IN THE COURT OF SPECIAL APPEALS OF MARYLAND. September TERM, 2014 No. 719 STEPHEN D. CHAMBERLAIN Appellant ¥ JUDITH C. CHAMBERLAIN Appellee APPEAL FROM THE CIRCUIT COURT OF ANNE ARUNDEL COUNTY (THE HONORABLE JUDGE PAUL F. HARRIS, Jr.) APPELLANT’S BRIEF STEPHEN D. CHAMBERLAIN Pro Se Litigant Personal Information RedactedTABLE OF CONTENTS STATEMENT OF THE CASE QUESTIONS PRESENTED ©... 222 ae) STATEMENT OF FACTS... ....-..-2..0..... 60ee ss eae 4 ARGUMENT «2... cece eee 12 I. Did the Circuit Court have jurisdiction to try a case for which there was no live controversy?.. 2.0.2.0... tee B IL Is the oral agreement made on the record on April 18, 2014 voidable due to duress, undue influence, the lack of essential terms, and modification by the trial judge? 2... eee 19 IIL. Was it an abuse of discretion for the trial judge to sign a Consent Order 3 weeks after he was aware one party had claimed duress and did not give his assent to the agreement?.......... 31 CONCLUSION... eee eee 35 AFFIDAVIT. 2.222 eee eee 35 (CERTIFICATE OF SERVICE: tee ee 35 STATEMENT PURSUANT TO RULE 8-504 (a) (8)... 0-2... eee eee 35 TEXT OF STATUTES & RULESTABLE OF CITATIONS Cases Attorney Gen. v. A.A. County School Bus, 286 Md. 324, 327, 407 A.2d 749, 752 (1979) 20. eee Beall v. Beall, 291 Md. 224, 229, 434 A.2d 1015, 1018(1981) ...........- Boyds Civic Ass’n v. Montgomery County, 526 A. 2d 598, 609 (Md. 1987)... .. « Boyds Civic Ass’n v. Montgomery County Council, 309 Md. 683, 689 (1987)... . Central Bank v. Copeland, 18 Md. 305 (1862) ...... Coburn y. Coburn, 342 Md. 244, 250 (1996) 62... ee ee ee Cochrane v. Norkunas, 398 Md. 1, 16, 919 A.2d 700, 709-10 (2007)......... Cook v. Alexandria National Bank, 263 Md. 147, 151-52 (1971)... 0... eee Deleon Enterprises, Inc. v. Zaino, 92 Md. App 399 (1992)... 0... 0... cee Dorsey v. Wroten, 370 A.2d 577 (1977). . Eckstein v. Eckstein, 38 Md. App. 506, 512 (1978). . . Eckstein v. Eckstein, 38 Md. App. 514 (1978) First Federated Trust Corp. v. Commissioner, 272 Md. 329 A.2d 335 (1974) First Federated Trust Corp. v. Commissioner, 272 Md. 329, 334, 322 A.2d 539, 543 (1974)... Be Fister v. Allstate Life Ins. Co., 336 Md. 201, 210, 783 A.2d 194, 199 (2001)... . . Food Fair Stores, Inc. v. Joy, 283 Md. 205, 216-18 (1978)... 2.2... Fooks’s Executors v. Ghinger, 172 Md. 612, 192 A.782 (1937)....... Fowler v. Mumford, 48 Del. 282, 102 A.2d 535 (1954)... 2.2... ee ee Gardner v. Board of County Comm’rs, 320 Md. 63, 71, 576 A.2d 208, 212 (1990). . Graham v. Graham, 190 Md. 434, 444 (1948)... 22... 18 24 20 18 20 12 18Hammond v. Lancaster, 194 Md. 462, 471 (1950)... 6.2... 00. ee 3) Hatt v. Anderson, 297 Md. 42, 45 (1983)... 02... eee ee .. 17 Hochman v. Zigler’s, Incorporated, 139 N.J. Eq. 139, 50 A.2d 97 (1946)... . 0... 20 Human Resources v. Roth, 398 Md. 137, 143, 919 A.2d 1217, 1221 (2007) ..... . 14 Kaplan v. Kaplan, 25 Ill.2d 181,182 N-E.2d 706 (1962)... 0. eee eee 20 Meredith v. Talbot County, 80 Md. App. 174, 183 (1989).............-0 20 Post v. Bregman, 349 Md. 142, 159(1998)... 2... Bogen sGbub008 Ww Pumphrey v. Pumphrey, 11 Md, App. 287, 273 A.2d 637, 639 (1971)... 2.2.04 25 Redman v. State, 363 Md. 298, 303 n. 5, 768 A.2d 656, 659 n. 5(2001).. . - 32 Ryan v. Johnson, 220 Md. 70, 150 A.2d 906 (1959)... 2... eee eee eee ee 33 Saggese v. Saggese, 15 Md. App. 378, 388 (1972)... 2... 2... eee eee ee 20 Smith v. Luber, 165 Md. App 458, 885, A.2d 894 (2005) . -3 State v. Peterson, 315 Md. 82,553 A.2d at 677 (1989) 14 Stevenson v. Lanham, 127 Md. App. 597, 612 (1999) 14 Suter v. Stuckey, 402 Md. 211 (2007)... 2... eee eee 13 (Tshiwala vi State, 424)MaNGI2 (0012) te ee ee vee AB ‘Walton v. Mariner Health, 391 Md. 643, 660, 894 A.2d 584, 594 (2006). . . 24 Statutes & Rules Mad. Rule 2-324 (b) 2... eee eee 17, 24 Md. Rule 2-506... 2... eee eee Md. Rule 8-131 (a)... 2. ee eee eee 12 Md. Rule 8-131 (©) eect eee ee 12 Ma. Rule 16-813 Rule 2.9(0) 0 eee eee ee 7Md. Rule 16-813 Rule 2.11 (a) (2)(C)(D)B)@) MIB). .......-..00 00 12 Maryland Courts and Judicial Proceedings § 1-501 aie) Maryland Courts and Judicial Proceedings § 3-405 (a)(1) ......... 8, 24 Maryland Courts and Judicial Proceedings § 3-409 (a) (I)... 2.2.0... 0 02 17 Maryland Courts and Judicial Proceedings § 12-308... 2... .........-2005 13 USS. Constitution Article III Section2 .. 2... 2.0... 0.2222 oes BD Annotations Restatement (Second) of Contracts, § 74 (1) (1981) .........0. 05 .. 28 Restatement (Second) of Contracts § 175 (1981)...........0.0.0-- 19 Restatement (Second) of Contracts § 176 (1981)... 22... ...0.0000% 19 Restatement (Second) of Contracts § 177 (1981)... 2.2... .0....00% 20 Williston on Contracts, §1606-1607 (3rd ed., W. Jaeger ed 1970) . . . -20Statement of the Case This case is about a father who agreed to pay for a major university his son had asked for permission to attend. After the son applied, was accepted, and offered a 4 year academic scholarship, the father was sued in an effort to force him to pay an additional $100,000 for a different school the son would rather attend but that the father could not afford. This case is aot about a father attempting to avoid his contractual obligat settling a legal dispute by agreeing to a Consent Order. This is a case about vexatious litigation, abuse of the legal process, clear judicial error, judicial bias, judicial overreach, and due process violations. It is about an unlawful order that emanated from a case the lower Court heard when it had no authority to adjudicate the matter. It is about a party being coerced into placing an oral agreement on the record while under duress. It is about a trial judge who unilaterally signed a Consent Order well after it was clear one party did not give his assent. ‘The entire matter revolved around one sentence in a College Education provision in a Marital Settlement Agreement. That sentence required three parties (the Husband, Wife, and Child) to agree on what schools the son would apply to, and then what school the son could enroll in In a March 25, 2013 email, the son asked for his father’s permi sion to apply to Auburn University and Virginia Tech. The father agreed to Auburn University. The son applied to Auburn, his mother paid the application fee, he was accepted and awarded a four year academic scholarship worth approximately $35,000. The son then decided he wanted to attend Virginia Tech instead of Auburn, despite the father explaining why he could not afford to pay for that school (Virginia Tech would cost at least $100,000 more than Auburn). The father then offered to provide the same amount of money he would have paid if the son attended Aubum to be used for any school the son chose. That offer ‘was refused. The mother then sued the father for breach of contract and asked the Courtto re-write the parties’ Marital Settlement Agreement so the son could apply to any schoo! he desired without the father’s consent. Four days prior to the Merits Hearing of April 18, 2014, and 207 days after filing her Complaint, Ms. Chamberlain, the Appellee, filed a Request for Voluntary Dismissal of her own action. The legal basis Ms. Chamberlain provided was that the only issue she brought before the Court had become moot and there was no longer any relief the Court could grant (four months earlier the son had gone ahead and applied to the school of his choice, Virginia Tech, without his father’s approval). Mr. Chamberlain, the Appellant, filed a Response to this Request for Voluntary Dismissal on April 17, 2014, and hand- delivered a copy to the trial judge’s chambers. In his reply, he agreed the issue was moot, the case should be dismissed, and that he should be awarded legal fees as the evidence showed the action had been sustained for over 4 months after the issue had become moot. With both sides having declared the issue moot, and both parties having sought dismissal, Mr. Chamberlain and his attorney arrived in Court on the moming of April 18th understanding there would be no hearing except to determine the issue of legal fees. At the commencement of the Merits Hearing, however, the judge disregarded the evidence before him which proved the case was moot, allowed Ms. Chamberlain’s counsel to withdraw her Request for Voluntary Dismissal without question or explanation, and proceeded to hear a case without having subject matter jurisdiction. The trial judge then made numerous structural errors before abruptly suspending the proceeding and holding an in chambers discussion with both parties’ attorneys. Mr. Chamberlain’s attomey entered this discussion having consistently presented unassailable legal positions over 7 months in support of his client, and had just aggressively represented him for a number of hours in the hearing, Throughout this litigation his attomey had consistently stated the other party had no case and the only possibility of an unfavorable outcome would be due to the assignment of the judge. His attorey emerged from the in chambers discussion and advised Mr. Chamberlain the judge considered thecontract language unenforceable but that he would enforce it anyway based on who he believed. Mr. Chamberlain's counsel explicitly stated that if Mr. Chamberlain continued with the hearing he would be “making the mistake of a lifetime.” His counsel then flatly Tefuused to elucidate the facts necessary during direct examination to form the basis of a record for appellate review if Mr. Chamber! chose to press on with his defense. There could be no other explanation for this decisive leap from staunch advocate to the complete abdication of his client's defense should the hearing continue than a credible threat having been made in chambers. Afier expending enormous resources in his efforts to achieve justice, and after waiting 7 long months for a trial to present his defense, Mr. Chamberlain was initially forced to participate in a trial over a matter which had been declared moot by both parties, then denied his right of due process and coerced into an oral agreement he made under duress. The totality of the circumstances --- from the initiation of the meritless action --- to countless motions which yielded no relief --- to the filing of a second, equally frivolous action to modify child support for an adult -— to a judge proceeding to try a case for which there was no live controversy --- to the structural errors which affected the trial --- to the judicial bias and overreach —- to Mr, Chamberlain's own counsel’s unwillingness to advocate for him after an in chambers conference with the trial judge —- all of this created the duress necessary for Ms. Chamberlain to achieve her objective: coerce the defendant into a settlement with more favorable terms than the present contract required. It is within this context the appeal of that order has been timely filed by Mr, Chamberlain. Questions