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Appellate Decisions

Brault Graham has argued more than 200 appellate cases in the Maryland and District of Columbia appellate courts, the United States Court of Appeals for the District of Columbia, and the United States Court of Appeals for the Fourth Circuit. In an article in the Daily Record, it was reported that Albert D. Brault had argued more appellate cases in the Maryland Court of Appeals than any attorney outside of the Attorney General’s Office. The appellate cases in which Brault Graham has argued have produced some of the most significant developments in tort, corporate and insurance law. A sampling of these cases is set forth below.

General Tort Law

B & K Rentals and Sales Co., Inc. v. Universal Leaf Tobacco Co., 324 Md. 147, 596 A.2d 640 (1991): warehouse fire – admissibility of statement by agent as part of res gestae.

Bennett v. Baskin & Sears, 77 Md. App. 56, 549 A.2d 393 (1988): legal malpractice – statute of limitations and inquiry notice by asking another lawyer.

Bland v. Hammond, 177 Md. App. 340, 935 A.2d 457 (2007): whether dismissal should be set aside on grounds of fraud, mistake or irregularity.

Crews v Dorn, unreported Court of Special Appeals. Sept. Term 2010, No. 1923 (2010): affirming judgment for defendant in automobile accident case.

Ennis v. Crenca, 322 Md. 285, 587 A.2d 485 (1991): defamation vs. County Council member for statement to the press.

Falik v. Hornage, 413 Md. 163 (2010): discovery of medical expert’s financial records.

Frederick Road Ltd. Partnership v. Brown & Sturm, 360 Md. 76, 756 A.2d 963 (2000): legal malpractice – statute of limitations – notice in a fiduciary relationship.

General Environmental Science Corp. v. NationsBank, N.A., unreported Court of Special Appeals, Sept. Term 1999, No. 1330 (1999): validity of spendthrift provision in trust to prevent trust assets from garnishment.

Giant Food, Inc. v. Washington Coca-Cola Bottling Co., Inc., 273 Md. 592, 332 A.2d 1 (1975): res ipsa loquitor when multiple handling in exploding bottle case

Gourdine v. Crews, 405 Md. 722, 955 A.2d 769 (2008): death case against pharmaceutical company for failure to warn of dangers of medication.

Ibrahim v. Kim, unreported Court of Special Appeals, Sept. Term 1986, No. 108 (1986): intentional infliction of emotional distress.

Imperial v. Drapeau, 351 Md. 38, 716 A.2d 244 (1998): defamation – defense of absolute privilege in statement of conduct of EMT by doctor.

Jacques v. First National Bank of Maryland, 307 Md. 527, 515 A.2d 756 (1986): landmark case: duty owed by bank to customer to use reasonable care in processing loan application.

Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976): leading case establishing Maryland law of defamation in establishing nature of duty owed.

Kirby v. Hylton, 5l Md. App. 365, 443 A.2d 640 (1982): issues pertaining to premises liability and abnormally dangerous condition in a suit against contractor and developer arising out of death of child.

Lampros v Gelb, unreported Court of Special Appeals, Sept. Term 2002, No. 1997 (2002): venue in a declaratory judgment action over fee dispute.

Mardirossian Family Enterprises v. Clearail, Inc., 324 Md. 191, 596 1018 (1991): mechanics lien validity of notice to property owner.

Palmer Ford, Inc. v. Wood, 298 Md. 484, 471 A.2d 297 (1984): leading case on malicious prosecution and abuse of process distinguishing the difference.

Parker v. The Columbia Bank, 91 Md. App. 346, 604 A.2d 521 (1992): fraudulent inducement in statement to protect borrower in draws by contractor.

Saba v. Darling, 320 Md. 45, 575 A.2d 1240 (1990): distinguishing between gross negligence and intentional tort.

 Son v. Margolius, Mallios, Davis, Rider & Tomar, 349 Md. 441, 709 A.2d 112 (1998): holding payment to third party for assistance was fee splitting with non-lawyer.

 Washington Suburban Sanitary Commission v. Grady Development Corp., 37 Md. App 303, 377 A.2d 557 (1977): establishing law of independent contractor – vicarious liability.

