documents, you should make several copies before you go to court. Generally, you should provide a copy of each document to each other party in the case as well as the court. You’ll want to maintain a copy of each document you present for your own file as well.
You would present your case by calling each witness who is there to testify about the events giving rise to your claim. When you call the witness, the clerk will swear in the witness, and then you can proceed with your questioning. Court testimony is presented in a series of questions and answers. You ask the witness a question related to the case and they answer. The judge will consider all of the testimony of all of the witnesses before rendering an opinion.
After you have presented each witness, the party on the other side will have the opportunity to cross examine your witness. This means that the other party can ask questions that challenge the credibility of the witness’s testimony. In most circumstances, the judge will then allow you to ask the witness some additional questions. Lawyers call this “redirect.”
If you want the judge to consider a document, such as a photograph or writing, you must introduce it through a witness. To do this, you would ask the witness to identify the document, and then ask a question or two about it. This is a relatively simple process. For example:
First, you want to ask the judge if you may approach the court clerk to mark your exhibit, then, direct your attention to the witness:
Q: Can you identify what has been marked as Plaintiff’s Exhibit 1?
A: Yes, this is a copy of the contract between Mr. Jones and Mr. Black.
“Your honor, I move to admit Plaintiff’s Exhibit 1 into evidence.”
In a small claims case, the parties are often the same persons who will present testimony. When this occurs, you can simply tell the story of what happened. You must still ask to admit whatever documents you want the court to consider as exhibit.
Once you have presented all of the evidence in your case, you should tell the judge that you wish to “rest your case.” When the plaintiff rests, the defendant will then get to call witnesses and present evidence in the same manner. At the end of the defendant’s case, the plaintiff has an additional opportunity to put on rebuttal testimony. Rebuttal testimony should be limited to addressing points that are made by the defendant during his case. Rebuttal testimony is not the time to introduce new facts into evidence. That should be done in the plaintiff’s initial presentation, often called their “case-in-chief.”
After both the plaintiff and the defendant have presented their case, and any rebuttal evidence is presented, the judge will usually give the parties an opportunity for summation or closing argument. During your summation, you have the opportunity to summarize any evidence that was presented during the case and tell the judge why you believe that he or she should rule in your favor. It is important that you stick to the evidence that was presented in your argument. Summation is not the time to introduce new facts into evidence.
After both parties have presented their summation, the judge will usually render an opinion. In District Court, the judge will usually give the opinion to the parties right at the end of the case. The judge will indicate who wins and will explain how he came to the conclusion that he did. The clerk will mail a written copy of the judgment to the parties a few days after the trial has concluded.
Burden of Proof
The plaintiff in the case has the burden of proof. This means that the plaintiff has to convince the judge of the facts necessary to establish his claim. If the judge is undecided after the evidence is presented, then the law requires him to rule for the defendant. In most civil cases, the plaintiff’s burden of proof is by a preponderance of the evidence. This means that the plaintiff must present evidence to show that it is “more likely than not” that the things that are alleged in the complaint happened. In cases alleging fraud, the standard is “clear and convincing evidence.” The criminal standard is “proof beyond a reasonable doubt.” As you can see, there is a much lower bar in a civil case then in a criminal case.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin & Briscoe, P.C. can assist you with your case, even a small claims case. Call today to schedule a consultation with one of our attorneys who can provide information and advice specific to your situation. Even if you don’t intend to retain an attorney to represent you in court, having a consultation can help you better organize and present your case in court which will increase your odds of success.
A tort is a civil wrong for which the law provides a remedy.
In addition to being a criminal offense, an assault is also a civil tort. An assault is simply a legal term used when a person is intentionally threatened by another person. In order for the assault claim to be actionable, the person making the threat must at least appear to have the ability to carry out the threat. The defendant’s actions must raise in the plaintiff’s mind the apprehension of imminent bodily harm. Unlike a battery, however, actual physical contact is not necessarily in order for there to be an assault.
It is not necessary that the defendant actually had the ability to carry out the threat, only that the plaintiff had that belief. An assault is judged subjectively from the plaintiff’s perspective. This means that even if a reasonable person would not have been placed in fear, an assault can still occur when the plaintiff is placed in fear.
It doesn’t even have to be the plaintiff that the defendant is intending to harm. If the defendant directs their actions to a third person, but nevertheless places the plaintiff in fear of imminent bodily harm, an action for assault can be made.
In an assault claim, the plaintiff may recover for economic damages such as medical bills, other out-of-pocket expenses and lost wages, as well as non-economic damages for humiliation, disgrace, or loss of dignity. A plaintiff may also recover nominal damages, even without sustaining an injury.
An assault claim can also provide the basis for punitive damages.
For more information about personal injury claims, click here.
The tort of negligent entrustment places personal liability on a property owner who negligently entrusts the property to another party. For liability to attach, the owner of the property must have knowledge about the propensities or lack of ability of the person to whom the property is entrusted. The risk presented must be foreseeable.
To prove a claim for negligent entrustment, the plaintiff must show the following elements:
- That the defendant supplied some personal property to a third person.
- That the defendant knew or should have known that such third person, due to youth, inexperience, or otherwise, was likely to use the property in a manner that would present an unreasonable risk of physical harm; and
- That the defendant knew, or should have known, that the persons at risk of harm would be the entrustee, or other persons whom the defendant should expect to share in or be endangered as a result of the use of such personal property.
While this sounds complicated in the abstract, let’s take a simple example: Tom and Jerry are drinking at a bar. Tom can see that Jerry is clearly intoxicated. Nevertheless, Tom gives Jerry his keys and tells him to take it for a spin. Jerry proceeds to crash the vehicle, causing serious injury to Tweety. Tweety now has a claim for negligent entrustment against Tom.
A defendant can be charged with knowledge when the defendant should inquire into the circumstances further but fails to do so. There is no specific test or hard rule concerning exactly what knowledge is required, rather it is evaluated on a case-by-case basis.
Negligent entrustment cases are sometimes brought against parents of children, employers and lessors of property.
Even a gift can be the basis of negligent entrustment. In one case, the Maryland Court of Appeals has held that a third party could not recover against the parents of the driver of the vehicle which caused them injury, even where the parents were aware at the time that they gave the driver a car that his conduct was reckless, because the parents did not have the present ability to control the behavior of their driver, and also lacked authority over the automobile.
Uninsured Motorist Claims
In Maryland, it is unlawful to operate a motor vehicle on a public highway without appropriate insurance coverage. Each motorist is required to carry an insurance policy providing for at least $30,000.00 per person in benefits and $60,000.00 per accident as well as $15,000.00 in property damage. Driving a vehicle in violation of these requirements is a misdemeanor criminal offense that carries hefty fines and a potential jail time.
Although the law requires that motorists carry insurance coverage, not everyone follows the law. Fortunately for the law-abiding folks among us, all insurance policies, by law, provide some degree of coverage for the policy holder in the event that they are involved in an accident with an uninsured motorist. When a claim is made against an uninsured motorist policy, the plaintiff can file against their own insurance company to provide benefits based on the injury caused by an uninsured third-party.
A plaintiff can recover on an uninsured motorist policy to the extent that the coverage limits on that policy exceed the limits of the at-fault party’s insurance coverage. So, for example, if Bob negligently runs his car into the back of Jody’s truck, causing injuries, and Bob’s insurance policy limits, through El Cheapo Indemnity Co. are $30,000 per person, Jody can sue both Bob and the NoStates Casualty Company, Jody’s own insurer. Assuming that Jody’s policy limits are $100,000 per person and Jody obtains a judgment against Bob for $80,000 at trial, then El Cheapo, Bob’s insurer, will pay Jody the first $30,000 of that judgment, with the remaining $50,000 being paid by NoStates.