Presented L Did the Circuit Court have jurisdiction to try a case for which there was no live controversy?Il. _ Is the oral agreement made on the record on April 18, 2014 voidable due to duress, undue influence, the lack of essential terms, and modification by the trial judge? TIL. Was it an abuse of discretion for the trial judge to sign a Consent Order 3 weeks after he was aware one party had claimed duress and did not give his assent to the agreement? Statement of Facts ‘The Prologue The parties in this case, anticipating an uncontested divorce, drafted a settlement agreement in November 2008. This agreement was transformed into a legal contract by an attomey, and was incorporated, but not merged, with the divorce decree as a Marital Settlement Agreement. One provision of this agreement was that Mr. Chamberlain would pay certain college expenses for each of their three children and that the selection of the school would be made by three parties: the Husband, Wife and the Child. ‘There needed to be a consensus on the choice of school prior to application and again prior to enrollment. This contractual sentence ensured Mr. Chamberlain would have a say as to the number of application fees he would be responsible for and, ultimately, the expense of the college he would be paying for. The complete college education provision in the Marital Settlement Agreement reads: “The parties have contributed to Florida’s Prepaid College Plan and Maryland College Savings Accounts. After the funds from the Florida and Maryland college accounts have been depleted, Husband shall pay the costs of tuition, room and board, books, registration fees, and reasonable application fees incident to providing each Child with an undergraduate college education for four consecutive years of college. The selection of which college or university each Child shall attend shall be made by the Husband, Wife and the Child, prior to application and prior to enrollment.” (emphasis added) (E-50) Mr. Chamberlain's first two children attended and graduated from the University of Alabama. The parties’ third and youngest child, John Chamberlain, informed his father 4in the spring of 2013 he had “narrowed his choice of schools” to Auburn University and Virginia Tech. In an email to Mr. Chamberlain on March 25, 2013, John Chamberlain stated: “T have narrowed my selection down to two schools with several things. I looked for schools that offered: medium to large student base, good architecture program, low cost, job rates, and other minor things, The two schools with the best value are Auburn and Virginia Tech, each school has pros and cons.” (E-82) In an email to John on June 30, 2013, Mr. Chamberlain authorized an application to be sent to Auburn University. (E-90) In an email to both John and Ms. Chamberlain on July 9, 2013, Mr. Chamberlain offered an additional 6 schools to choose from, including the University of Alabama. (E-88) On August 27, 2013, Ms. Chamberlain paid the application fee, on behalf of John, to Auburn University. (E-125) John received a letter of acceptance to Auburn on October 15, 2013. He was subsequently awarded a Founder's Scholarship which was a four year, full academic scholarship. (E-125) ‘The Comp! On September 19, 2013, Ms. Chamberlain filed her Complaint to Enforce Marital Settlement Agreement and Consent Order of August 31, 2011, and for Declaratory Judgment. (E-22) Her pleading failed to identify a breach of any contractual term in either the Marital Settlement Agreement or the 2011 Consent Order. The ad damnum clause of her Complaint identified 4 requests for relief, the only substantive request being for declaratory relief concerning the requirement for “the Husband, Wife and the Child” to agree on schools prior to application: b. Order that the minor child may apply to the schools of his choice in order to determine whether or not he qualifies for admission and may be entitled to any scholarships. (E-24) On October 18, 2013, Mr. Chamberlain filed his Answer to Complaint to Enforce and for Declaratory Judgment (E-27), in which he stated:“..there is no language whatsoever in the parties’ Marital Settlement Agreement or in the Consent Order (of 2011) which support Plaintiff's contentions.” (clarity added) “..dhe ‘issue’ which the Plaintiff has attempted to ‘resolve’ is her insistence that the Marital Settlement Agreement be interpreted differently than it was written by the parties...” “That the Complaint fails to set forth a cause of action upon which relief can be granted.” “The Complaint has been filed by the Plaintiff in bad faith and without substantial justification, as the Plaintiff has ignored the plain and unambiguous language of the parties’ Marital Settlement Agreement in filing this action, and the Defendant should be awarded his attomeys fees and litigation expenses in accordance with Rulle 1-341.” “Wherefore, Stephen D. Chamberlain, Defendant, requests this Honorable Court to dismiss the complaint...” Mr. Chamberlain's request for the case to be dismissed was not ruled on prior to the Merits Hearing on April 18, 2014. ‘The Subpoena and the Motion to Modify Child Support On September 27, 2013, the Clerk of Court issued a subpoena drafted by Plaintiff's attorneys commanding Southwest Airlines Co. to personally appear and produce documents, including Mr. Chamberlain’s pay and personnel records. (E-34-35) Mr. Chamberlain immediately filed a Motion to Quash (E-31) because the information Fequested was wholly irrelevant to the Court’s review and interpretation of the contract provision. On November 18, 2013, the Court denied Mr. Chamberlain’s Motion to Quash and for Protective Order, allowing Ms. Chamberlain access to his personnel and financial records. (E-13) On January 27, 2014, Ms. Chamberlain filed a Motion for Modificationof Child Support despite acknowledging John had tured 18 years old on October 16, 2013. (E-104) She also acknowledged that contractual support for John would continue afier he graduated from high school until May 31, 2018, his expected graduation date from college. (E-105) There was no legal basis for this action and the record shows there was no material change in circumstances. The Court bifurcated the Child Support issue from the College Education issue and set a trial date for May 29, 2014. (E15) Summary Judgment On Complaint to Enforce and Declaratory Judgment On October 18, 2013, Mr. Chamberlain filed a Motion for Summary Judgment on Plaintiff's Complaint to Enforce and for Declaratory Judgment. (E-38) On October 29, 2013, Ms. Chamberlain filed her Opposition to Defendant’s Motion for Summary Judgment. (E-67) A Summary Judgment Hearing was held on January 9, 2014. During this hearing, information directly sought by Judge Wachs was withheld by Ms. Chamberlain’ counsel. Judge Wachs denied summary judgment despite finding no dispute of material facts. (E-13) After the hearing, Mr. Chamberlain discovered that John had already applied to Auburn, and had been accepted, more than two months prior to the hearing. On January 27, 2014, Mr. Chamberlain filed a Motion to Revise Denial of Summary Judgment based on this newly discovered and relevant information. (E-96) This motion languished in the Court for more than 4 months and was never ruled on. Settlement, Request for Voluntary Dismissal, Mootness On April 14th, 2014, after 207 days of legal action and 4 days before she would be required to present her case, Ms. Chamberlain filed her Motion for Voluntary Dismissal with the Court, (E-112) The basis for her request was that John had already applied and had been accepted to two schools, and that: o i ae . moot and the issue involving each parties” future obligation to contribute towardscollege tuition payments has yet to mature, there is no longer any need for the hearing currently set on April 18, 2014.” (emphasis and underline added) (E-113) Furthermore, Ms. Chamberlain explicitly stated that “Pursuant to Rule 2-506, Plaintiff requests this Court enter an Order of Plaintiff’s voluntary dismissal of the Complaint to Enforce so that the hearing on April 18, 2014 may be cancelled....” (E-113) (App-1) Mr. Chamberlain filed his Response on April 17, 2014 (E-115) and it was hand- delivered to the Honorable Judge Paul F. Harris’s chambers. Mr. Chamberlain’s concurrence that the controversy before the Court had become moot was explicit: “That, while the Defendant does not dispute that John’s decision to file for admission to colleges before receiving the assent of his parents does render the issue, the dispute has been moot for several months but has nevertheless been carried forth by the Plaintiff at considerable expense to both parties in attorney’s fees and legal expenses, including both parties’ preparation for and attendance at a Motion for Summary Judgment hearing held on January 9, 2014.” (emphasis and underline added) (E-116) Mr. Chamberlain requested the Court grant the Plaintiff's Request for Voluntary Dismissal, with prejudice, and order the Plaintiff to reimburse his attorney's fees incurred sinee December of 2013. (E-116) During preliminary issues at the commencement of the Merits Hearing the following day, the opening dialogue provides irrefutable evidence (a) the trial j ddge was aware formal pleadings had been filed by both parties that declared the only issue before the Court to be moot, (b) both parties had requested a dismissal, and (¢) no evidence was provided which explained how the issue which had been declared moot by Ms. Chamberlain on Monday was now somehow “un-mooted” on Thursday. (E-181-194) Third Party Beneficiaries and Exposure to Future Lawsuits The record then shows that despite repeated efforts to explain Md, Courts and Judicial Proceedings § 3-405 (a) (1) to the Judge, and after reading the law for himself, 8the Judge then failed to join the third party beneficiary to the contract, John Chamberlain, as a party to this case as required by law, (E-194-211) (App-4) The Introduction of Parol Evidence The judge acknowledged his understanding he was hearing a contract interpretation case and that he would have to “make a decision at some point on what the agreement says.” (E-188) Nevertheless, the judge directed the admission of parol evidence into the proceeding prior to hearing any evidence on the contract language and prior to making a determination that the contract language in question was ambiguous. This structural error was extremely prejudicial to Mr. Chamberlain and contributed to the judge’s bias during the trial. (E-189, E-211) The In Chambers Discussion After direct examination of Ms. Chamberlain by her counsel, and in the middle of withering cross-examination by Mr. Chamberlain's counsel, Judge Harris abruptly halted the proceedings and declared: “I'll tell you what, I think I’ve heard a lot right now. I want to see counsel in chambers. Maybe we can save a little time.” (E-259) Emerging from this private discussion, Mr. Chamberlain's attorney abandoned his defense. He informed Mr. Chamberlain that the Judge said “he believes the language is unenforceable” but that he also added “he would rule based on who he believed.” (E-131) Mr. Chamberlain perceived his attorney was threatened with an unfavorable ruling during the in chambers discussion should the hearing continue. There could be no other plausible reason for his attorney to suddenly cease advocating on his behalf. Because Mr. Chamberlain had yet to present a defense, he was still inclined to continue with the hearing. Expressing this desire, but being advised to expect an unfavorable ruling, Mr. Chamberlain conferred with his attorney about the need to establish a record for appellate review. His attomey flatly refused his request to create an adequate record during direct examination which would allow for a suc ssful appeal of the matter.