Wells v. Polland, 120 Md. App. 699, 708 A.2d 34 (1998): premises liability owner and listing agent had no duty to trespasser.

Commercial Law

Dave & Buster’s, Inc. v White Flint Mall, LLLP, unpublished, Case No. 14-1794 (4thCir. June 11, 2015): statute of limitations, continuous breach doctrine, and waiver in connection with the termination of a commercial lease based on tenant’s breach of a geographic restrictive covenant.

Davidson, et al. v. Laszlo N Tauber & Associates, et al., unreported Court of Special Appeals, Sept. Term 2008, No. 2952 (2010): affirming judgment in favor of defendants in a complicated dispute involving various real estate entities with numerous minority partners following the death of the founding and managing partner and liquidation of assets.

Frederick Refrigeration Company, Inc. v. The Chesapeake and Potomac Telephone Company of Maryland, unreported Court of Special Appeals Sept. Term 1987, No. 308 (1987): validity of limitation of liability in telephone company tariff.

Lerner v. Lerner, 306 Md. 771, 511 A.2d 501 (1986): reverse stock split case establishing standard for interlocutory injunction.

Lerner v. Lerner Corp., 122 Md. App 1, 711 A.2d 233 (1998): corporation law –      duties owed to minority shareholder.

Lerner v. Lerner Corp., 132 Md. App. 32, 750 A.2d 709 (2000): corporation law – establishing standard for reverse stock split.

Lyon Villa Venetia, LLC et al. v. CapitalSource Finance, LLC et al., unreported Court of Special Appeals (2013): issues related to entitlement to, and reasonableness of, contractual attorney’s fees in a commercial case arising out of a $30 million loan.

Marriott Corporation v. Chesapeake and Potomac Telephone Company of Maryland, 124 Md. App. 463, 723 A.2d 454 (1998): liability vel non for service interruption to Marriott’s Reservation Center.

Mayor and Council of Rockville v. Thomas J. Walker, Jr., Substitute Trustee, 98 Md. App. 398, 633 A.2d 479 (1993): violation of covenant to allow City to reenter City property on developer’s default in urban renewal project.

Paskowitz v. Wohlstadter, 151 Md. App 1, 822 A.2d 1272 (2003): shareholder derivative action – direct v derivative claim.

PLC Partners, LLC v. Choice Hotels International, Inc., unreported Court of Special Appeals, Sept. Term 2010, No. 1579 (2010): appealing denial of motion for continuance and to stay case after withdrawal of counsel.

Senior Housing Properties Trust, et al. v. Marriott International, Inc., et al., unreported Court of Special Appeals, Sept. Term 2002, No. 02809 (2002): interpretation of senior housing/assisted living agreement; standards for preliminary injunction.

Tydings v. Berk Enterprises, 80 Md. App. 634, 565 A.2d 390 (1989): corporation law – requirement that corporation have independent counsel in derivative action due to conflict of interest between board and corporation.

Yim’s Inn, Inc. v. Chesapeake and Potomac Telephone Company of Maryland, unreported Court of Special Appeals, Sept. Term 1987, No. 646 (1987): affirming dismissal of complaint alleging various torts.

Insurance Law

Culver v. Continental Ins. Co., 11 Fed. Appx. 42 (4th Cir. 1992): objective standard to determine foreseeability of claims in connection with exclusion of coverage for claims reasonably forseeable at time of policy inception.

Janjer Enterprises Inc. v. Executive Risk Indemnity Inc., 97 Fed. Appx. 410, 2004 WL 1011004 (4th Cir. May 6, 2004): notice – prejudice rule in a claims made policy.

 Larimore v. American Insurance Company, 314 Md. 617, 552 A.2d 889 (1989): validity of co-employee exclusion.

Mardirossian v. Paul Revere Life Insurance Company, 376 Md. 640, 831 A.2d 60, (2003): oral contract to procure disability insurance policy is enforceable.

Matta v. GEICO, 119 Md. App. 334, 704 A.2d 29 (1998): owned vehicle did not qualify as an uninsured motor vehicle under family auto policy.