On the other hand, if Jody’s policy limits with NoStates are only $30,000, even though his judgment exceeds Bob’s policy limits of $30,000, Jody will not be able to recover any additional money, regardless of how big his judgment is.
Maryland law prohibits adding or stacking insurance coverage under more than one policy of insurance for damages arising out of the same occurrence. Further, if a plaintiff recovers under a worker’s compensation claim, the amount recovered from any related uninsured motorist claim must be reduced by the amount of workers compensation proceeds actually received by the injured party.
Intentional Infliction of Emotional Distress
The tort of intentional infliction of emotional distress exists to provide a remedy to an individual who is the victim of another’s extreme and outrageous conduct. There are four elements that a plaintiff must prove when asserting a claim for intentional infliction of emotional distress.
- The defendant’s conduct was intentional or reckless
- The defendant’s conduct was extreme and outrageous
- The defendant’s conduct caused the emotional distress experienced by the plaintiff; and
- The plaintiff suffered from severe emotional distress
In order for the court to find conduct as intentional or reckless, it must determine that the defendant intended to cause the plaintiff distress and was certain or substantially certain that such distress would result from his conduct.
Conduct is considered extreme and outrageous when it goes beyond the bounds of decency. The court has described the necessary conduct as going “beyond all possible bounds of decency and…be regarded as atrocious, and utterly intolerable in a civilized community.” Valid claims for intentional infliction of emotional distress occur infrequently due to the high standard of proof that is required. Although each case must be evaluated on a case-by-case basis, conduct such as threatening legal action, using insulting language and mere name calling have at times been rejected as insufficient to be a basis for liability under this tort.
Severe emotional distress is the kind of distress that inhibits the plaintiff’s ability to function day-to-day. It has been described by the Maryland Court of Appeals as more than “a reasonable man could be expected to endure.” Such distress may result in severe depression, anxiety, sleeplessness, headaches and illness.
In a successful claim for intentional infliction, the plaintiff can recover both compensatory and punitive damages.
It is important to note that there is no claim in Maryland for negligent infliction of emotional distress.
A trespass occurs when a person physically enters onto another person’s property in an unlawful manner without the owner’s consent. It does not matter whether the entry upon the land was intentional or accidental. It does not require that the owner of the land suffered any injury or damage as a result of the entry. A property owner can recover nominal damages, such as one dollar, where a trespass occurs and no damages are sustained. A trespass action can be asserted by a non-owner who has a possessory interest, such as a tenant.
The measure of actual damages for a trespass is fact-specific. Where the trespass is committed by the defendant occupying real property, damages can be assessed based on the fair market rental value of the property occupied. Where a structure or other improvement is destroyed, the damages can be measured by the value of the improvement, or by the cost to rebuild or repair the improvement.
Trespass actions commonly occur in relation to misplaced fences, gardens, sheds and other items of personal property on or near a boundary line. A trespass action is a typical way to resolve an issue involving a boundary dispute.
A plaintiff can recover punitive damages against a trespasser if the trespass is committed with actual malice.
There is no claim for trespass, nuisance, or even negligence, based on a neighbor’s encroaching trees. A neighbor may however rely on self-help and cut the tree or growth back to the property line.
When a person files a negligence claim in court, they are alleging that the defendant has failed to abide by some standard of conduct and that the defendant has breached a duty of care that has injured the plaintiff in some way. The most typical form of a negligence claim arises when there is an automobile accident. Negligence claims can arise from many different factual scenarios.
In bringing a lawsuit for negligence, the plaintiff must plead and prove the following elements:
- That the defendant owed a duty of care to the plaintiff.
- That the defendant took some action, or failed to take some action resulting in a breach of that duty of care.
- That as a result of the defendant’s breach of the duty of care that the plaintiff has been injured or has suffered monetary loss; and
- That the loss or injury that the plaintiff has incurred is proximately caused by the action or inaction of the defendant.
In evaluating a potential negligence action, the first thing that the plaintiff must consider is what duty is owed to him by the defendant. The duty that is owed to the plaintiff depends on the relationship, if any, between the parties. Generally, there are two things to consider when evaluating whether a duty exists: (1) the nature of the harm that is likely to result from a failure to exercise due care; and (2) the relationship that exists between the parties.
For a duty to arise, there must be some close or direct effect between the defendant’s behavior and the injured party. A person is required to take reasonable care to avoid acts which would injure others. The existence of a duty depends on whether the harm that might result is foreseeable as well as what is in the public interest. A duty exists where a person knows or should know that certain conduct imposes an unreasonable risk of harm to another.
Generally, a person does not owe any duty to render aid to a person in distress or to intervene to protect another person from a criminal act. Whether a duty is owed can also depend on the nature of the relationship between the parties.
If there is a duty, then the next consideration is defining that duty. For adults, the standard of care is ordinary and reasonable care. For children, the duty is that care ordinarily exercised by children of the same age, capacity, discretion and experience under similar circumstances.
There are various circumstances in which a standard of care higher than ordinary and reasonable care applies. An public bus driver, for instance, owes his passengers the highest degree of care to provide safe means and methods for transportation.
Negligence often arises in the context of premises liability. This may occur for instance where here is a slip and fall on a wet floor, or a displaced floor tile. The owner of real property generally owes some duty to those coming on his property. The extent of that duty, however, depends on the nature of the relationship.
Invitee. An invitee is an individual who is on the property for a purpose related to the landowner’s business. A patron in a store is an invitee. A landowner or tenant has a duty to use reasonable and ordinary care to keep the property safe for invitees to protect the invitee from injury caused by any unreasonable risk that the invitee,
exercising ordinary care, would not discover
Licensee. A licensee is an individual who is a social guest. The owner owes a licensee a duty to exercise reasonable care to warn the licensee of any dangerous conditions that are known to the owner, but not readily discoverable.
Bare Licensee. A bare licensee is a person that is on the property, but for his or her own purposes. For a bare licensee, the duty on the landowner is only to refrain from willfully and wantonly injuring the bare licensee and refrain from creating new, undisclosed sources of danger without warning the licensee.
Trespasser. A trespasser is a person on the property without permission. A landowner owes no duty, except to refrain from willfully or wantonly injuring him.
The owner of a business is not automatically legally liable because someone gets hurt on the premises. In fact, there is not even a presumption of negligence. The duty is on the injured party to show that a breach of duty occurred. Where, however, the owner, or an agent of the owner, such as an employee, has knowledge of a danger, that employee has a duty to take action to protect the invitees against the danger.
Maryland law does not recognize “dram shop liability.” A “dram shop” claim allows an individual injured as a result of someone’s consumption of excessive alcohol to recover against the establishment that served the alcohol. Dram shop laws would provide an additional source of relief from the victim of a drunk driving accident, for instance.
There are various defenses to a negligence claim under Maryland law.
Assumption of Risk. A plaintiff cannot recover if the plaintiff has assumed the risk of the injury. A person assumes the risk of an injury if that person knows and understands, or must have known and understood, the risk of an existing danger, and voluntarily chooses to encounter the risk. When a person engages in an activity such as a sport, they assume the normal risks incident to the activity, but not any enhanced risk, unless they have specific knowledge of the enhanced risk.
Contributory Negligence. A plaintiff cannot recover if the plaintiff’s negligence is a cause of the injury. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff’s negligence was a cause of the plaintiff’s injury. It does not matter, under Maryland law, how much the plaintiff’s negligence contributed to the loss. If the plaintiff’s negligence contributed, even a little bit, Maryland law completely bars recovery by the plaintiff. Contributory negligence can be avoided in some circumstances where the defendant had an opportunity to avoid the injury after the plaintiff’s negligence occurred and fails to do so.
Proximate Cause. Proximate cause means that the injury sustained is the natural and logical result of the defendant’s negligent action. There must be a nexus between the defendant’s action and the plaintiff’s injury. In the absence of a causal link, the defendant, even though negligent, is not legally liable for the plaintiff’s injury. An important question here is whether the injury was a naturally foreseeable result of the defendant’s negligence.