‘After witnessing numerous judicial errors during the hearing to this point, being advised by his counsel that the judge said he was going to enforce an unenforceable contract, and the extreme shift in his attorney’s level of advocacy from tenacious and unrelenting to a direct refusal to present an adequate defense if the hearing continued, Mr. Chamberlain was forced into making an oral agreement on the record. The Oral Agreement and the Voir Dire Mr. Chamberlain was coerced into an oral agreement which was general in nature, was missing essential terms, was absent of any consideration, did not resolve the controversy, and which provided the Plaintiff opportunity to litigate the matter in the future. (E-259-266) While the transcript of the voir dire of the parties appears to indicate Mr. Chamberlain gave his consent to the agreement, two critical elements of the voir dire process indicate otherwise. First, when asked if he understood the agreement being placed on the record and if he felt the agreement was fair, the audio recording of the answer shows that Mr. Chamberlain paused nearly 2 seconds prior to answering, and the answer was made in an overtly distressed tone. (See audio excerpt) Second, Mr. Chamberlain was never asked, nor did he admit, that he was making the agreement voluntarily. ‘The transcript clearly indicates it was the trial judge who declared that Mr. Chamberlain was not being coerced or under duress, a statement Mr. Chamberlain only became aware of after reading the transcript. (E-268) The Motion To Strike Appearance And The Legal Vacuum On April 28, 2014, Mr. Chamberlain and his attorney mutually agreed to file a Motion to Strike Appearance due to financial reasons after the hearing. (E-17). Ms. Chamberlain's counsel was notified the same day. Ms. Chamberlain's counsel immediately drafted a Consent Order and sent it directly to the trial judge, encouraging 10him to sign it unilaterally. (E-149) Her counsel then filed a Response and Opposition to Motion to Strike Appearance, an extraordinary action taken to delay the Court's ruling on Mr. Chamberlain’s Motion to Strike Appearance. (E-144) In this pleading, Ms. Chamberlain specifically asked the Court to “grant the Defendant's counsel's request that their appearance be stricken contemporaneous with the Court’s approval, execution and entry of the proposed Consent Order.” (emphasis added) This proposed Order was drafted unilaterally and without the assent of Mr. Chamberlain, The Court granted Mr. Chamberlain's Motion to Strike Appearance 15 days later on May 13, 2014, Ms. Chamberlain's efforts to deny Mr. Chamberlain’s right to strike the appearance of his attorney created a legal vacuum for over two weeks, As Mr. Chamberlain’s counsel was not being paid, and therefore no longer advocating for him, and the Court had yet to recognize Mr, Chamberlain as a self-represented litigant, Ms. Chamberlain successfully delayed Mr. Chamberlain's ability to file legal pleadings indicating he was coerced into making the oral agreement on the record and did not assent to the Consent Order before the Court, ‘The Requests For Relief and Declarations of Dissent Immediately after being recognized as a pro se litigant and his counsel’s appearance being stricken by the Court, Mr. Chamberlain sought relief from the Court. He filed a Motion for Declaration of Mistrial and for Scheduling of Expedited Hearing on May 16, 2014 and highlighted the significant judicial errors which took place during the hearing, in addition to clearly stating he was under duress when the oral agreement ‘was made during the hearing on April 18, 2014, (B-129) This pleading was filed just 3 days after Mr. Chamberlain's counsel’s appearance was stricken and Mr. Chamberlain was able to defend himself. After conducting further research into the doctrine of mootness and the lower Court's jurisdiction, Mr. Chamberlain filed a Motion to Dismiss on June, 3, 2014, "which focused the lower Court's attention on the incontrovertible evidence that the issue before the Court on April 18 2014 was moot and that the Court lacked subject matter Jurisdiction to proceed with the hearing, (E-166) The Motion for Declaration of Mistrial was denied by the same judge who Mr, Chamberlain alleged had no authority to hear the moot case, who had made serious judicial errors during that proceeding, and who demonstrated significant judicial overreach during the in chambers meeting. (E-175) The Motion to Dismiss was never ruled on. (E-166) Prior to Judge Harris unilaterally signing the Consent Order of June 5, 2014, the pleadings filed with the lower Court not only emphatically stated that Mr. Chamberlain did not assent to the Consent Order, but highlighted the Court’s lack of subject matter Jurisdiction, serious judicial errors during the hearing, and supported his claims he was coerced into the oral agreement made on the record. Rather than recuse himself as mandated by Md. Rule 16-813 Rule 2.11 (a) (2) (C), Rule 2.11 (a) (2) (D) @), and Rule 2.11 (©) [1] [2], Judge Harris modified the Consent Order draft provided to him by Ms. Chamberlain’s counsel, included terms not found in the oral agreement, and unilaterally signed it as an Order of the Court. (E-176) (App-3-4) ‘Thus, the June 5, 2014 Order became a final judgement in this case. Argument Standard of Review Issues of jurisdiction of the trial court over the subject matter may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Md. Rule 8-131(a). (App-2) When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. Md, Rule 8-131(c). (App-2) When legal error is at issue the standard of review is de novo. A claim that the Court lacked subject matter jurisdiction may be raised at any time. Gardner x. Board of County 2Comm'rs, 320 Md. 63, 71, 576 A.2d 208, 212 (1990). The Court of Special Appeals has exclusive initial appellate jurisdiction over any reviewable judgment, decree, order or other action of a circuit court, and an orphans’ court. Md. Courts and Judicial Proceedings § 12-308. (App-5) If there was no consent beeause the judgment was coerced, exceeded the scope of consent, or was not within the jurisdiction of the court, or for any other reason consent was not effective, an appeal will be entertained.” Suter v. Stuckey, 402 Ma. 211 (2007). I the Circuit Court have jurisdiction to try a case for which there was no live controversy? The jurisdiction of the Circuit Court is defined in Md. Courts and Judicial Proceedings § 1-501. (App-4) Being “the highest common-law equity court of record” in the state, the Circuit Court has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county ... “except where by law jurisdiction has been limited or conferred exclusively upon another tribunal.” (emphasis added) The Supreme Court of the United States has interpreted the Case or Controversy Clause of Article III Section 2 of the U.S. Constitution as embodying distinct limitations on judicial power. (App-5) The Constitution limits courts to adjudicate cases for which there is a “live controversy”. In other words, if there is no relief the court can provide, the court will not hear the case, It is well settled in Maryland that the Circuit Court will not hear moot cases. This limitation has been affirmed in countless Maryland appellate court opinions The American doctrine of judicial review may be considered as a correlative to the doctrine of the separation of powers, and must always be exercised with due regard to the legislative prerogative. There are a number of subordinate rules that tend to limit the scope of review, among the most important of which are the presumption of constitutionality and the rule that courts will not decide moot or abstract questions, or, in the absence of constitutional mandate, render advisory opinions. Hammond y. Lancaster, 194 Md. 462, 471 (1950). 13A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant. Human Resources v. Roth, 398 Md. 137, 143, 919 A.2d 1217, 1221 (2007); Attorney Gen. v. A.A. County School Bus, 286 Md. 324, 327, 407 A.2d 749, 752 (1979), A controversy is justiciable if it is “live,” ie., it is one which there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. Boyds Civie Ass'n v. Montgomery County, 526 A. 2d 598, 609 (Md. 1987). ‘A case is moot when there is no longer an existing controversy between the parties at the time it is before the court so that the court cannot provide an effective remedy. Coburn v. Coburn, 342 Md. 244, 250 (1996). It is well established that a controversy generally is not justiciable if it has become moot. Stevenson v. Lanham, 127 Md. App. 597, 612 (1999). There are three well known exceptions to the limitation on hearing cases with no live controversy, or moot cases. None of those exceptions is present in this case, nor would the authority to hear such cases rest with the Circuit Court. This authority has been conferred exclusively upon the appellate courts. In State v. Peterson, the Court of Appeals said “Generally when a case becomes moot, we order that the appeal of the case be dismissed without expressing our views on the merits of the controversy. Nevertheless, there is no constitutional prohibition which bars the appellate court from expressing its views on the merits of a case which becomes moot during the appellate proceedings.” State v. Peterson, 315 Md. 82,553 A.2d at 677 (1989). In the case at bar, the signal question is: Was there a live controversy before the Court on April 18, 2014 when the trial judge proceeded with a Merits Hearing? The only relief Ms. Chamberlain sought from the Court was a declaratory judgment on the meaning of a single sentence in a Marital Settlement Agreement. The sentence reads: “The selection of which college or university each Child shall attend shall be made by the Husband, Wife and the