INTHE COURT OF APPEALS OF MARYLAND No. Term STEPHEN D. CHAMBERLAIN Petitioner ¥ JUDITH C. CHAMBERLAIN Respondent APPEAL FROM THE CIRCUIT COURT OF ANNE ARUNDEL COUNTY (The Honorable Paul F, Harris, Jr., Presiding) PETITION FOR WRIT OF CERTIORARI STEPHEN D. CHAMBERLAIN Pro Se LitigantTABLE OF CONTENTS (TABLE OF AUTHORITIES 0000 eget i REASONS FOR GRANTING WRIT .... . eee 1 REQUIRED BACKGROUND «2.20 2 QUESTIONS PRESENTED . 3 I. Did the Court of Special Appeals err when it affirmed the Circuit Court had subject matter jurisdiction to hear this case? ... . . . 3 II. Did the Court of Special Appeals err in affirming the lower court’s dismissal of a Motion for Mistrial in the face of the fundamental and structural errors which pervaded the trial and were directly prejudicial to the Appellant's right to due process?. 6... 0... eee 3 TI. Did the Court of Special Appeals err when it determined the Appellant was not under duress during the voir dire process? .. . . . . 3 IV. Did the Court of Special Appeals err in affirming the validity of the June 5, 2014 Consent Order? .... . ee 3 ARGUMENT 2.00 eee ee 6 A. _ By affirming the Circuit Court had jurisdiction to hear this case, the Court of Special Appeals has failed to uphold decades of settled law... . . . .6 B. The Court of Special Appeals’ affirmation of the Circuit Court’s denial of the motion for mistrial overlooks incontrovertible errors of law... . .Barnes v, Barnes, 181 Md. 390, 408 (2008) Blum y. Blum, 59 Md. App. 584, 594, 477 A.2d 289 (1984) . pagaoods Boyds Civie Ass'n v. Montgomery County, 526 A. 2d 598, 609 (Md. 1987)... « Canaras v. Lift Truck Services, 272 Md. 337, 322 A.2d 866 (1974)... +++ + was not voidable for duress, lack of essential terms, or modification . . D. _ The Consent Order was not validly entered by the Circuit Court. . . ee oe ete ae eee ee ee abate eeeeeceecccee® CERTIFICATE OF SERVICE, APPENDIX JUNE 5, 2014 CONSENT ORDER... 2. +--+ + CIRCUIT COURT DOCKET. 6... eee COURT OF SPECIAL APPEALS OPINION... -- 2 ee ee EX PARTE LETTER AND CSA MISQUOTE . . - NO WAIVER CLAUSEINMSA . 2... 0022s APPELLANT’S BRIEF OF STEPHEN D. CHAMBERLAIN (filed in the Court of Special Appeals) . APPELLANT'S REPLY BRIEF (filed in the Court of Special Appeals) - . TABLE OF AUTHORITIES Cases Attorney Gen. v, A.A. County School Bus, 286 Md. 324, 327, 407 A2d 749, 752 (1979) 2 eee eee il “The Court of Special Appeals erred when it concluded the Consent Order llChernick v. Chernick, 327 Md. 470, 610 A.2d 770 (1992)... 0 eee eee 15 Coburn v. Coburn, 342 Md. 244, 250 (1996)... - Creel v. Lilly, 354 Md. 77, 101, 729 A.2d 385 (1998) . Dorsey v. Wroten, 370 A.2d 577 (1977). « Eckstein y. Eckstein, 38 Md. App. 514 (1978) « 12 First Federated Tr. v. Comm’r, 272 Md. 329, 334, 322 A.2d 539, 543 (1974)... - - - 7 Freeman v. Stanbern Const. Co., 205 Md. 71, 106 A.2d 50 (1954)... ee eee 14 Fooks’s Executors v. Ghinger, 172 Md. 612, 621, 192 A.782 (1937)... +--+ + a Hammond v. Lancaster, 194 Md. 71 A.2d 474 (1950). ee eee 6 Hatt v, Anderson, 297 Md. 42, 45 (1983). 0-0 ee 7 Human Resources v. Roth, 398 Md. 137, 143, 919 A.2d 1217, 1221 eee tcie 7 L.W, Wolfe Enters., Inc. v. Maryland Nat'l Golf, L.P., 165 Md.App. 339, 344, 885 A.2d 826 (2005). 2 ee tee ET 10) Mayor v. Shearwater Sailing, 265 Md. 280, 288 A.2d 887 (1972)... +--+ +++ 8 Montgomery County v. Revere Nat'l Corp., 341 Md. 366, 378, 671 A.2d 1, 7 (1996). .14 ‘Myers v. Kayhoe, 391 Md. 892 A.2d 520 (2006)... ++ 00s errr renee 14 Officers for Justice v. Serv. Comm'n of San Francisco, 688 F.2d 615, 630 (9th Cir. 1982) . . Post v. Bregman, 349 Md. 142, 159 (1998) Questar v, Pillar, 388 Md. 675, 686, 882 A.2d 288, 294 (2005) ©... -- s+ 14 Reyes v, Prince Georges County, 281 Md.279 (1977)... ve eevee rere ess 6 Saggese v. Saggese, 15 Md. App. 388, 290A.2d 794 (1972)... eevee ees 12 State v. McCray, 267 Md. 111, 297 A.2d 265 (1972)... 0 eevee eee 8 Stevenson v. Lanham, 127 Md. App. 597, 612 (1999) 02.20 e ee eee 7,9 United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Bd2d 256, 263 (1971). eee 14 Young v, Anne Arundel County, 146 Md. App. 526, 807 A.2d 651 (2002)... .... llStatutes & Rules Mad. Rule 2-324 (b) Ma. Rule 8-131 (¢) . Md. Rule 8-301 (a) (3) Md. Rule 16-813 Rule 2.6 (b) 3] [4]. 0 ee eee 15 Mad. Rule 16-813 Rule 2.9(C) 0.2.0 ee eee eee eee eee ee 1 Maryland Courts and Judicial Proceedings § 3-405 (a) (1). . . Maryland Courts and Judicial Proceedings § 3-409 (a) (1) . Maryland Courts and Judicial Proceedings § 12-203 . Other Sources Black's Law Dictionary 846 (7th ed.1999) . 6... eee 14 Williston, LAW OF CONTRACTS § 678 Gd ed.1961) .. 