A person who is the victim of negligence must prove damages to obtain a verdict. There are a number of things that the plaintiff in a negligence action can recover. These include:
Medical expenses incurred as a result of the injury
Medical expenses that will be incurred in the future
Loss of past earnings
Loss of future earnings
Noneconomic damages, including compensation for pain and suffering, inconvenience, physical detriment,
disfigurement and loss of consortium
Other out of pocket expenses incurred as a result of the negligent act
Generally, the plaintiff in a negligence action does not recover punitive damages. However, there is a possibility of recovery of punitive damages where the defendant’s conduct is characterized by evil motive, intent to injury, ill will, or fraud.
Defamation - Injurious Falsehood
One type of defamation case exists where an individual publishes a false statement not about a person, but about the person’s business or property. If Jay’s Jewlers ran an advertisement in the newspaper falsely claiming that Rock Bottom Diamonds were selling cubic zirconium rings and passing them off as real diamonds, this would be an example of an injurious falsehood.
An injurious falsehood is the publication of a matter derogatory to the plaintiff’s title to his property, or its quality, or to his business in general, or even to his personal affairs, in a manner that is calculated to prevent others from dealing with the plaintiff or to otherwise interfere with his dealings with others.
An important component of the claim is that the plaintiff must establish that the defendant acted with malice, i.e., intentionally or with reckless disregard for the truth, and that the statement was published to a third party. The plaintiff must also prove that the falsehood played a material and substantial part in inducing one or more third party not to deal with the plaintiff.
The plaintiff may not recover for emotional distress or bodily harm under this tort, but punitive damages are sometimes allowable.
Invasion of Privacy
The tort of invasion of privacy is designed to protect individuals from unreasonable intrusions upon their private lives by other people. There are several different factual scenarios under which this tort can apply.
Intrusion Upon Seclusion. One type of claim for invasion of privacy arises when the defendant does something to unreasonably interfere with the privacy of the plaintiff. For an intrusion to be actionable, the matter into which there was an intrusion must be one which the plaintiff is entitled to keep private and intended to keep private. An action arises based on the intrusion itself and no publication is required on the part of the plaintiff for the tort to be actionable. An intrusion upon seclusion may arise from a private wiretap, surreptitious videotaping
For an invasion of privacy claim based on intrusion upon seclusion, the plaintiff must prove three things: (1) that there was an intentional intrusion; (2) into a private place, or affairs of another; and (3) such intrusion would be highly offensive to a reasonable person. An intrusion may or may not involve a trespass onto another’s private property.
Appropriation of Name or Likeness. A claim may be brought where the defendant uses the name or picture of the plaintiff without the plaintiff’s consent. For example, if a company used a name or photo of you for advertising purposes, without getting your permission, you may have a legal claim. To succeed on a claim involving an appropriation of name or likeness, the plaintiff would have to prove that the defendant intentionally took, appropriated or used the plaintiff’s name or image and that the defendant benefited or intended to benefit from the name or image.
The incidental use of a name or likeness will not give rise to a claim. The fact that you are caught in a photograph that is published in the newspaper does not mean you have been wronged. The use of the name or image must be for the purpose of taking advantage of the subject’s reputation or prestige.
Unreasonable Publicity to Private Life. An invasion of privacy claim may be proven by showing that the defendant has given publicity to facts about an individual which are not a valid concern to the public and which would be highly offensive to a reasonable person. It is important that the facts which are given publicity are private and not public. In addition, this tort is designed to address information that is broadly shared. Disclosing information to a single person may be insufficient to create an action.
Placing a Person in a False Light. An invasion of privacy claim may be proven by showing that the defendant knowingly or with reckless disregard for the truth causes another to be publicly placed in a false light. This occurs when the defendant gives publicity to something about the plaintiff that is wrong of misleading, that the information provided by the defendant would be highly offensive to a reasonable person and the defendant acts knowingly or recklessly. Publication of true, but confidential information will not give rise to a claim for placing a person in a false light.
Wrongful Death and Survival Actions
Unfortunately, sometimes a person is killed as a result of another’s negligent actions. If you are the family member of an individual who has been killed by another’s negligence, there are remedies available to provide you with compensation. Of course no amount of compensation is going to bring back your loved one, or provide a substitute for having them in your life. The loss of a loved one often presents not only emotional hurdles, but financial ones as well. The law is designed to at least provide some economic relief when an individual is negligent in causing the death of another person.
A wrongful death claim differs from a survival action based on who can bring the claim and its purpose. A wrongful death claim is designed to provide a remedy for persons who have lost a loved one as a result of another’s negligence. A survival action may be brought on behalf of the estate of a decedent for any action which they could have pursued, but for their death, typically for conscious pain and suffering that preceded death. In cases involving accidental death, such as a car accident, these two claims may co-exist. The survivor may pursue a wrongful death claim while the estate may bring a survival action.
A Maryland wrongful death claim exists because the legislature has passed a statute allowing the claim. The following elements must be proven to prevail on a claim for wrongful death:
- proximately caused by the negligence of the defendant;
- resulting in damages to person(s) listed in the statute;
Generally a party has three years from the death of the person to file suit; however in some cases additional time may be permitted.
A wrongful death claim may be brought by the spouse, parent, or child of the deceased person. If there is no person who qualifies in these roles, another person who was related to or substantially dependent on the deceased person may make a claim.
A wrongful death claim is brought for the benefit of the decedent’s survivors. A survival action is brought by the personal representative of the decedent’s estate, to recover on behalf of the decedent, and for the estate, damages, such as pain and suffering, sustained by the decedent prior to his or her death. The beneficiaries of a claim for wrongful death may or may not be the same as the beneficiaries of a survival action. It depends on whether the decedent had a will and if so who the beneficiaries were.
Wrongful death claims may compensate the plaintiff for financial loss, but may also cover things such as loss of consortium, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance and education.
Generally, an action for wrongful death must be brought within three years of the death of in the injured person. Where the death is caused by exposure to toxic substances in the workplace, the action may be brought within ten years of the death or three years after the cause of death is discovered, whichever is shorter.
As mentioned above, a survival action is designed to provide recovery for the deceased victim of another’s negligence. In other words, it is brought, on behalf of someone who has died, for pain and suffering that occurred following a negligent act, but before the death. In order to successfully prove a survival claim, the plaintiff must show: (a) that the defendant’s negligence was the direct and proximate cause of the decedent’s injuries; (b) that the decedent lived following the injuries; and (c) that between the time of injury and the time of death, the decedent experienced conscious pain.
Even a short period of time can be enough for the decedent to experience conscious pain. Compensation can also be attained for pre-impact fright suffered by the deceased.
The legal system is designed to protect those who are wronged and to prevent persons who did not do wrong from suffering adverse consequences as a result of wrongful accusations. Sometimes, however, individuals are charged with committing a crime when in fact they are innocent. The state has a high burden of proof in criminal cases. It must prove that the defendant is guilty beyond a reasonable doubt. In some cases, defendants are charged with crimes not because of something that they did, but because the “victim” attempts to use the criminal justice system to make the defendant suffer. When a person is wrongfully charged with a crime, they may seek to recover against the person who instituted the criminal proceedings.
In a claim for malicious prosecution, the plaintiff must prove the following:
- That the defendant instituted or continued criminal proceedings against the plaintiff.
- That the criminal proceedings terminated in favor of the plaintiff, i.e., the accused in the criminal case
- That the defendant did not have probable cause for the proceeding; and
- That the defendant instituted the criminal proceedings with malice, or a purpose other than bringing the plaintiff to justice.