Child, prior to application and prior to 4enrollment.” (E-50) Mr. Chamberlain's position was that the three parties were required to agree upon the schools where applications could be sent, and then again, where the son, John, could enroll. Ms. Chamberlain acknowledged in her own complaint that: “pursuant to the language of the Marital Settlement Agreement, John cannot even apply to colleges to determine whether or not he qualifies for scholarships or other forms of non-loan based aid without an_agreement_from_the Defendant. (underlined added) (E-23). Tt was because she knew all three parties had to agree on the school that she asked the Court to rewrite the sentence so the son could apply to the schools of his choice. After 207 days of litigation, and just 4 days prior to the hearing, Ms. Chamberlain filed a Motion for Voluntary Dismissal. (E-112) The basis for her request was explicit: cm , in Plaintiff's Complaint to E A mat and the issue involving each parties’ future obligation to contribute towards college tuition payments has yet to mature, there is no longer any need for the hearing currently set on April 18, 2014.” (emphasis added) (E-113) ‘The relief Ms. Chamberlain sought from the lower Court was equally explicit: “Pursuant to Rule 2-506, Plaintiff requests this Court enter an Order of Plaintiff's voluntary dismissal of the Complaint to Enforce so that the hearing on April 18, 2014 may be cancelled and the matter may proceed on the child support issue scheduled to be heard May 29, 2014. (E-113) (App-1) On April 17, 2014, Mr. Chamberlain filed a Response to Plaintiff's Request for Voluntary Dismissal and additionally hand-delivered this pleading to the trial judge’s chambers. In this Response, Mr. Chamberlain is equally unequivocal in his declaration to ‘the Court that the issue is moot and asked the Court to dismiss the action: “That, while the Defendant does not dispute that John’s decision to file for admission to colleges before receiving the assent of his parents does vender the issue, the dispute has been moot for several months but has nevertheless been carried forth by the Plaintiff at considerable expense to both parties in attomey’s 16fees and legal expenses, including both parties’ preparation for and attendance at a Motion for Summary Judgment hearing held on January 9, 2014.” (emphasis added) (E-116) “WHEREFORE, Stephen D. Chamberlain, Defendant, requests this Honorable Court grant the Plaintiff's Request for Voluntary Dismissal...” (E-116) Within this pleading, Mr. Chamberlain provided the Court with evidence proving the issue had been moot since December 6th, 2013 (financial statement showing application fee paid for by Ms. Chamberlain to Virginia Tech, the school of John’s choice) (E-121). He also highlighted the fact that Ms. Chamberlain withheld this information from Mr. Chamberlain, and the Court (when asked if and when John had applied to Virginia Tech in an Interrogatory, Ms. Chamberlain deceptively answered “unknown” when she filed her answers on March 11, 2014.) (E-125) Immediately upon commencement of the April 18, 2014 hearing, the Court was made aware that both parties had filed pleadings stating the issue before the Court had become moot and that both parties sought dismissal. (E-181-194) Evidence was presented that showed John applied to the school of his choice on December 6, 2014, thus rendering the issue moot, (E-186) Despite both parties having declared the only issue before the Court to be moot, the trial judge allowed Ms. Chamberlain to withdraw her Motion for Voluntary Dismissal and proceeded with the hearing. The transcript leaves no doubt the trial judge was aware the issue was moot, that Ms. Chamberlain’s counsel did not refute the issue was moot, and that the there was no live controversy before the Court. (E-181-194) The dialogue in the transcript is critical as much for what was said, as for what was not said. Mr. Chamberlain’s counsel could not have been more clear that formal pleadings were filed with the Court by both parties declaring the issue before the Court to be moot. Ms. Chamberlain’s counsel clearly states to the trial judge that “we made a ‘motion to dismiss this thing for now for moot...” (E-193) And despite the trial judge stating that there had not been a legal determination the issue was moot, all the evidence 16presented to him both in formal pleadings and in argument before him at the commencement of the hearing eliminated all doubt the only issue before the Court was ‘moot. With no authority to investigate the matter on his own (Md. Rule 16-813 Rule 2.9 (©) (App-3), and both parties having declared the issue to be moot and having sought dismissal prior to trial, the facts are clear and the conclusion incontrovertible: the issue was moot. It had been declared moot by both parties, evidence showed it to be moot, and no evidence was presented to the trial judge to refute those facts. The trial judge proceeded to hear a case in the face of substantial evidence there was no live controversy for which the Court could grant relief. If the trial judge believed the question of mootness was unresolved, and that a legal determination was necessary despite both parties having declared the issue moot and having sought dismissal, he had a duty to make that determination prior to conducting the hearing. By law, whenever it appears that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. (Md, Rule 2-324(b))(emphasis added) (App-1). Furthermore, the law is clear that the court may grant a declaratory judgment in a civil case if it will serve to terminate the uncertainty or controversy giving rise to the proceedings, and if. an actual controversy exists between the contending parties. (emphasis added) (Md. Courts and Judicial Proceedings § 3-409(a)(1)) (App-5). “If the issue raised in a declaratory judgment action is not justiciable because it has become moot, is purely abstract, or will not serve a useful Purpose or terminate a controversy if resolved, the complaint should be dismissed.” See Post v. Bregman, 349 Md. 142, 159 (1998). Mr. Chamberlain concedes this case originally fell within the scope of the Circuit Court’s subject matter jurisdiction, Subsequently holding a hearing in the face of incontrovertible evidence the issue had become moot could not be classified as an error in the exercise of jurisdiction. Once the issue became moot, and was no longer justiciable, it no longer fell within a class of cases the Maryland Constitution authorized the Circuit Court to adjudicate. It is well settled that “the existence of a justiciable controversy is an 7absolute prerequisite to the maintenance of a declaratory judgment action.” Boyds Civic Ass'n v. Montgomery County Council, 309 Md. 683, 689 (1987) (quoting Hatt ¥, Anderson, 297 Md. 42, 45 (1983)). The Court of Appeals was unequivocal in Tshiwala v: State, 424 Md. 612 (2012), when it stated “Judge Diggs for this Court set out the definition of subject matter jurisdiction which has repeatedly guided this Court: If by that law which defines the authority of the court, a judicial body is given the power to render judgment over that class of cases within which a particular one falls, then its action cannot be assailed for want of subject matter jurisdiction.” First Federated Trust Corp. v. Commissioner, 272 Mid. 329 A.2d 335 (1974). By law, the authority of the Circuit Court’s fundamental and general jurisdiction does not extend to trying moot cases, therefore it lacked the subject matter jurisdiction to proceed with the hearing. Judgments are void as a matter of law in various circumstances. One of those circumstances is when an order emanates from a hearing conducted without jurisdiction over the subject matter. A court's judgment may be deemed void for lack of subject ‘matter jurisdiction only if the case does not fall within a class of cases in which that court was authorized to act upon. See First Federated Trust Corp. v. Commissioner, 272 Md. 329, 334, 322 A.2d 539, 543 (1974). “If a court acts without jurisdiction its action is a nullity...” Graham v. Graham, 190 Md. 434, 444 (1948). The Court of Appeals stated in Cook v. Alexandria National Bank, 263 Md. 147, 151-52 (1971) that Maryland law is in total accord with [other] authorities which have held that: Although it is not necessary to take any steps to have a void judgment reversed or vacated, itis open to attack or impeachment in any proceeding, direct or collateral, and at any time or place, at least where the invalidity appears on the face of the record. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose. In Fooks 18Executors v. Ghinger, 172 Md. 612, 192 4.782 (1937), Judge T. Scott Offit gave a thorough discussion of equitable jurisdiction and said in part: “Jurisdiction of the subject-matter means not simply the particular case to which the attention of the court is directed, but the class of cases to which it belongs, and over which the authority of the court extends....as stated in Freeman on Judgments, sec. 337, p. 676: ‘Courts of equity exercise a well defined jurisdiction over certain classes of matters; a jurisdiction largely inherent in the court although sometimes enlarged or curtailed by statutes, its inherent or statutory powers would result in a void decree rendered ‘without jurisdiction of the subject matter...” (underline added) This case fell within a class of cases the Circuit Court had no jurisdiction to adjudicate: moot cases. The June 5, 2014 Order emanated from an oral agreement Mr. Chamberlain was forced to make under duress during this hearing. As such, the Order is void by law. Il. Is the oral agreement made on the record on April 18, 2014 voidable due to duress, undue influence, the lack of essential terms, and modification by the trial judge? The record, if reviewed, will clearly show the cost, time and effort to defend against the vexatious litigation, combined with the judicial errors and judicial overreach on April 18, 2014, created the duress necessary to coerce Mr. Chamberlain into making an oral agreement on the record. The judicial actions constituted an improper threat and make the contract voidable. (Restatement (Second) of Contract § 176) (App-7) In addition, the lack of consideration, lack of essential terms, and modification of terms by the trial judge also makes the contract voidable and unenforceable. Duress can be found when an assent to a contract is due to an improper threat which leaves the victim no reasonable alternative other than to execute the agreement. Contracts formed in this manner are voidable when the opposing party to the transaction 19caused, or was privy to, the victim’s duress, (Restatement (Second) of Contracts § 175), (App-6) Maryland courts have implicitly recognized this common form of duress in a number of