22... e ee eee 14REASONS FOR GRANTING THE WRIT This petition affects every Marylander. There could be no more important questions before this Court than those surrounding a citizen’s liberty interests and his due process right to stand before fair tribunals of law. When lower courts act in the clear absence of jurisdiction and, upon review, the unlawful use of that power is affirmed by the intermediate appellate court, the highest court in Maryland has a duty to review the serious allegations, provide the relief this case demands, and preserve the public’s faith and confidence in the fairness of the judicial system. The evidence in this case will demonstrate that both the Circuit Court and Court of Special Appeals did not interpret Maryland statutes in accordance with the settled law in this state, or, are not applying that settled law uniformly. Public perception that the law is applied correctly, and uniformly, is essential to a functioning democracy. This petition presents clear evidence of the need to again reiterate some of the most basic tenets of jurisprudence in the State of Maryland, namely, that Circuit Courts do not hear moot cases, that parties to li ation cannot confer jurisdiction on the Court nor can the Court confer jurisdiction on itself, that declaratory relief shall not be granted to determine future rights, that Maryland abides by the objective rule of contract interpretation, that questions of duress are determined based on the totality of circumstances of a case and not by singular moments in time, and that a citizen’s right to seek appellate review of a question of law or finding of fact cannot be disregarded when properly presented, Precedents set by this Court which are not followed by the lower court could be classified as errors. Affirmation of those errors by the Court of Special Appeals (CSA), in direct contravention to the precedents set by this Court, indicates those precedents need to be either reiterated for the lower courts, or changed. There could be no question more important to the public interest in this state than whether a court can unlawfully exert itspower over that citizen, and whether the settled laws of this state are applied uniformly in the adjudication of disputes. When errors of law are made in the lower Courts, appellate review affords the litigant an opportunity to have those errors reviewed and corrected. When the appellate court affirms those errors, what should have beeen the predictable application of settled law becomes unpredictable. That unpredictability encourages more and more litigants, and their attorneys, to use the judicial system as nothing more than a mechanism to apply financial, emotional and psychological duress to coerce settlements not obtained by other means, Failure to apply clear and settled law by the courts fuels the growing endemic of highly questionable lawsuits which undermines the public’s faith in the judicial system and continues to place an increasing strain on the already challenged judicial resources of this state. Itis in the interest of all Maryland citizens for this Court to deter this litigation tactic, thereby freeing up valuable court resources for the legitimate pursuit of justice. REQUIRED BACKGROUND Judith C, Chamberlain, Plaintiff, Respondent and Appellee, sought a declaratory judgment concerning a single, clear and unambiguous sentence in a college education provision in the parties’ Marital Settlement Agreement, (Chamberlain v. Chamberlain, Case # 02-C-09-139690) She maintained this litigation for 207 days before declaring the only issue before the Court to be moot and seeking voluntary dismissal. Mr. Chamberlain's response explicitly agreed the only issue was moot and also requested the case be dismissed. The following day, despite the presentation of unrefuted evidence the only issue before the Court had been moot for 4 months, the trial judge elected to proceed. After additional structural errors were made during the trial, Mr. Chamberlain was coerced into an oral agreement of general settlement terms on the record. Mr. Chamberlain immediately filed a motion requesting a mistrial, followed by a motion to dismiss based on a lack of subject matter jurisdiction. Weeks later, the trial judge deniedthe motion for mistrial, modified a draft proposal submitted by one party, and unilaterally signed it with full knowledge Mr. Chamberlain did not give his consent, (Consent Order dated June 5, 2014) (Apx. 1) This judgment of the circuit court adjudicated all claims in the a tion in their entirety, and the rights and liabilities of all parties to the action. (Apx. 2) A timely appeal of this judgment was filed with the CSA on June 20, 2014. (#719 September Term 2014) The CSA affirmed all decisions made by the lower court on April 21, 2015. (Apx. 3) This petition was timely filed in accordance with Md. Code Ann., Courts and Judicial Proceedings § 12-203 and Md. Rule 8-301(a)(3). QUESTIONS PRESENTED 1 Did the CSA err when it affirmed the Circuit Court had subject matter jurisdiction to hear this case? 2. Did the CSA err in affirming the lower court’s dismissal of a Motion for Mistrial in the face of the fundamental and structural errors which pervaded the trial and were directly prejudicial to the Appellant's right to due process? 