Criminal proceedings are filed by the state, not by individuals. It is sufficient for this tort if the defendant directs or requests a prosecution based on information that they know to be false, or if the person withholds information which a reasonable person would realize might affect the decision to prosecute. Liability also arises where the person gives inaccurate information to a police or prosecutor. In addition, a person can be liable for malicious prosecution if that person learns of information that destroys the probable cause for the prosecution after proceedings have been commenced, but fails to come forward and give that information to the prosecutor.
Termination of proceedings in favor of the accused may be the result of the dismissal of the charges at a preliminary hearing, the entry of a nolle prosequi by the state’s attorney or a not guilty verdict from a judge or jury.
The absence of probable cause means that the defendant in a malicious prosecution case acted without any reasonable grounds to believe that the plaintiff was guilty. A plaintiff can prove malice by showing that the defendant filed charges with a purpose other than bringing the accused to justice. Just because the state enters a nolle prosequi, however, does not mean that probable cause is lacking. The question of whether probable cause existed for the filing of the criminal charges is one that must be evaluated on a case-by-case basis.
Malice is shown when the defendant had a wrongful or improper motive for instituting criminal proceedings against the plaintiff. It may be, but is not necessarily based on spite, hatred, personal enmity or a desire for revenge. In a claim for malicious prosecution, the plaintiff must prove something more than mere negligence on the part of the defendant. A lack of probable cause by itself may be sufficient to show malice.
In a malicious prosecution case, the plaintiff can recover both compensatory and punitive damages. If you have been the victim of malicious prosecution, we’d be happy to discuss the specifics of your case with you.
Malicious Use of Process
While similar to Abuse of Process and Malicious Prosecution, the tort of Malicious Use of Process is a remedy when a person wrongfully uses civil process without a proper basis.
In a complaint for malicious use of process, the plaintiff must plead and prove the following elements:
- A prior civil proceeding was instituted by the defendant.
- The proceeding was instituted without probable cause.
- The proceeding was instituted with malice.
- The proceeding was terminated in favor of the plaintiff; and
- Damages were inflicted upon the plaintiff by arrest or imprisonment, seizure of property, or other special injury, which would not necessarily result in all suits prosecuted to recover for like causes of action.
The plaintiff must prove that the prior legal proceedings were terminated in his favor. Also, the plaintiff must show that the defendant did not have any reasonable grounds on which to proceed with the civil action
The plaintiff must prove that the defendant acted with malice; that is with an improper motive. Proof does not require evidence of spite, hatred, personal enmity, or the desire for revenge .
The plaintiff must show prove damages. Damages occur when the plaintiff is arrested, his property is seized, or some other type of injury is incurred.
In a lawsuit for Malicious Use of Process, a plaintiff can recover both compensatory and punitive damages.
Tortious Interference with Contractual Relations
A claim for tortious interference with economic relations is comprised of two different types of claims. In one type of claim, the plaintiff brings an action for the defendant’s intentional and improper inducement of a breach of an existing contract. In a different type of claim, the plaintiff sues for the intentional and improper interference with economic relationship in absence of a breach of contract or for interference with business expectations.
The elements that a plaintiff must plead and prove under the first type of claim are as follows:
- A contract existed
- That the defendant knew about the contract
- That the defendant intentionally and improperly conducted himself in a way that caused a third party to breach that contract or made it impossible for the third party to perform under the contract
- That the third party breached the contract or was unable to perform; and
- That as a result, the plaintiff suffered damages.
Only a person who is not a party to the agreement can be liable for interference with a contract. Where the offending party is a party to the contract, the plaintiff must look to some other means to recover. The Court of Appeals has not allowed a party to transfer a breach of contract claim into an intentional tort.
The conduct giving rise to the tort need not be extreme, but it does need to be purposeful. If the conduct persuades another to breach or fail to perform, there must be liability. The courts will consider a number of factors to determine whether the defendant’s conduct is intentionally interfering with a contract. These factors include the nature of the actor’s conduct, the actor’s motive, the interests of the other with which the actor’s conduct interferes, the inters sought to be advanced by the actor, the social interests in protecting the freedom of action of the actor and the contractual interests of the other, the proximity or remoteness of the actor’s conduct to the interference; and the relation between the parties.
The interference with contract may be in the form of violence or intimidation, deflation, crimes, threats of groundless civil lawsuits or criminal prosecutions in bad faith. It is important to distinguish between the actor’s motives. A person can act knowingly and willfully, but if the person has a legitimate motive other than interfering with another’s contract, that person’s actions may not give rise to a tort claim.
Tortious interference with contract cannot be used to chill legitimate business competition. For example a competitor who pursues an employee of another’s business who is employed at-will, does not improperly interfere with the existing employment contract, unless the competitor uses improper means.
In this tort, the court can award compensatory damages. Damages are measured according to what would reasonably flow from the tortious act. These may include the loss of benefits under the contract, plus consequential damages, emotional distress and damages for harm to one’s reputation.
A plaintiff may also recover punitive damages for tortious interference where the plaintiff can show that the defendant’s conduct was motivated by actual malice, i.e., evil motive, intent to injure, ill will or fraud.
Sometimes a claim for Tortious interference with Contract will overlap with other claims, such as defamation or tortious interference with economic relations.
Tortious Interference with Prospective Advantage
The tort of Tortious Interference with Prospective Advantage exists to address situations where a person improperly interferes with another’s business relationship. Liability for Interference with Prospective Advantage can arise in various ways. Two of the most common methods are where the defendant intentionally and improperly induces the breach of an existing contract and where the defendant intentionally and improperly interferes with an existing economic relationship or in a competitor’s business expectations.
Tortious interference with business relationship is distinguished from a breach of contract claim because it requires a relationship among three parties: the two parties to a contract and the party that interferes. A tortious interference with business relationship claim cannot succeed where both plaintiff and defendant are parties to the contract. In that type of situation, the plaintiff may recover for breach of contract or fraud.
Nevertheless, a plaintiff may recover on a claim for tortious interference with prospective advantage against a defendant with whom the plaintiff has contracted if the plaintiff can show that the defendant breached the contract in an effort to interference with the plaintiff’s business relationship with one or more third parties.
In order to prove a tortious interference with business relationship, the plaintiff must show four things:
- That the defendant acted intentionally and willfully
- That the defendant’s actions were calculated to cause damage to the plaintiffs in their lawful business
- That the defendants actions were done with the unlawful purpose to cause damage and loss, without right or justifiable cause on the part of the defendants and
- That the plaintiff suffered actual damages or losses
It is not enough to prove that the defendant did something that caused the plaintiff to suffer a business loss. The plaintiff must also show that the defendants conducted themselves in some improper manner. Examples of an “improper manner” would include things such as violence or intimidation, defamation, injurious falsehood, fraud, violation of criminal law and making groundless threats of lawsuits or criminal prosecutions.
A tortious interference claim can arises when a person engages in conduct that causes another to lose a potential contract by causing a third party to cease performing, even when the cessation of performance does not constitute a breach. A party who intentionally interferes with another’s prospective advantage is liable for damages. To prevail on a claim for interference with prospective advantage, a plaintiff must prove:
- That the defendant engaged in intentional and willful acts
- That the acts were calculated to cause damage to the Plaintiff in a loss of business; and
- That the acts were committed with the unlawful or improper purpose to cause such damage without justification and actual damages resulted.
A person who improperly causes another to discontinue business relationship with the plaintiff may be liable for tortious interference with prospective advantage. This occurs when the defendant causes the plaintiff to lose a contract or causes a third party to stop performing under an existing contract when the refusal to perform does not constitute a breach, such as refusal to exercise an option.
The courts will examine a variety of factors to determine whether the defendant has intentionally interfered with a contract or prospective contract of another. Some of these factors are:
- The nature of the actor’s conduct
- The actor’s motive
- The interest of the other with which the actor’s conduct interferes;
- The interests sought to be advanced by the actor;
- The social interests in protecting the freedom of action of the actor and the contractual interests of the other
- The proximity or remoteness of the actor’s conduct to the interference; and
- The relationship between the parties
To prove a claim for intentional interference, it is necessary that the plaintiff establish that defendant not only acted intentionally and willfully to interfere with the defendant’s contract or prospective advantage, but also that the defendant’s conduct was specifically directed at the plaintiff’s business relationship with others.