Monumental Life Insurance Company v. U.S. Fidelity and Guar. Company, 94 Md. App. 505, 617 A.2d 1163 (1993): multiple coverage issues.

Sherwood Brands, Inc. v. Great American Insurance Company, 418 Md. 300, 13 A.3d 1268 (2011): notice – prejudice rule in a claims made policy.

Sherwood Brands, Inc. v. Hartford Accident and Indemnity Company, 347 Md. 32, 698 A.2d 1078 (1997): duty to defend – damages for breach.

Zappone v. Liberty Life Insurance Company, 349 Md. 45, 706 A.2d 1060 (1998): exhaustion of administrative remedies – misrepresentation by agent in vanishing premium case.

Medical Malpractice Law

Brown v. Rabbitt, 300 Md. 171, 476 A.2d 1167 (1984): defining conduct of doctor as practice of medicine subject to arbitration.

Capitol Hill Hospital v. Baucom, 697 A.2d 760 (D.C. 1997): reversing verdict in favor of plaintiff due to the use of preemptory challenges in a racially discriminatory manner (Batson challenge).

Carroll v. Konits, 400 Md. 167, 929 A.2d 19 (2007): adequate report of attesting expert is a condition precedent to a medical malpractice action.

Chudson v. Ratra, 76 Md. App. 753, 548 A.2d 172 (1988): evidence sufficient to support finding of contributory negligence in failure to diagnose cases. Landmark case of patient contributory negligence. Certiorari denied.

Goldberg v. Boone, 396 Md. 94, 912 A.2d 698 (2006): cross-examination of defense expert about his opinions in the sniper murder case was improper, but did not warrant a mistrial.

Lee v. Panton, 792 A.2d 260 (D.C. 2000): affirming verdict in favor of defendant in case arising out of injuries sustained from birth trauma.

McQuitty v. Spangler, 410 Md. 1, 976 A.2d 1020 (2009): doctrine of informed consent applies to choice of treatment as well as to risks of treatment.

Mercy Medical Center v. Julian, 429 Md. 348, 56 A.3d 147 (2012): legal effect of release between hospital and plaintiff on doctor’s right of contribution.

Navarro-Monzo v. Washington Adventist Hospital, 380 Md. 195, 844 A.2d 406 (2004): authority to extend time to file expert report.

Ochs v. Hayward, 407 Md. 231, 964 A.2d 649 (2009): adequate report of attesting expert is a condition precedent to a medical malpractice action.

Orkin v. Holy Cross Hospital of Silver Spring, Inc., 318 Md. 429, 569 A.2d 207 (1990):Res ipsa not available in complex medical malpractice, but an expert can draw inference of negligence from the facts.

Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982): application of arbitration statute and when cancer starts.

Ratino v. Medical Service of District of Columbia (Blue Shield): 718 F.2d 1260 (1983), price fixing by Montgomery County physicians and Blue Cross in violation of Sherman Antitrust Act.

Talley v. Varma, 698 A.2d 547 (D.C. 1997): affirming verdict in favor of defendant in case involving thyroid cancer.

Wagner v. Georgetown University Medical Center, et al., 768 A.2d 546 (D.C. 2001): affirming verdict in favor of defendant in case involving paraplegia subsequent to neurological surgical procedure.

Walzer v. Osborne, 395 Md. 563, 911 A.2d 427 (2006): affirming dismissal of malpractice litigation for failing to file an expert report in a certificate of a qualified expert as required by statute.

Wolff v. Washington Hospital Center, 938A.2d 691 (D.C. 2007): affirming judgment in favor of nursing staff at defendant Hospital on special verdict form that the nursing staff complied with standards of care.

Weidig v. Crites, 323 Md. 408, 593 A.2d 1094 (1991): person not a physician or nurse employed by physician may not be compelled to arbitration.

Yamaner v. Orkin, 313 Md. 508, 545 A.2d 1345 (1988): sanction for second motion for summary judgment. Reversed. Counsel had adequate additional grounds for second motion.