opinions. See Food Fair Stores, Inc. v. Joy, 283 Md. 205, 216-18 (1978); Meredith v. Talbot County, 80 Md. App. 174, 183 (1989); Eckstein v. Eckstein, 38 Md. App. 506, 512 (1978); Saggese v: Saggese, 15 Md. App. 378, 388 (1972). Furthermore, “if a party’s assent has been induced by the undue influence of a third person rather than that of the other party to the contract, the contract is nevertheless voidable by the victim....” (Restatement (Second) of Contracts § 177). (App-8) In order to establish duress there must be a wrongful act which deprives a person of the exercise of his free will. See Central Bank v. Copeland, 18 Md. 305 (1862); Williston on Contracts, $1606-1607 (3rd ed., W, Jaeger ed. 1970). (App-8-9) Even if a particular act is legal, if it is wrongful in the moral sense a number of authorities have held that it can be used to establish a claim of duress. Fowler v. Mumford, 48 Del. 282, 102.A.2d 535 (1954); Kaplan v. Kaplan, 25 Ill.2d 181,182 N.E.2d 706 (1962); Hochman x. Zigler’, Incorporated, 139 N.J. Eq. 139, 50 A.2d 97 (1946). “The determination of duress is dependent upon the circumstances of each individual case.” Eckstein v. Eckstein, 38 Md. App. 514 (1978). The Court's inquiry must be focused on the state of mind and the totality of the circumstances surrounding the party who pleads duress; not whether another individual, after the fact, believes they would have acted differently under the same circumstances or would not have succumbed to the same pressures. Nor can each act, failure to act, or pressure exerted upon a party be viewed individually. Duress will fail, as a defense, if the circumstances are viewed in isolation, just as a person will die from a thousand cuts though each cut by itself would create little harm. Therefore it is imperative to view the totality of the circumstances in this case, in context with the party’s previous legal experiences, to properly determine that duress was present in this case and caused Mr. Chamberlain to place the oral agreement on the record,A thorough review of the initial agreement and the previous litigation between the parties is necessary to paint the backdrop upon which the judicial errors and judicial overreach of April 18, 2014 must be viewed. The initial Marital Settlement Agreement was extraordinarily benevolent in that it provided for permanent alimony (into perpetuity), above-the-guidelines child support, continued contractual support for the children until the last was graduating from college in 2018, auto insurance premiums, health insurance coverage, three college educations, and the assumption of all marital debt, among other things. (E-48-59) The review must also include at least a cursory look at the last round of litigation in 2010 - 2011 between the parties, That case focused on two written documents provided to an underwriter in an effort to help Ms. Chamberlain qualify for a mortgage and the verbal agreements made by Ms. Chamberlain to obtain these documents. The result of that litigation was a Consent Order which obligated Mr. Chamberlain to pay over $48,000 in combined legal fees, assume an additional $25,000 in student loan debt his two daughters had been responsible for, and assume the entire 365,000 loss when the marital home was sold, a debt which previously was to be divided equally between the parties. (E-108-110) It is on this foundation that the legal action initiated by Ms. Chamberlain in September of 2013 took place. Mr. Chamberlain agreed to pay for his son to attend Auburn University, one of two schools his son had desired to attend. (E-90) On September 19, 2014, Ms. Chamberlain filed a Complaint to Enforce Marital Settlement Agreement and Consent Order of August 31, 2011, and for Declaratory Judgment in an effort to force Mr. Chamberlain to give his son permission to apply to Virginia Tech. (E-22) On it’s face, this was another frivolous lawsuit intended to coerce Mr. Chamberlain into providing more than the existing contract required. The pleading did not identify a single breach of contract for the Court to enforce, and the only substantive request was for the Court to re-write a single, clear and unambiguous sentence in the college education provision of the Marital Settlement atAgreement. Again, Mr Chamberlain’s son asked for permission to apply to Auburn University and Mr. Chamberlain agreed, Mr. Chamberlain filed an Answer and asked for the suit to be dismissed. (E-27) What followed was no fewer than 27 replies, responses, oppositions, hearings, requests, ete, which forced Mr. Chamberlain to spend over $32,000 in legal fees and hundreds of hours of time to defend against. (E-10-21) A review of the pleadings will show Mr. Chamberlain provided a wealth of legal reasoning supported by case law in support of his contentions the lawsuit was meritless, and that Ms, Chamberlain's pleadings were nearly devoid of evidence, legal argument nor supported by case law. Mr. Chamberlain had no option but to fight this action as he had no ability to pay the additional $100,000 it would cost for his son to attend Virginia Tech. When it became apparent that Mr. Chamberlain would not “cooperate in any meaningful way”, ie., give in to Ms. Chamberlain's demands, she sought a subpoena to obtain the personnel and financial records from Mr. Chamberlain’s employer in an effort to increase the duress on him. (E-34) These records were wholly irrelevant to the declaratory judgment before the Court. Despite this, Mr. Chamberlain’s Motion to Quash was denied and Ms, Chamberlain obtained the information. (E-31, E-13) Despite having access to Mr. Chamberlain’s financial information showing there was no material change to his income, Ms. Chamberlain filed a motion for upward ‘modification of child support for the parties* adult son. (E-104) John had tured 18 years old three months earlier and was an adult according to Maryland law. Until John graduated from high school Mr, Chamberlain was maintaining the $2,000 per month child support payments. Immediately after John graduated from high school, Mr. Chamberlain was contractually obligated to provide $1,500 per month in support for his son until his expected graduation date from college in 2018. (E-108-110) Despite Ms. Chamberlain having no legal basis for this action, Mr. Chamberlain was unable to obtain relief from the Court. The Court bifurcated the college support action from the modification forchild support action, requiring Mr. Chamberlain to expend even more financial resoure to defend against this second frivolous suit. (E-15) As the April 18, 2014 hearing approached, the duress was reaching its apex. Mr. Chamberlain had little credit available to continue to pay his attorney, there were now two lawsuits being maintained against him without legal merit, and his three children aligned themselves with their mother and refused to communicate with him. All this the result of Mr, Chamberlain agteeing to pay for one of the two colleges his son asked to attend. ‘The week prior to the hearing, Ms. Chamberlain's counsel sought a mutually agreed upon dismissal (E-193) Mr. Chamberlain was willing to allow dismissal, but only if his legal fees were reimbursed. When Ms. Chamberlain refused, not even willing to consider reducing permanent alimony from $5,000 per month to $4,700 per month over a period of 8 years to recover some, but not all, of the legal fees he had paid, Mr. Chamberlain made final preparations for defending himself at the hearing. Four days before trial, and 207 days after initiating the action, Ms. Chamberlain filed a Motion for Voluntary Dismissal. (E-112) This motion declared the only issue before the Court was moot, On April 17, 2014, Mr. Chamberlain filed his Answer, concurring that the only issue was moot, but requested legal fees be reimbursed as the evidence showed the issue had been moot for over 4 months. (E-29) Both Mr. Chamberlain and his counsel approached the following day with the understanding there would be no hearing except to make a determination on fees, On April 17, 2014, the day before the hearing, and after the judge was randomly assigned, Mr. Chamberlain's counsel also verbalized in a phone conversation, witnessed by a third party, that there would be no fees awarded because the judge assigned to the case had a long standing, personal bias against him. As the hearing commenced on April 18, 2014, numerous judicial errors took place which cemented this bias in Mr. Chamberlain's mind. 23First, the trial judge was made aware of the formal pleadings, verbally advised that both parties had declared the issue moot and had requested dismissal in writing. The trial Judge was also provided evidence that the only issue before the court was indeed moot The trial judge disregarded the evidence before him, acknowledged the issue of ‘mootness, but rather than dismissing the case in accordance with Maryland law (Md. Rule 2-324(b)) (App-1), he proceeded to hold a hearing in the face of clear evidence he had no authority to do so. Then, the trial judge ered when he failed to join the third party beneficiary of the contract as a party to the case as required by Md. Courts and Judicial Proceedings § 3-405(a)(1) (App-4). This rule was read to him twice by Mr. Chamberlain's counsel Opposing counsel concurred. (E-201) And it was read by the trial judge himself from the bench. (E-201) Even after Mr. Chamberlain’s counsel explained the intent of the rule, and that failure to join the beneficiary to the contract as a party to the case would expose his client to future litigation over the same matter, the trial judge denied the request. (E-211) Having been subjected to three frivolous lawsuits in 4 years, the threat and fear of being exposed to a future lawsuit over the same matter was tangible. The trial judge had acknowledged earlier he was “hearing all of this in a vacuum,” (E-186) and when made aware this was a hearing for a declaratory judgment on a sentence in a contract, made it clear he understood the hearing was for the purpose of interpreting a contractual prevision when he stated “ I've got to make a decision at some point on what the agreement says.” (E-188) On it’s face, the contractual sentence is clear and unambiguous. Ms. Chamberlain had explicitly stated in her own pleading that she understood all three parties must agree on the selection of the school. (E-23) Yet before ‘making any determination that the contract language was clear and unambiguous, or that it was ambiguous and would require further investigation, the trial judge directed that testimony be taken and allowed parol evidence into the hearing against one of the most basic cannons of contact interpretation: until it is determined that language is unclear or 24ambiguous, interpretation of a contract must stay within the four comers of the