The Law Offices of Baldwin, Briscoe & Steinmetz can assist you in any disputes over the rightful boundaries between properties. Every resource that can help determine the actual boundaries of a property will be examined, and we will look for any historical records or physical indicators that exist.
Cases of defamation arise when someone falsely accuses another of an act or wrongdoing, thereby damaging their reputation. Victims can often seek financial compensation from those who slander them, with cases being decided in civil courts.
The Law Offices of Baldwin and Briscoe have always believed in protecting a person’s character. We have fought and continue to fight for our clients’ best interests.
A defamatory statement is a false statement about another person that exposes that person to public scorn, hatred, contempt, or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person. The statement must be substantially false. A statement that is generally true, but contains a minor error, generally will not be sufficient to support a claim for defamation.
Defamation may result from a statement communicated to a third person either orally or in writing.
A person can sue for defamation within one year after the casual action occurs.
Public Officials and Public Figures
Public officials and public figures, even those who became public figures due to no fault of their own, such as volunteers in the community, can establish a claim for defamation only by proving malice. Malice requires that the speaker have actual knowledge of the false statements, or that the speaker have obvious reasons for distrusting the accuracy of the information conveyed. Malice may also be inferred from surrounding circumstances.
Defamation of a Private Individual
Defamation of private individual requires the plaintiff to prove: the defendant made a defamatory statement to a third party; that the statement made was false; that the person making the statement was legally at fault for making the statement; and that the plaintiff suffered harm. There is no malice requirement for proving defamation of a private individual. Where the individual defamed is a private individual, the plaintiff must establish that the speaker should have known the statement was false.
Defamation Per Se and Per Quod
Defamation claims fall into two general categories: defamation per se and defamation per quod. Which category the case falls into affects the plaintiff’s burden of proof at trial. In a case of defamation per se, establishing that the speaker made the defamatory statement is sufficient for the plaintiff to establish its burden. However, cases involving defamation per quod require that the plaintiff introduce additional evidence in order to establish that the defamation occurred. The nature of the statement itself will determine whether the case is per se or per quod. The important distinction here is whether or not additional information is necessary to give context to the speaker’s statement so that the trier of fact can understand the nature of the statement and the potential harm incurred.
A person who is the subject of a defamatory statement that was not made with actual malice must show actual damages in the form of financial loss, injury to reputation, mental anguish, or some other tangible injury, in order to obtain relief.
When a person is the subject of a defamatory statement that was made with actual malice there is a presumption that the statement causes that person harm, and relief may be awarded even in the absence of any evidence of actual damages.
A person who is the subject of a defamatory statement may be allowed punitive damages if the defendant published the defamatory statement with actual knowledge that it was false.
A person who has been the subject of a defamatory statement may also recover damages from the defendant for injury resulting from his or her republication of the statement, or for republication by anyone else that was foreseeable to the defendant.
The judge or jury may consider evidence that the defendant tried to mitigate damages arising out of a defamatory communication. So a public retraction or correction is relevant. Additionally, if the plaintiff provoked the defendant in some manner into making the defamatory statement, this too can be considered with respect to the issue of damages.
Damages are presumed from a statement which is reasonably understood to reflect not only on one’s rights to or quality of land, property, or intangible thing but also reflects unfavorably on that person’s business reputation, business integrity or on that person’s profession or business.
There are three types of defenses when it comes to defamation: absolute privilege, qualified privilege, and consent. Under absolute privilege, the plaintiff is not allowed to recover damages if the defamation occurs in judicial proceedings, legislative proceedings, executive publications, publications consented to, publications between spouses, and publications required by law. Qualified privileges are privileges for reporters. Qualified privileges occur between reporters reporting about proceedings and employer and employee relationships. However, the reports must be fair. Consent requires the person to give actual consent to the defamation. Consent is different from opinion, because consent is the persons actual words agreeing to the defamation and is a complete defense to defamation.
With the explosion of social media over the past few years, we will likely see an increase in the number of defamation cases being litigated in Maryland courts. It is possible that there may be changes or further development of these principals with new cases coming before the Maryland Appellate Courts. It is always important to keep in mind, however, to separate statements of fact from those transmitting opinions. In order give rise to a claim for defamation, the statement must convey facts, not solely opinions. Fair and honest opinions which are based upon true facts and which have some relation to or connection with those facts are also absolutely privileged. Opinions based on false facts are protected if the publisher was not guilty of actual malice with regard to these supportive facts
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin & Briscoe, P.C. can assist you if you are involved in a defamation claim. Contact our office to schedule a no-obligation consultation to review your rights. A consultation fee may apply.
A variety of easements can exist or be placed on a parcel of land that determines how it may be used, from easements that grant the right-of-way to vehicles or power companies to historical-value easements placed by the State of Maryland. Our attorneys handle cases where parties seek to obtain or prevent an easement pertaining to their property.
The attorneys at Baldwin & Briscoe, P.C. have handled many easement cases over the years. Easements are important because they affect how an owner may access or use their property. They also create a burden on the property over which they cross. It is easy to see how one person’s right to use another’s property may be the source of contention between the parties.
An easement is a non-possessory right in the property of another. Often the term easement is synonymous with the term right-of-way. An easement allows a person to legally cross over or otherwise use or burden the property of another person without asking for permission. An easement however, does not allow the easement owner to occupy the property or exclude others from the property. Those rights are reserved to the owner of the property, sometimes referred to the as the fee owner, the fee-simple owner or the servient owner.
The servient parcel is the property across which an easement crosses. The dominant parcel is the property which the easement benefits. An easement which benefits a particular parcel is said to be appurtenant to that land. An easement which is specific to a person, and not tiled to a dominant parcel is called an easement in gross. An easement appurtenant will pass with the title of the dominant parcel. This allows the buyer to use the easement in the same manner as the seller did. An easement in gross is generally unaffected by who holds title to the property. Utility easements are a typical example of an easement in appurtenant.
There are numerous types of easement that are recognized under Maryland law. These include right of way easements, utility easements, drainage easements, conservation easements, solar easements, sewer easements and driveway easements.
Easements can be created in various ways. An express easement is one that is created by grant, which is a deed, from one person allowing another an easement in their property. Easements can also be created by reservation. This generally occurs when a property owner subdivides a parcel into two or more smaller parcels by selling one, but retaining a right to cross it to access the others.
In addition to an express grant or reservation, an easement can be created through litigation. Easements created through litigation generally fall into three categories: necessity, prescription and implication.
- Easement by Necessity. An easement by necessity arises when a parcel of property is subdivided in a way that one of the newly created portions does not have access to a public road or right-of-way. The court will grant an easement by necessity if it is reasonably necessary for the fair use and enjoyment of the property that does not have access to the public road.
- Easement by Prescription. An easement by prescription arises when an individual makes adverse, continuous and hostile use of a right-of-way over the property of another for a period of twenty years. The element of hostility does not necessarily imply enmity or ill will; it simply means that the person using the right-of-way has not obtained permission from the owner.
- Easement by Implication. An easement by implication arises when a property is subdivided. An Easement by Necessity (described above) is actually a type of Easement by Implication. An Easement by Implication is created when surrounding circumstances indicate that the grantor must have intended that he would be allowed to continue to cross over the property conveyed even after of the property.
In addition to litigation concerning whether an easement exists, sometimes parties litigate issues concerning the scope and rules surrounding an existing easement. It is not always clear what a party who has an easement is permitted to do within the easement. The party using the easement may create a burden on the underlying property. Sometimes issues concerning whether the party using the easement has created an undue burden. For example, if an easement is granted for access to a parcel of property used as a residence, but then the owner wants to develop the property for a commercial purpose, the new use might create an undue burden.
