Legal Opinions - Maryland Court of Special Appeals: October 20, 2008

Daily Record, The (Baltimore), Oct 20, 2008

The Zitterbarts did not present the court, in opposition to the summary judgment motion, with any admissible evidence that could support a state warranty claim under any of the statutes recited above. Accordingly, the court properly granted summary judgment on the MMWIA claim.

PRACTICE TIPS: The Zitterbarts cited DiVigenze v. Chrysler Corp., 345 N.J. Super. 314, 328-29 (App. Div. 2001), and Matter of DaimlerChrysler Corp. v Spitzer, 7 N.Y.3d 653, 662 (2006), for the proposition that a consumer bringing suit under New York or New Jersey lemon laws is not required to prove that the same defect persisted until trial, because a contrary ruling would place the consumer in the position of either seeking a satisfactory repair or maintaining a potentially unsafe or useless vehicle in order to preserve the right to bring a claim.

Those rulings, which overlook the plain language of the word "continues," as it appears in CL [section]14-1502(d), and in comparable provisions of those states' laws, had no application to the Zitterbarts' claim. The Zitterbarts failed to offer sufficient proof that a defect or non-conformity that was not timely corrected ever existed, let alone existed on the date of the summary judgment hearing.

Criminal Law

Second-degree felony murder

BOTTOM LINE: Second-degree felony murder conviction reversed where trial court erroneously instructed jury that attempted robbery with a dangerous weapon supported that charge.

CASE: Goldsberry v. State, No. 261, September Term, 2007 (filed Oct. 6, 2008) (Judges Davis, EYLER, J. & Wilner (retired, specially assigned)).

FACTS: In March 2006, while visiting James Goldsberry, Wendy Braxton received a call from Vincent Chamberlain inviting her and Goldsberry to his house to smoke marijuana.

Upon arriving at the house, Chamberlain handed Braxton some marijuana to roll, and while doing so, Goldsberry and Chamberlain discussed selling marijuana. The three then proceeded to a field behind the house to smoke, after which Braxton departed with Goldsberry, dropping him off at his apartment.

Later that evening, Goldsberry called Braxton to ask questions about Chamberlain. Braxton subsequently received a call from Chamberlain asking if she wanted to play cards, and requesting that she pick him up.

Upon returning to Chamberlain's home, at approximately 10:00 pm, Braxton saw Goldsberry and another individual parked in front of the house. Goldsberry exited the car and spoke with Chamberlain outside the house. Goldsberry then left in his car, stating that he had to "go get something." When he returned, Goldsberry proceeded with Chamberlain to a shed attached to the rear of the house.

Braxton later walked to the shed, and, upon entering, saw Goldsberry leave, then return with James Myers, Jr. As Goldsberry and Myers entered the shed, Goldsberry pointed a gun at Chamberlain and said "[g]ive me the stuff." Braxton ran to hide behind a tree, where she observed Myers chasing Chamberlain and heard a gunshot. Braxton then saw Goldsberry run out of the house, Myers run to the front of the house, and Chamberlain fall to the ground.