contract. ‘See Cochrane v. Norkunas, 398 Md. 1, 16, 919 A.2d 700, 709-10 (2007); Fister v. Allstate Life Ins. Co., 336 Md. 201, 210, 783 A.2d 194, 199 (2001); Walton v. Mariner Health, 391 Md. 643, 660, 894 A.2d 584, $94 (2006); Deleon Enterprises, Inc. v. Zaino, 92 Md. App 399 (1992). It is settled law in Maryland that “questions regarding the contract must be resolved first by looking at the particular language at issue.” Pumphrey v. Pumphrey, 11 Ma. App. 287, 273 A.2d 637,639 (1971). After Ms. Chamberlain's counsel had conducted his direct examination of her, Mr, Chamberlain’s counsel began to dismember her testimony during cross-examination. While in the process of disproving the majority of what Ms. Chamberlain had stated under oath (E-236-259), the trial judge abruptly suspended the hearing and stated: “I tell you what, I think I've heard a lot right now. I want to see counsel in chambers. Maybe we can save a little time.” ( E-259) Having been Mr. Chamberlain's most aggressive advocate for the previous 7 months, afier hours of fighting on his client’s behalf as the hearing commenced, and prior to presenting any evidence in his client’s defense, Mr. Chamberlain's attomey emerged from this in chambers council and emphatically stated that he must settle. He stated “the judge believes the language is unenforceable” and that he would still “rule based on who he believed.” After waiting for 7 months and spending over $32,000 attempting to defend himself, Mr. Chamberlain remained steadfast in his desire to present his defense. When his attorney flatly refused to create the record necessary during direct examination which was needed to form a record for appellate review, Mr. Chamberlain finally succumbed to the totality of the duress of the situation. To recap the situation Mr. Chamberlain faced on April 18, 2014: + His financial situation had become perilous after enduring the 2010-2011 litigation and assuming an additional $138,000 in debt or obligation to end that litigation. + He had endured 7 months of litigation over a meritless lawsuit 25+ He was forced to use more than $32,000 in credit to file a plethora of legally sound, fully supported pleadings seeking relief, none of which were granted, + He witnessed the majority, if not all, of Ms. Chamberlain’s pleadings be accepted by the Court despite being devoid of legal merit ot citations + He witnessed the Court authorize the seizure of his personnel and financial records from his employer when wholly irrelevant to the declaratory judgment matter. + He was forced to contend with a second vexatious lawsuit asking the Court to modify child support for an adult. + He watched Ms. Chamberlain successfully employ the art of parent alienation, causing his three children to cease all communication with him. + He was forced to participate in a hearing which the Court clearly had no subject ‘matter jurisdiction over as both parties had declared the issue moot. + He was exposed to future litigation over the same matter when the trial judge failed to follow Maryland law and refused to join the beneficiary to the contract as a party. + He was not afforded an opportunity to make an opening statement, nor provide a defense prior to the hearing being suspended. + He witnessed the judge disregard a common contract interpretation canon by taking parol evidence before even discussing the contract language in dispute, much less making a determination as to its clarity. + He faced serious judicial bias and overreach after the trial judge declared he will enforce an unenforceable contract, and his determination will not be about the contract language but based on “who he believed.” + He was faced with his own attorney abandoning his defense and refusing to ask questions during direct examination in order to create a record which would allow for a successful appellate review. Mr. Chamberlain believed his liberty was at stake. The history of the case had demonstrated that no statutory or common law, supported by any amount of legal reasoning, based on settled opinions published by Maryland appellate courts, would result in relief being granted by the Circuit Court. He stood by while a judge consciously decided to proceed with a hearing without any authority to do so, He was fully cognizant he would be exposed to a future lawsuit over the same matter because the judge failed to comply with Maryland law. No evidence was presented or argument entertained concerning the contract language the judge was to make a declaratory judgment on before 26the hearing was tainted with parol evidence. He understood the judge could do whatever he wanted if he was willing to tell his counsel that he was going to enforce an unenforceable contract. He was cognizant that the judge had determined the contract was unenforceable prior to hearing even a scintilla of evidence on the language. He believed it was likely there was much more than judicial overreach that took place within the in chambers conference for his highly respected attomey to completely and suddenly abandon his defense without cause. Based on the totality of the circumstances, Mr. Chamberlain was convinced the trial judge had pre-determined his ruling and would order him to pay for his son to attend Virginia Tech. Extensive discovery documents produced for the Plaintiff provide evidence it would be financially impossible for Mr. Chamberlain to comply with that ruling, but given what he had just witnessed, he had no doubt an “impossibility of performance” defense would have been summarily dismissed and he would be incarcerated for failing to comply with the order. His attention was focused on his attorney's admonition that he would have to live with whatever ruling the judge made until it was overturned on appeal. Understanding that process could take 1-2 years, and having a wife and 3 year old at home in Colorado, he could not yield his liberty awaiting justice from the appellate court. Thus he was coerced into making the oral agreement on the record under duress. Mr. Chamberlain believed he had no legal remedy available to avoid incarceration should the trial judge Order him to pay for Virginia Tech, which was a financial impossibility. The lack of a viable legal remedy to avoid incarceration created significant duress on Mr.Chamberlain, The circumstances which created the level of duress which caused Mr. Chamberlain to succumb were insidious at first, but became clear and palpable. Its depth can only be measured by reviewing the pleadings by both parties. Its effect was emotional, physiological, and economic, and occurred over a 4 year period. ‘The duressculminated with the clear judicial errors, judicial overreach, and the abandonment of his defense by his counsel on April 18, 2014. Mr. Chamberlain was in full compliance with every contractual obligation he made, yet he was sued for enforcement. He agreed to pay for a school his son asked him to pay for, and was sued in an effort to coerce him to pay an extra $100,000 for a school he could not afford. He withstood 7 months of purely vexatious litigation and was denied all relief from the judicial system for this clear abuse of the legal process. Instead, he was faced with serious violations of his due process rights, the apparent disregard for the application of clear law, the clear disregard for procedure when hearing a contract case, and serious judicial bias and overreach. One of the most clear indications that duress is present in the formation of a contract is to see if proper consideration was given, “It is fundamental that in order for a contract to be binding it must be supported by consideration.” Beall v. Beall, 291 Md. 224, 229, 434 A.2d 1015,1018 (1981). In this case, Mr. Chamberlain received absolutely no consideration in the agreement. Forbearance to assert a claim which proves to be invalid is not consideration. (Restatement (Second) of Contracts, § 74) (App-6). No reasonable person could believe the withdrawal of a vexatious lawsuit seeking an upward modification of child support for an adult could be valid “consideration.” Another important aspect of corroborating duress is how rapidly the assent was given after the threat and how timely the claim of duress was made to the agreement, The record corroborates that Mr. Chamberlain succumbed to the duress while immediately under the dominion of the trial judge; while standing face to face with an officer of the Court who had overtly demonstrated he would act in a manner inconsistent with the due process guarantees Mr. Chamberlain was entitled to. After he was not under the direct control of the trial judge, Mr. Chamberlain’s only delay in identifying to the Court that the oral agreement on April 18, 2014 was made under duress was due to Ms. Chamberlain’s counsel opposing the Motion to Strike his attomney’s appearance. Within days after being recognized by the Court to proceed pro se, Mr. Chamberlain filed hisMotion for Declaration of Mistrial which unequivocally expressed his rejection of the agreement, provided clear evidence in support of his request for a mistrial, identified he had been under duress when he made the oral agreement, and sought an expedited hearing where he would be afforded his due process rights to present a defense. ‘The voir dire of Mr. Chamberlain also indicates duress. The audio recording of the hearing shows a two second delay prior to answering whether he felt the terms were fair and his tone is unmistakably distressed. (See audio clip) He also never stated he was agreeing of his free will, Only when Mr. Chamberlain read the transcript of the hearing did he realize the trial judge himself had stated: “He's entering into the consent order freely and voluntarily and after being properly advised of his rights.” (E-268) The circumstantial evidence supporting Mr. Chamberlain's desire to have this case heard on the merits and not seeking a settlement is overwhelming: He utilized every judicial avenue available to defeat the vexatious litigation including: Requesting Dismissal (E-29) Seeking summary judgment (E-38) Requesting a revisal of a denial of summary judgment (E-96) Refusing settlement before the hearing (E-193) Secking dismissal and fees before the hearing (E-115) Seeking dismissal at the commencement of the hearing (E-181-194). Mr. Chamberlain was prepared to offer substantial case law in support of his defense, and desired to faced a party in Court whose pleadings had been virtually devoid of legal reasoning and legal support over the previous 7 months; a party who sought relief from having to present their case, and when it was not voluntarily given by Mr. Chamberlain, sought relief from the Court asking for a dismissal. Before having the first opportunity to present his defense, and during a withering cross-examination of