Starke v. Starke

• Decision Date: 03 November 2000
• Docket Number: No. 2134,2134
• Citation: 134 Md. App. 663,761 A.2d 355
• Parties: Bernice C. STARKE v. Albert Edward STARKE.
• Court: Court of Special Appeals of Maryland

761 A.2d 355

134 Md. App. 663

Bernice C. STARKE v. Albert Edward STARKE.

No. 2134, Sept. Term, 1999.

Court of Special Appeals of Maryland.

November 3, 2000.

David C. Slade, Bowie, for appellant.

W. Ray Ford, Camp Springs (Perry J. Becker and Northrop, Walsh, Becker, Colaresi & Spears, Bowie, on the brief), for appellee. Argued before MURPHY, Chief Judge, MOYLAN, and LAWRENCE R. DANIELS (Specially Assigned), JJ.

MOYLAN, Judge.

It is a cliché that the law is a thing of never-ending fascination. This apparently routine appeal confirms the truth underlying that cliché, as we are called upon, for what seems the thousandth time, to make an apparently simple "clear error" analysis of a trial judge's verdict. The never-ending fascination emerges with the realization that we are looking for clear error in a mirror, where left is right and up is down and everything moves in the opposite direction. We are asked to do a familiar thing in what turns out to be an unfamiliar way.

The thrust of the appeal is that a trial judge, in his fact-finding capacity, was clearly erroneous. He is charged, however, with being clearly erroneous not in something that he found but in something that he did not find. Although the distinction has suffered long neglect, those two decisional phenomena are not the same. We do not, and cannot, assess the propriety of what is not done in the same way that we assess the propriety of what is done.

THE TRUE ISSUE

The appellant, Bernice C. Starke, challenges the verdict entered in favor of the appellee, Albert Edward Starke, by Judge Thomas P. Smith in the Circuit Court for Prince George's County. The appellant presents the following issues for our consideration:

1. When title to the appellant's real property was changed from sole ownership by the appellant to joint ownership by the appellant and the appellee, did the trial court err in (a) failing to order a constructive trust or (b) failing to find constructive fraud?

2. Did the trial court err in holding that title to the real property should not be quieted to the appellant's benefit?

Such a framing of the issues, however, hopelessly obscures the single, apparently simple, but ultimately profound issue that is dispositive of everything else. In the way the case now plays out before us, although not in the way it played out before the trial court, the controlling threshold question is whether there existed a confidential relationship between an elderly mother, who signed a deed, and her son, who received a benefit from the deed.

Although we may have to do a little procedural house cleaning at the end of the opinion, all of the legal results with respect to constructive fraud, constructive trust, and the quieting of title follow, essentially automatically, from the answer to that ultimately controlling threshold question. Judge Smith did not find that any such confidential relationship existed. The appellant's case rises or falls with her claim that Judge Smith was clearly erroneous in not so finding.

"CLEAR ERROR" ANALYSIS APPLIES TO VERDICTS AND NOT TO INTERMEDIATE FACT FINDING

The appellant's central claim is that Judge Smith was clearly erroneous for failing to find the existence of a confidential relationship. In her appellate brief, she frames that contention unequivocally:

Whether a "confidential relationship" existed is a question of fact. In a non-jury trial, an appellate court will not set aside a judgment of the trial court on the evidence unless clearly erroneous. Rule 8-131(c). Appellant respectfully submits that, on the basis of the record, even when taking the facts in the best light of the Appellee, the trial court's ruling that no "confidential relationship" [existed] was clearly erroneous.

(Emphasis supplied).

In that contention, the appellant relies on Md. Rule 8-131(c). That Rule, however, has no bearing on the contention. Rule 8-131(c) provides:

When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of witnesses.

(Emphasis supplied).

Rule 8-131(c) does not apply to evidentiary rulings, even rulings that have a critical influence on the outcome of the case. Neither does Rule 8-131(c) apply to ancillary or intermediate findings of fact (or non-findings of fact), even those that might control, as in this case, whether a presumption of undue influence arising out of a confidential relationship should arise.

Rule 8-131(c) applies only to verdicts, conferring on an appellate court the authority to review a verdict on the evidence. Historically, no such authority existed in either court trials or jury trials. In a jury trial, however, it effectively existed because a trial judge's legal decision as to whether the evidence was sufficient to permit the case to be submitted to the jury was reviewable as a matter of law. No such review of the sufficiency of the evidence was traditionally available in a court trial, however, because a judge, in his capacity as a legal referee, was not required to make a legal ruling before submitting the case to himself, in his capacity as a fact finder.