The courts can provide remedies pertaining to the use of an easement including injunctions and declaratory relief in which the court sets the rules for the use of the easement. The court can also award monetary damages where the use of an easement exceeds the scope of the easement or where the owner of the servient property interferes with the use of the easement.
Easements can be affirmative or negative. Most easements are affirmative easements, meaning that they permit someone to do something on another’s property. A negative easement is a restriction on one’s property. A scenic easement which prevents a party from creating a structure that blocks another’s view is a type of negative easement. Negative easements can also protect a property owner right to sunlight, thus prohibiting a neighboring owner from constructing a structure which blocks the light.
If you have questions concerning an existing easement or find yourself in a dispute with a neighboring property owner, the attorneys at Baldwin & Briscoe will be happy to meet with you and discuss your options and develop a strategy to meet your objectives.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin & Briscoe, P.C. can assist you with many types of property litigation, including easement issues. We’d be happy to sit down with you and review your situation and provide appropriate advice. Call today for a no-obligation consultation. A consultation fee may apply.
HOA disputes are often complicated to resolve and taxing on the parties involved; don’t do it alone. The Law Offices of Baldwin, Briscoe & Steinmetz have represented homeowners’ associations and homeowners in past disputes.
Property Disputes & Real Estate Litigation
For any other property disputes or real estate issues, The Law Offices of Baldwin, Briscoe & Steinmetz will represent you following an initial consultation.
Real estate is a part of our lives. Most people will at some point buy a house or land. There are a lot of issues that can arises during these transactions, one of them is negotiations falling apart. If a buyer offers a new amount, does this open a new contract negotiation and make a previous contract null and void? If a settlement does not take place by the time stated in the contract of sale, does this open a new contract and make the previous contract null and void?
Maryland View On Contracts
Maryland courts follow the objective theory of contracts, which is:
“A court construing an agreement under [the objective theory] must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.”
In other words, a court will look at the exact wording of the contract and if the wording is clear and unambiguous, the court will assume that the parties that are under the contract intended to be bound by it. If the language in the contract is not clear and unambiguous, then a court will look to how a reasonable person would act if they were in the same position as the parties in the contract.
Maryland precedent establishes that a contract can only be re-negotiated when the contract has a re-negotiations clause written into the contract. See Cushman v. Anne Arundel County, 246 Md. 525, 532, 228 A.2d 825 (1967), Wolfe v. Wolfe, 12 Md.App. 581, 584, 280 A.2d 1(1971), Balt. City. v. AECOM Srvcs. Inc., 200 Md. App. 380, 400, 28 A.3d 11 (2011) Fraternal Order of Police, Montgomery City., Lodge 35 v. Montgomery City., 437 Md. 618, 630, 89 A.3d 1093 (2014). These cases establish, along with Maryland’s view of reading the contract solely based off of its plain language, that a contract can only be considered to be null and void based on the terms set in the contract.
Therefore, when entering into a contract, it is crucial to read over the entire document carefully. Many contracts dealing with a sale of land will contain a date by which the settlement must be completed. Many contracts also typically contain a time essence provision that grants the party that does not default (in other words, the party that doesn’t fail to complete an action that they were supposed to by a certain date) the power to declare the contract null and void. However, although these types of clauses are common, each contract is different. If you have a question about a contract, please contact Baldwin & Briscoe, P.C. for a consolation.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin & Briscoe, P.C. can assist you if you are involved in a contract dispute. Contact our office to schedule a no-obligation consultation to review your rights. A consultation fee may apply.
Through Maryland’s appeals process, you can challenge the findings of any civil case and ask to have it re-heard by a higher court. The higher court has the authority to change or modify any part of the ruling made by the lower court. Therefore, it is essential to have competent, experienced representation during the appeals process.
Breach of Contract
Breach of Contract
The attorneys at Baldwin, Briscoe & Steinmetz, P.C. have years of experience litigating breach of contract matters. A contract is simply a promise or set of promises, which if breached, the law will provide a remedy. Under Maryland law, the court will generally try to give effect to the parties’ intentions.
A breach of contract occurs when someone fails to do what they’ve agreed to do. Some common examples of breaches include failing to pay a debt when it becomes due, or failing to perform on a promise. This might, for example, occur where someone agrees to sell a piece of real estate, but then refuses to go to settlement.
In order to obtain relief from the court, the plaintiff, in a breach of contract case, must allege and prove two things:
1) The existence of a contractual obligation owed by the defendant to the plaintiff; and
2) A material breach of that obligation by the defendant.
A complaint is a paper that is filled out by the plaintiff or their attorney, and filed with the court, that sets out the facts giving rise to the dispute between the plaintiff and the defendant. The complaint must also contain a request for the relief requested, that is what the plaintiff is asking the court to do. The plaintiff can ask for various forms of relief, including money damages, an injunction, specific performance or declaratory relief.
Maryland law recognizes the existence of both oral and written contracts and a plaintiff can generally sue to enforce either. In the case of oral contracts, the plaintiff must sometimes prove the existence of the contractual obligation through circumstantial evidence. Another important fact to keep in mind is that a written contract can be orally modified.
In a breach of contract claim, the plaintiff bears the burden of proof. This means that the plaintiff both establish a prima facie case and demonstrate a preponderance of the evidence in its favor. In order to establish a prima facie case, the plaintiff must provide some evidence as to each element. That means that the plaintiff must provide testimony, documents, or other evidence that establishes both the existence of a contractual obligation and that the defendant breached that obligation. Assuming that the plaintiff is able to meet its initial burden, the defendant will have the opportunity to present evidence in the case that refutes that of the plaintiff. At the end of the case, the judge or jury must decide whether it is more likely than not that both there was a contractual obligation owed by the defendant to the plaintiff and that the defendant did not meet that obligation, and if so, what remedy is appropriate.
Breach of contract cases sometimes arise because the parties have a disagreement over what the contract requires them to do. This may be based on either some ambiguity in the contract, or a dispute over what a term means. The law requires courts to give effect to what the parties stated in the contract, if possible, regardless of their subjective intentions. Courts generally interpret contracts by using a reasonable person standard. That is they seek to determine what a reasonable person in the position of the contracting parties would think that the term means. When a court is able to determine the meaning of the contract based on the document itself, it will not look to outside sources for assistance. Where a contract is truly ambiguous, however, the court will consider evidence outside of the contract itself to help reach a determination as to what the parties intended. A contract is ambiguous when it is susceptible to more than one interpretation by a reasonable person.
In order to form a valid contract, there must be an offer, acceptance and consideration. An offer is simply a communication from one party to another of a desire to enter into an agreement. The offer must be sufficiently detailed and clear that it can be accepted by the other party. The offer must contain the necessary terms in order to be binding if accepted. For instance, “I’ll sell you my car if you have the money” is not an offer. “I’ll sell you my car for $5,000 if you can pay me in cash by Friday, and I’ll deliver it at that time in its present condition” is an offer.
An offer can require a written or formal acceptance, but otherwise the offer can be accepted informally or by action. If you make an offer to purchase a home, for instance, you would fill out a written contract, sign it and present it to the seller or their real estate agent. In order to accept the offer, the seller must sign the contract and return the signed contract to you, or your agent. This is a formal acceptance. On the other hand, a store or vendor may have something for sale. You go to the register and hand over your money and the contract is completed, no documentation needed. The real estate contract example is sometimes referred to as a bilateral contract, whereas a contract that is completed by performance is sometimes referred to as a unilateral contract or implied contract.