Ms. Chamberlain, the hearing was abruptly halted for an in chambers conference. After the in chambers discussion, the last line of defense had been broken: his attorney revealed that 29the judge would enforce what he considered to be an unenforceable contract, make that decision subjectively and without regard to the law or evidence presented, and his attorney refused to advocate for him if he did not settle. In addition to the undue influence brought to bear on April 18, 2014, the oral agreement on the record was a general agreement, missing essential terms and was later modified by the trial judge, both which make the oral agreement voidable and unenforceable, Even the judge asked twice if the two sides were “close enough.” (F-265, E-266) These omissions and modifications are readily apparent in the record. Some examples include: + The Consent Order mandates a first year obligation of $14,000 which is in direct conflict with the terms of the oral agreement + The Consent Order modified the terms of payment stipulated in the oral agreement + The Consent Order omitted the word “consecutive” when describing the terms of payment and changed the wording to “four school years,” materially altering the terms + The Consent Order omits “grants” as part of the equation regarding the calculation of Mr. Chamberlain’s obligation + The Consent Order changes the definitive requirement for Ms. Chamberlain’s contribution as required by previous contract to a vague requirement, allowing her to be relieved of this obligation In conclusion, the evidence presented here, in combination with the evidence provided in Mr. Chamberlain’s Motion for Declaration of Mistrial (B-129), Response and Opposition to Plaintiff's Motion to Dismiss Defendant’s Request for Declaration of Mistrial (E-150), and his Motion to Dismiss (E-166) far surpasses a preponderance of evidence standard, and easily overcomes a clear and convincing lence standard in proving duress. Mr. Chamberlain respectfully submits that the e lence substantiates his claim of duress beyond a reasonable doubt. Furthermore, the oral agreement, and the Consent Order of June 5, 2014, are voidable by law having been created under duress, in addition to being voidable based on a lack of essential terms and the agreement having been modified by the trial judge. 30There can be no greater duress than when it becomes evident that power will overwhelm truth. Than when a litigation strategy to create duress sufficient to compel the other party to give in to their demands is allowed to be employed with impunity. And when the rule of law does not just appear arbitrary, but is disregarded in such a way that one believes he is before a biased and unfair tribunal. Il. Was it an abuse of diseretion for the trial judge to sign a Consent Order 3 weeks after he was aware one party had claimed duress and did not give his assent to the agreement? On April 18, 2014, while under duress, Mr. Chamberlain placed an oral agreement on the record. Mr. Chamberlain’s counsel was part of this duress. Afier the in chambers discussion, his counsel focused Mr. Chamberlain’s attention on the tangible lack of due process over the course of 7 months and during the trial, the judges direct comments that he had determined the language to be unenforceable though he had heard no evidence, and his belief that yielding under these circumstances made sense. For this reason, he initially would not agree to strike his appearance, His attorney believed Ms. Chamberlain's counsel would work in good faith to draft an agreement which would be, in his mind, ultimately beneficial to Mr. Chamberlain. Only after he reviewed Ms. Chamberlain's draft did he realize there was no hope of resolution and agreed to file a Motion to Strike Appearance. On April 28, 2014, Ms. Chamberlain was informed by Mr. Chamberlain that he and his attorney had mutually agreed (o strike his counsel's appearance for financial reasons and would represent himself. Ms. Chamberlain immediately sent a unilaterally Grafted Consent Order to the trial judge and encouraged him to sign it that same day. (E-149) The very next day, Ms. Chamberlain file her opposition to Mr. Chamberlain’s Motion to Strike Appearance. (E-18) Without compensation, Mr. Chamberlain’s attomey ‘was idle and Mr. Chamberlain had yet to be recognized by the Court. This created a legal 31vacuum whereby she could unilaterally press the Court for an immediate endorsement of her draft. In addition to seeking a signature directly from the trial judge, Ms. Chamberlain asked the Court to deny the Motion to Strike, but in the alternative, “grant the Defendant's counsel’s request that their appearance be stricken contemporaneous with " n f ‘the Honorable Paul E. Harris, Jz, on April 28, 2014,” (underline added) The record could not be more clear that once the oral agreement was coerced from Mr. Chamberlain on April 18, 2014, and it became known that he intended to seek relief from it, Ms. Chamberlain did all she could to encourage the Court to quickly sign the Consent Order she had drafted. Despite there being no legal justification for Ms. Chamberlain's opposition, the Court order striking the appearance of Mr. Chamberlain's counsel was finally granted and entered on May 13, 2014. (B-18) Mr. Chamberlain immediately filed a Motion for Declaration of Mistrial and Request for Expedited Merits Hearing. This motion clearly outlined the duress which led to the oral agreement on April 18, 2014. Mr. Chamberlain could not have been more explicit in his lack of assent to the proposed agreement in this motion: “The evidence of procedural error which prejudiced the Defendant thereby denying him the right to a fair trial, and the judicial overreach on the part of the trial judge in his wamings of how he would rule if the trial continued clearly indicate a manifest necessity for declaring a mistrial and re-hearing the case. The hearing on April 18, 2014 was infected with structural errors, which affected ‘the framework within which the trial proceeded. Such errors affect the entire trial Process itself, affecting the conduct of the trial from beginning to end, and necessarily render a trial fundamentally unfair.” ! (E-138) “To date, the Defendant has incurred over $34,000.00 in legal fees and has invested hundreds of hours of preparation in defending himself against a meritless ' Quote from Redman v. State, 363 Md. 298, 303 n. 5, 768 A.2d 656, 659 n. 5 (2001) 92lawsuit, only to have his right to due process by law, and a fair trial, denied through numerous procedural errors and judicial overreach which created enough duress to force a settlement against his wishes.” (E-139) In Smith v, Luber, 165 Md. App 458, 885, A.2d 894 (2005), the court opined that they were “called upon to reiterate the oft-stated essence and character of a consent decree; that, despite the imprimatur conveyed by the endorsement affixed to the decree by the court, it derives its legal efficacy from the consent of the parties.” In Smith, the parties had reached an oral agreement in court, but one party balked at signing the agreement once reduced to writing, claiming the written agreement did not accurately reflect the oral agreement. The trial court modified the terms and signed the Consent Order. The appellate court overturned that ruling. In the present case, Mr. Chamberlain would not sign a written agreement because he made clear the oral agreement was not made voluntarily but the product of duress. Even if the Court was to believe, for arguments sake, that Mr. Chamberlain did voluntarily desire to settle the matter by ‘making an oral agreement, the evidence is overwhelming that he did not give his consent to the agreement nearly three weeks before the trial judge signed his Order. This withdrawal of consent was directly addressed in the Dorsey Court: “In the case at bar, even though the appellant orally agreed to a settlement agreement, it is obvious that he withdrew that consent before the final meeting with the trial judge. It is also apparent that both the trial judge and the appellees had full knowledge that the appellant was not consenting to the decree two days before it was signed. We find that the trial judge abused his discretion under Maryland Rule 625(a) by denying the motion to set aside the unenrolled consent decree, where the court at the time of the entry of the decree knew that the appellant did not so consent.” Dorsey v. Wroten, 370 A.2d 577 (1977) - See also Ryan v. Johnson, 220 Md. 70, 150 A.2d 906 (1959) as to abuse of discretion. The Dorsey Court additionally stated: “Of course, it would be an abuse of discretion for the chancellor to state in the decree that it was being consented to when it was not.” In the present case, the trial judge stated in his June 5, 2014 Order that “...the 33parties reached an agreement resolving all issues in this action, which is memorialized below...” (B- 176) Knowing Mr. Chamberlain did not give his consent to the agreement, the trial judge abused his discretion by signing the Consent Order. Unlike Dorsey, where the lack of assent was determined 2 days prior to signature, the lack of assent in this case was identified in a formal pleading 18 days before the trial judge signed the Order. If the Motion for Declaration of Mistrial was insufficient to identify Mr. Chamberlain's lack of assent to any agreement, his Response and Opposition to Plaintiff's Motion to Dismiss Defendant’s Request for Declaration of Mistrial and Request for Scheduling Expedited Merits Hearing filed on May 28, 2014, a full week before the trial judge signed the Order, eliminated all doubt as to Mr. Chamberlain’s lack of assent. (E-129) This is not a case of “buyers remorse.” Mr. Chamberlain's refusal to assent to the Consent Order drafted by Ms. Chamberlain's counsel was not founded upon some unsubstantial excuse. Rather, Mr. Chamberlain identified numerous factual disputes including the Circuit Court's lack of jurisdiction to hear the case, due process violations during the hearing, and judicial bias and overreach in coercing the agreement. Once recognized by the Court, Mr. Chamberlain immediately filed a pleading identifying these issues and supporting his contentions with substantial case law. The only delay in the voicing of his dissent was caused by his attorney’s initial reluctance to withdraw and Ms. Chamberlain opposing the striking of Mr. Chamberlain’s counsel for the sole purpose of denying Mr. Chamberlain's opportunity to expose the truth of what had occurred. As soon as Mr. Chamberlain’s attomey was stricken, it is clear that Mr. Chamberlain immediately identified his lack of consent. The Court should note Mr. Chamberlain never stated on the record he gave his assent to the agreement of his own free will (E-267-268), immediately challenged the validity