The procedural formality that attends the passing of a case from a legal-referee judge to a fact-finding jury is not present when a judge alone, playing two distinct roles, passes the case from the left hemisphere of his brain, where he "thinks" as a legal referee, to the right hemisphere of his brain, where he "feels" as a fact finder. No legal ruling is involved in the turning of that switch within the brain. Because no legal ruling is involved, there was historically no available mechanism for an appellate court to review on the evidence the verdict of a fact-finding judge.

The predecessor provisions to what is now Rule 8-131(c) conferred on appellate courts the authority to rule on the legal sufficiency of evidence in court trials by applying the clear error standard of review. Such appellate review of a verdict on the evidence became available on the civil side in 1941 and on the criminal side in 1950. Edwards v. State, 198 Md. 132, 153-54, 83 A.2d 578 (1951). See also Isen v. Phoenix Assur. Co. of New York, 259 Md. 564, 270 A.2d 476 (1970)

; Williams v. State, 5 Md.App. 450, 452-59, 247 A.2d 731 (1968). As Edwards v. State, 198 Md. at 154-55, 83 A.2d 578 explained:

Until adoption of the federal and Maryland rules of civil and criminal procedure there was (perhaps with special exceptions under federal statutes) no appellate review of facts at all in the federal or Maryland courts in civil cases at law or in criminal cases.

(Emphasis supplied).

The respective civil and criminal enabling rules for the appellate review of evidentiary sufficiency have now coalesced into Rule 8-131(c). With respect to Rule 8-131(c) itself, however, its concern is not with how the evidence arrived at the state it was in at the end of the adjudicatory process. Its concern is rather with whether the evidence at that stage, however it came to be, is sufficient to permit the deliberative process to begin.

What the appellant is attempting to do is to apply Rule 8-131(c) to an ancillary non-finding of a fact in the middle of the trial. She claims that had the proper "finding" been made that a confidential relationship existed, a presumption in her favor of undue influence would then have arisen. She then hypothesizes, however, the very existence of the presumption she desired and makes the further claim that the ultimate verdicts were erroneous in the face of such an "unrebutted" presumption. The existence of a confidential relationship was not, of course, an ultimate fact in issue. It was not the subject matter of a verdict. Rule 8-131(c) and its "clear error" analysis simply will not stretch as far as the appellant would stretch it.

THE APPELLEE'S BEST VERSION OF THE FACTS

Purely for the sake of argument, however, we will indulge the appellant in the assumption that "clear error" analysis applies to the non-finding of a confidential relationship in this case. We do so because of the rare opportunity it affords to explore the heretofore almost totally unexplored subject of how a fact finder could ever be clearly erroneous with respect to what was not found. It is not inappropriate that we do so in this case, moreover, because although Rule 8-131(c) itself may literally apply only to ultimate verdicts, we do in various contexts apply the "clearly erroneous" criterion to a trial judge's ancillary fact finding on a variety of intermediate issues that can come up for appellate review.

As we probe Judge Smith's verdict and, arguendo, its antecedent fact finding for clear error, "the prevailing party is entitled to have the evidence viewed in the light most favorable to it." Goodwin v. Lumbermens Mut. Cas. Co., 199 Md. 121, 127-30, 85 A.2d 759 (1952). See also Burroughs Int'l Co. v. Datronics, 254 Md. 327, 337, 255 A.2d 341 (1969)

; Balt. & Ohio Railroad v. Kuchta, 76 Md.App. 1, 11, 543 A.2d 371 (1988); and Levin v. Levin, 43 Md.App. 380, 386, 405 A.2d 770 (1979). The prevailing party, of course, is the appellee and it is in his direction that our interpretative favor will tilt. Moosavi v. State, 118 Md.App. 683, 692-95, 703 A.2d 1302 (1998),

rev'd on other grounds,

355 Md. 651, 736 A.2d 285 (1999).

The appellant is the 95-year-old mother of the appellee. She is almost totally blind, almost totally deaf, and suffering from diabetes. For approximately twenty years prior to August of 1997, the appellant lived alone in her residence at 4907 Ridgeview Lane in Bowie. On August 26, 1997, however, she was taken to Laurel Regional Hospital because of problems she had been having with her foot, complicated by her diabetes. A few days later, on September 3, the appellee drove to Maryland from his Florida residence to...