Some contracts, by law, must be in writing to be enforced. For example, a contract to sell real property is not enforceable unless it is in writing. This is referred to as the Maryland statute of frauds. In these cases, however, “a writing” does not necessarily mean a formally prepared contract as a business might ordinarily create. An exchange of letters or emails between the parties, if it shows the existence of the contract, will ordinarily be sufficient to constitute a writing. This may be true even if the writing is inaccurate or incomplete. Often litigation arises because the parties have a disagreement over whether a contract was formed, or what its terms are, when there has been an informal exchange of correspondence, including email.
Written contracts may contain implied terms in addition to the express terms that are set forth on the paper. Under Maryland law, every contract, with the exception of at-will employment contracts, contains an implied term of good faith and fair dealing. Many times, this will come up in partnership agreements or other contracts where some fiduciary duty is present. Sometimes there are other implied terms based on the circumstances under which the contract was formed.
One area which has resulted in much litigation is that of letters of intent. Letters of intent generally come about during the course of negotiation but are generally not a final agreement between the parties. Depending on the language within the letter of intent, however, the party making the offer, i.e., sending the letter, may express an intention to be bound by its terms. Whether or not the letter of intent can be accepted as an offer is a question that is decided by the court on a case-by-case basis.
As stated above a valid contract requires consideration. Consideration is an exchange of something of value between the parties. It may be money, property, or simply a promise. If I promise to give you something, but there is no agreement that I’ll get anything in exchange, there is a lack of consideration and therefore no binding contract. Even if I promise in writing to give you something, without consideration, that promise is unenforceable. On the other hand, if you promise to give me something in return, or to do something, or not do something, then we have a binding contract. Uncle Bob’s promise to his nephew Tommy to give him $100 next week is not enforceable. Uncle Bob’s promise to give Tommy $100 if he gets all A’s in school this quarter is enforceable. (Tommy’s getting the A’s is the consideration that makes the difference.)
Some contracts are made for the benefit of a person not a party to the contract. These contracts can be enforced by the party that is the intended beneficiary. These are enforceable by the intended beneficiary, even though they are not a party. The intent to create a third-party beneficiary must be evident from the contract itself. A life insurance policy is typical example of a third-party beneficiary contract. The person receiving the proceeds of the insurance payout is someone other than the party who made the contract. Even though that person was not a party to the contract, that person has the legal right to enforce the contract, including by filing a lawsuit if necessary.
In a dispute that involves a bilateral contract, the plaintiff must prove that it performed its duties or obligations under the contract. Plaintiff must also prove that the defendant’s breach of contract was material. This means that it was important or significant. If a plaintiff agrees to purchase a product and the contract requires delivery in thirty days, delivery by the defendant on the thirty-first day does not necessarily constitute a material breach of contract. It might not be important that the product was delivered exactly on the date agreed. If, however, the parties state in the contract that delivery on the agreed date is a material part of the agreement, then failure to do so would be a material breach. Parties often create materiality by using a “time is of the essence” clause in their contract. This means that when a date is specified for someone to take action or perform, they must do so by that date, not near or shortly after the date stated.
As mentioned previously, the remedies available to a plaintiff in a breach of contract case include money damages, specific performance, injunctive relief and declaratory relief. Here’s an overview of how these work:
Money Damages. This is the most common remedy sought in breach-of-contract actions. Money damages may be awarded for losses that were proximately caused by the defendant’s breach, that were reasonably foreseeable, and that are proven with reasonable certainty. Reasonable foreseeable means that the damages are those that would arise naturally out of the breach of contract. Moreover, a plaintiff can recover damages that are reasonably supposed to have been in the mind of both parties at the time that the contract was formed.
The question of foreseeability often comes up concerning the issue of a claim for lost profits. In these cases, the plaintiff must prove that the defendant could have reasonably foreseen that the lost profits would probably result from the breach and the lost profits can be proved with reasonable certainty. So, for example, if the breach of contract is for failure to deliver a truckload of hot dogs on time, a hot dog stand with a proven sales record will be more likely to recover damages for lost profits than would a brand-new business. The new business, however, may still be able to recover the cost of obtaining alternative product including any price premium that had to be paid, and the added transportation and labor costs involved.
One form of money damages are liquidated damages. Liquidated damages are damages that are agreed to in the contract prior to any breach. The parties can, by agreement, set the amount of damages that will result in the event of a breach. Courts will enforce these clauses if they meet three conditions: (1) a liquidated damages clause must be clear and unambiguous on its terms; (2) the damages provided for must reasonably compensate the damaged party for the breach; and (3) the clause is written in a way that it is binding and not subject to alteration after the breach has occurred.
Usually, a non-breaching party has a duty to mitigate, or take reasonable steps to avoid unnecessary damages resulting from the breach. Where a contract has a liquidated damages clause, however, there is no duty to mitigate. Unlike some other areas of law, Maryland does not permit punitive damages in a breach of contract case. Nevertheless, if there is a tort remedy that gives the plaintiff the right to recover punitive damages, such damages may be recovered despite the fact that there is a valid claim for breach of contract as well.
Specific Performance. Specific performance is a remedy where the court orders a part to a contract to do what they contracted to do. An example of this is where a party has contracted to sell a piece of property to another party, but then refuse to go to settlement. In these cases, the court can issue an order requiring the breaching party to complete what it agreed to do in the contract. Alternatively, the court may appoint a trustee to convey the property that was contracted for on behalf of the breaching party.
Injunctive Relief. Sometimes a plaintiff in a breach of contract case will seek injunctive relief. An injunction is an order from the court requiring the defendant to do something, or to refrain from taking some behavior. A specific performance case, discussed above, is one form of injunctive relief. The court may pass other forms of injunctions, as well, such as prohibiting a party from disposing of certain property until certain conditions have been met.
Declaratory Relief. In some cases, the plaintiff is seeking declaratory relief. Declaratory relief is different from an injunction or money damages in that it seeks an interpretation of the contract. Sometimes a declaratory relief can be used when a party is uncertain of its rights or obligations under a contract. A person who is entitled to a sales commission, for example, may file a complaint for declaratory relief prior to the completion of the sale but after some action taken by the principal which gives them cause to believe they will not be paid. In that case, the court can issue an order stating that if the sale occurs, the person is or is not entitled to a commission. Declaratory relief can be used defensively as well. If a person wishes to terminate the relationship, but fears that some cost may be incurred in the future, they can seek declaratory relief from the court setting out the future obligations.
The attorneys at Baldwin, Briscoe & Steinmetz, P.C. have years of experience in litigating breach of contract cases. A consultation with one of our experienced breach of contract attorneys can provide you appropriate advice as to your rights and obligations concerning any particular contract. Contracts are often complex instruments and an attorney can only give you advice after learning about the particular facts of your situation.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin, Briscoe & Steinmetz, P.C. can assist you if you are involved in a contract dispute. We’d be happy to sit down with you and review your situation and provide appropriate advice. Call today for your no-obligation consultation.
A bailment is a simple transaction in which one party, the bailor, transfers the possession of a good or goods to another party, the bailee. You enter into a bailment arrangement whenever a valet parks your car or you take your clothes to the dry-cleaner or tailor. In these situations, you turn over possession of something that you own to another person or company without surrendering your ownership interest in the property you’ve turned over.
In the event that the bailee fails to return the goods at the end of the bailment, the bailor can sue for breach of the bailment agreement. When a bailment agreement exists, the bailee assumes the duty of exercising reasonable care and protecting the bailed property. The bailee has a duty to use reasonable care to protect the property. That means they must use the degree of care that a reasonable person would exercise towards similar property.
If the bailee has a justified excuse for failing to return the property at the end of the bailment, the bailor must establish that bailee failed to use reasonable care to protect the property. The bailee for instance may not be liable if someone broke into their home or business and stole the property. On the other hand, if the property was mislaid in a public place by the bailee, liability would likely attach.