of the oral agreement (E-129), never signed a written agreement, and made a clear record 3 weeks before the trial judge signed the Order that he did not give his consent. (E-129) 34While the trial judge was likely not aware of Mr. Chamberlain's Motion to Dismiss filed on June 3, 2014, this Motion provides further evidence that Mr. Chamberlain was directly challenging the validity of the oral agreement and did not give his consent. This was filed two days prior to the trial judge signing the Order on June 5, 2014. Conclusion For the above reasons and authorities stated, the Appellant respectfully requests that the June 5, 2014 Order be declared void by law and vacated, the Modification for Child Support issue be remanded to the Circuit Court for a Merits Hearing, and the the ‘matter of attorney's fees be remanded to the Cireuit Court. Affidavit I do solemnly swear and affirm under the penalties of perjury that the matters and facts set forth in this ‘are true to the best of my knowledge, information and belief. Respectfully submitted, Stephen D. Chamberlain, Appellant STATEMENT PURSUANT TO MD. RULE 8-504 (a) (9) I hereby certify that the foregoing Brief was prepared with proportional type with 15 spacing and Times New Roman font size 13. Stephen D. Chamberlain, Appellant 35APPENDIX TEXT OF CITED STATUTES, RULES and ANNOTATIONS Md. Rule 2-324 PRESERVATION OF CERTAIN DEFENSES, (b) Subject matter jurisdiction. Whenever it appears that the court lacks ion of the subject matter, the court shall dismiss the action. Mad. Rule 2-506 VOLUNTARY DISMISSAL (a) By notice of dismissal or stipulation. Except as otherwise provided in these rules or by statute, a party who has filed a complaint, counterclaim, cross-claim, or third-party claim may dismiss all or part of the claim without leave of court by filing (1) a notice of dismissal at any time before the adverse party files an answer or (2) by filing a stipulation of dismissal signed by all parties to the claim being dismissed. (b) Dismissal Upon Stipulated Terms. If an action is settled upon written stipulated terms and dismissed, the action may be reopened at any time upon request of any party to the settlement to enforce the stipulated terms through the entry of judgment or other appropriate relief. (©) By order of court. Except as provided in section (a) of this Rule, a party who has filed a complaint, counterclaim, cross-claim, or third-party claim may dismiss the claim only by order of court and upon such terms and conditions as the court deems proper. If a counterclaim has been filed before the filing of a plaintifi’s motion for voluntary dismissal, the action shall not be dismissed over theobjection of the party who filed the counterclaim unless the counterclaim can remain pending for independent adjudication by the court. (d) Effect. Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim. (e) Costs. Unless otherwise provided by stipulation or order of court, the dismissing party is responsible for all costs of the action or the part dismissed. ‘Md. Rule 8-131 SCOPE OF REVIEW (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal (c) Action tried without a jury. 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 the witnesses. Cross references. -- Rule 2-519,Md. Rule 16-813 MARYLAND CODE OF JUDICIAL CONDUCT Rule 2.9 EX PARTE COMMUNICATIONS (c) A judge shall not investigate adjudicative facts in a matter independently, and shall consider only the evidence in the record and any facts that may properly be judicially noticed. Md. Rule 16-813 MARYLAND CODE OF JUDICIAL CONDUCT. Rule 2.11 Disqualification (a) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including the following circumstances: (2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person: (C) is a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (D) is likely to be a material witness in the proceeding, (3) The judge knows that he or she, individually of as a fiduciary, or any of the following persons has a significant financial interest in the subject matter in controversy or in a party to the proceeding: (©) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (a) (1), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether toMa. Courts and Judicial Proceedings § 1-501. Juri Ma. C waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding. [1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (a) (1) through (5) apply. In this Rule, "disqualification" has the same meaning as "recusal.” 2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed. tion and powers in general The circuit courts are the highest common-law and equity courts of record exercising original jurisdiction within the State. Each has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal. ourts and Judicial Proceedings § 3-405 Parties; Role of Attorney General (a) Person who has or claims interest as party. — (1) If declaratory relief is sought, a person who has or claims any interest which would be affected by the declaration, shall be made a party.Md.Courts and Judicial Proceedings § 3-409 DISCRETIONARY RELIEF (a) In general. -- Except as provided in subsection (d) of this section, a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: (1) An actual controversy exists between contending parties Md. Courts and Judicial Proceedings § 12-308. JURISDICTION of COURT of SPECIAL APPEALS Except as provided in § 12-307 of this subtitle, the Court of Special Appeals has exclusive initial appellate jurisdiction over any reviewable judgment, decree, order or other action of a circuit court, and an orphans’ court. U.S. CONSTITUTION SECTION III ARTICLE 2 The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority 0 all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party:--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states subjects In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, theSupreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. RESTATEMENT (SECOND) of CONTRACTS § 74 Settlement of Claims (1) Forbearance to assert or surrender of a claim or defense which proves to be invalid is not consideration unless (a) the claim or defense is in fact doubtful because of uncertainty as the the facts or the law, or (b) the forbearing or surrendering party believes that the claim or defense may be fairly determined to be valid. RESTATEMENT (SECOND) of CONTRACTS § 175 When Duress Makes a Contract Voidable (J) Ifa party’s manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim. (2) Ifa party’s manifestation of assent is induced by one who is not a party to the transaction, the contract is voidable by the victim unless the other party to the transaction in good faith and withoutreason to know of the duress either gives value or relies materially on the transaction. RESTATEMENT (SECOND) of CONTRACTS § 176 When A Threat Is Improper (1) A threat is improper if (a) what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property, (b) what is threatened is criminal prosecution, (c) what is threatened is the use of civil process and the threat is made in bad faith, (d) the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient. (2) A threat is improper if the resulting exchange is not on fair terms, and (a) the threatened act would harm the recipient and would not significantly benefit the party making the threat, (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or (©) what is threatened is otherwise a use of power for illegitimate ends.RESTATEMENT (SECOND) of CONTRACTS § 177 When Undue Influence Makes a Contract V lable (1) Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that the person will not act in a manner inconsistent with his welfare. (2) Ifa party’s manifestation of assent is induced by undue influence by the other party, the contract is voidable by the victim. (3) Ifa party’s manifestation of assent is induced by one who is not a party to the transaction, the contract is voidable by the victim unless the other party to the transaction in good faith and without reason to know of the undue influence either gives value or relies materially on the transaction. WILLISTON ON CONTRACTS § 1606 ‘Threats Need Not Be Such As To Affect A Brave Man The statements in the early books assert that in order to constitute duress by threats, the threats in question must be such as to put a brave man in fear. Later, the standard of courage was somewhat reduced, but it was said that duress must consist of something sufficient to overcome the will of a person of ordinary firmness, and the rule in this latter form with more or less qualification is frequently repeated in modern oases, though in many of the cases which repeat the formula, the question was not really involved. The tendency of the modern cases, and undoubtedly the correct rule is that any unlawful threats which do in fact overcome the will of the person threatened, and induce him to do an act whichhe would not otherwise have done, and which he was not bound to do, constitute duress. The age, sex, capacity, relation of the parties and all the attendant circumstances must be considered WILLISTON ON CONTRACTS § 1607 Abuse Of Lawful Means ‘Means in themselves lawful must not be so oppressively used as to amount to an abuse of legal remedies. Though attachment is in itself lawful, if an attachment is excessive, or of perishable property, or is made under circumstances which make it difficult for the defendant to avoid yielding to any demands the use of the attachment for the purpose of enforcing extortionate or collateral demands is abusive, and transactions coerced by such means are voidable. Under similar circumstances a threat to apply for a receiver of a corporation has been held duress of one who was interested financially therein and whose reputation would be injuriously affected by the application. Even a threat of ordinary litigation may be made under such circumstances as to render the threat wrongfial as a means of coercion, and the transaction induced thereby nas to be voidable. Thus, where one of the parties is in such a posi easily dominated by the other, or is old and weak-minded, a transaction induced by such a threat may be avoided. Where, however, ordinary legal procedure is used or threatened by one who believes he has a claim of the kind for which such procedure was provided, there must doubtless be some actual or threatened abuse of proce definition. What amounts to such an abuse is not susceptible of exactCertificate of Service 1 HEREBY CERTIFY that on this Z A day of Decemberr, 2014, two copies of the foregoing Appellant's Brief and Record Extract were sent vie FEDEX prepaid to Samuel J. Brown, Esquire, and Marietta B. Warren, Esquire, and Evelyn Spurgin, Esquire, 221 Duke of Gloucester Street, Annapolis MD, 21401, Attorneys for Plaintiff. Ser o4oa Stephen D. Chamberlain