If a bailment is gratuitous, meaning that the bailee is not paid a fee, the bailee is liable only for its wrongful conduct. This might occur, for instance if you lose a piece of jewlery in a store, an employee or customer turns it in and the store holds onto it until it is claimed. In this situation, the store owner or bailee must use ordinary care to return it to the owner.
If the bailment is for the mutual benefit of the parties, then the plaintiff can establish a prima facie case by showing merely that the bailed property was not returned. An example of a mutual benefit bailment would be a car rental. The rental company (bailor) benefits in that they receive a fee. The customer (bailee) benefits in that they have use and possession of the rental car.
If the bailee has a justified excuse for not returning the property (it was stolen!), the bailor must show that the bailee failed to exercise reasonable care in protecting the property.
A bailment is created in a parking garage where the vehicle owner surrenders their keys at the garage. No bailment is created where the owner parks his own car and retains the keys. In the absence of a bailment agreement, other forms of liability may be present.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin, Briscoe & Steinmetz, P.C. can assist you if you are involved in a bailment dispute or any civil litigation matter. We’d be happy to sit down with you and review your situation and provide appropriate advice. Call today for your no-obligation consultation.
Anticipatory Breach of Contract
Under Maryland law, as is common around the country, if a person breaches a contract, the other party to the contract may file a lawsuit and if successful, the court will award the plaintiff money damages, and in some cases, specific performance or other injunctive relief. A breach of contract occurs when one party to the contract, without legal justification, fails to perform any promise that forms part or all of the contract. A plaintiff, in a breach of contract case, must prove that he or she performed his part of the contract.
In an anticipatory breach of contract case, the breach occurs before the time that performance is required. An anticipatory breach occurs when one party definitely and specifically refuses to perform the contract in a manner that is positive and unconditional. An anticipatory breach is more than a delay and must amount to a repudiation or rejection of the contract. An expression of doubt over one’s ability to perform is not sufficient to create an anticipatory breach.
A party who anticipatorily breaches or repudiates a contract may retract the repudiation and perform so long as they notify the other party to the contract before the other party materially changes their position based on the anticipatory breach or notifies the repudiating party that they consider the repudiation to be final.
If a party repudiates a contract, the non-breaching party may choose how to proceed. If is advantageous of them to do so, they may treat the contract as abandoned and sue the breaching party for anticipatory breach of contract. On the other hand, they may wait and bring an action for breach of contract after the time for performance has passed.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin, Briscoe & Steinmetz, P.C. can assist you if you have questions concerning a contract, including the breach or anticipatory breach of a contract. We’d be happy to sit down with you and review your situation and provide appropriate advice.
When a contract is rescinded, it is voided and the parties are returned to the positions that they were in prior to entering the contract.
In order to obtain a rescission of contract by the court, the plaintiff in the case must plead and prove the following elements:
- That the plaintiff entered into a contract because of fraud, negligent misrepresentation, undue influence or duress, or that there was a material breach of the contract by the defendant, or that there was a mutual or unilateral mistake in contracting.
- That the plaintiff returned the consideration or was unconditionally willing to return the consideration to the defendant, along with any benefits that the plaintiff received based on the contract.
- That the plaintiff acted promptly in rescinding the contract and didn’t treat the contract as an ongoing obligation; and
- That the plaintiff notified the defendant of the intention to rescind.
In some cases, there may be no consideration for the plaintiff to return, or the plaintiff may have some other claim that offsets the consideration. In these cases, the court may permit the plaintiff to obtain a rescission of the contract without returning the consideration.
The importance of acting promptly to rescind the contract cannot be overstated. A plaintiff’s duty to act arises when the plaintiff first becomes aware of the facts that give rise to the right to rescind. The plaintiff must give notice of intention to rescind within a reasonable period of time. The specific amount of time that is reasonable will vary depending on the underlying facts. The court will decide what’s reasonable on a case-by-case basis.
If a plaintiff continues to treat the contract as ongoing, such as by continuing to receive and accept benefits under the contract, the court is likely to find that the right to rescind has been waived. A plaintiff can also affirmatively waive their right to rescind by indicating to the defendant that they will continue to be bound by the contract. A party who has chosen not to rescind may still seek damages through other remedies, such as for breach of contract or fraud.
The experienced attorneys at Baldwin & Briscoe can assist you if you are a party to a contract which should be rescinded. If you have questions about the rescission of a contract, you may wish to contact Baldwin & Briscoe.
The information contained on this page is provided as general information and does not constitute legal advice. We’d be happy to sit down with you and review your situation and provide appropriate advice. Call today for your no-obligation consultation.
Constructive and Resulting Trust Litigation
The Law Offices of Baldwin, Briscoe & Steinmetz, P.C. represents clients in matters involving the breach of a confidential relationship, including where clients seek to establish a constructive trust or a resulting trust through litigation.
Constructive Trust Litigation
A constructive trust is an equitable remedy that a court can impose to correct an inequitable transfer of property. A constructive trust may be an option when an agent misuses a durable power of attorney, such as by executing a deed that was not consistent with the principal’s estate plan. A constructive trust, created by the court, treats the recipient of the property as if he or she were an express trustee holding the property for the rightful recipient from the date of the first unlawful holding.
There are generally two type of scenarios under which Maryland courts have imposed constructive trusts, first when the property has been acquired by fraud, misrepresentation, or another improper method and secondly, when the property has been acquired in breach of a confidential relationship. In either scenario, the purpose of imposing a constructive trust is to prevent the person who has acquired title from being unjustly enriched.
When property has been improperly acquired by fraud, misrepresentation, or other method, in order to obtain a constructive trust, the plaintiff must show three things:
- That the defendant has obtained property in which the plaintiff has a valid equitable claim
- That the defendant acted wrongly in acquiring the property. Such acts could include fraud or misrepresentation
- That under the circumstances it would be inequitable for the defendant to retain the beneficial interest in the property.
When the plaintiff’s claim is based on the breach of a confidential relationship, the plaintiff must prove the following:
- That the defendant acquired some property in which the plaintiff has a valid equitable claim
- That there is a confidential relationship which has been breached by the dominant party.
A confidential relationship exists where one party is under the dominion of another, or where under the circumstances, such party is justified in assuming the other will not act in a manner that is inconsistent with his or her welfare. If the plaintiff can establish the existence of a confidential relationship, there arises a presumption that confidence was placed in the dominant party and that the transaction complained of resulted from fraud or undue influence. This presumption then shifts the burden of proof to the defendant to show the transaction was fair and reasonable. The defendant must present clear, satisfactory, and convincing evidence to overcome the presumption.
Confidential relationships may exist in a variety of circumstances, such as between a parent and child, between spouses, between attorneys and their clients, or between a principal and their agent under a durable power of attorney. Generally, a confidential relationship exists where one party acts as a fiduciary for another party.
A constructive trust may also be imposed where the plaintiff has a higher equitable call on property than the defendant and it would be inequitable for the defendant to retain the property. Under this method of obtaining a constructive trust, it is not necessary that the plaintiff prove any particular wrongdoing on the part of the defendant. An example of this would be where a husband changes the beneficiary of this life insurance policy to his second wife in violation of a separation agreement with his first wife requiring him to maintain the first wife as the policy beneficiary. In this case, the first wife would not have to prove wrongdoing in order to obtain the benefit of a constructive trust.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin & Briscoe, P.C. can assist you with many types of property litigation, including constructive trusts and breaches of fiduciary duties. We’d be happy to sit down with you and review your situation and provide appropriate advice. Call today for a no-obligation consultation. A consultation fee may apply.
Mediation and Arbitration
A court is not the only place to settle a dispute. Mediation and arbitration are alternative dispute resolution methods where parties meet informally outside the court. There they try to come to a mutually agreeable resolution without incurring the high costs of a court action. The Law Offices of Baldwin, Briscoe & Steinmetz gladly offer these services to anyone involved in a civil case who feels their legal issues could best be resolved this way.
Further Civil Litigation Practice Areas
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