3. Did the CSA err when it determined the Appellant was not under duress during the voir dire process? 4. Did the CSA err in affirming the validity of the June 5, 2014 Consent Order? STATEMENT OF FACTS, On September 19, 2013, Ms. Chamberlain filed a Complaint to Enforee Marital Settlement Agreement and Consent Order of August 31, 2011, and for Declaratory Judgment. This action was facially devoid of legal merit. Her pleading failed to identify a breach of any contractual term in either the Marital Settlement Agreement or a Consent Order from 2011. 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, Wiffe and the Child” to agree on schools prior to application:« 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.” ‘The pertinent sentence in the Marital Settlement Agreement could not be more clear and unambiguous. It 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 enrollment.” On April L4th, 2014, after 207 days of legal action and 4 days before she would be required to present her case, Ms. Chamberlain's attorney filed her Motion for Voluntary Dismissal and acknowledged the son had gone ahead and applied to the schools of his choice and that the only issue before the Court was moot: “Given that the relief requested in Plaintiff°s Complaint to Enforce is now 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.” ‘Mr. Chamberlain’s attorney filed his Response on April 17, 2014 and hand- delivered it to the trial judge’s chambers. The response explicitly agreed that the only controversy before the Court had become moot: “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 upon which the Plaintiff sought a declaratory judgment to be a ‘moot’ 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.” ‘At the commencement of the Merits Hearing the following day, the opening dialogue provides irrefutable evidence (a) the trial judge 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 (c) 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.‘The trial judge elected to proceed in the clear face of a lack of subject matter jurisdiction. The CSA affirmed this decision. ‘The trial judge subsequently denied a motion to join the third party beneficiary to the case as required by Courts and Judicial Proceedings § 3-405 (a) (1) even after both attorneys agreed it was proper. (See Pg. 23 of April 18, 2014 Transcript) This fundamental error exposed Mr. Chamberlain to future litigation by the third party beneficiary should he continue with the case and added to the duress already established Then, contrary to settled contract interpretation law, the trial judge directed parole evidence be by having to participate in a hearing for which there was no live controver taken prior to making a determination that the contract language in question was anything other than clear and unambiguous. This structural error affected the conduct of the trial itself by allowing the Appellee’s perjurious testimony to be heard which further prejudiced Mr. Chamberlain’s defense. ‘As Mr. Chamberlain’s venerable attorney began to dismember this false testimony, the trial judge abruptly halted the proceedings and directed the attorneys into his chambers for a conference. The record provides clear and overwhelming circumstantial evidence of judicial overreach during this in chambers discussion. (Mr. Chamberlain’s attomey developed a record of the strongest advocacy and unquestionable legal reasoning over the course of 7 months and throughout the hearing until his complete reversal upon ‘emerging from the in chambers conference.) Having concluded that clear and settled law would not be followed by the Circuit Court, and with his attorney abdicating his defense after hearing the judge’s remarks in chambers, Mr. Chamberlain was compelled to orally agree to general terms of a settlement agreement on the record. The final terms were required to be presented to the Court in writing within 10 days. Once no longer under the dominion of the trial judge and within 3 days of being recognized pro se by the Court, Mr, Chamberlain filed a Motion Requesting Declaration of Mistrial. Subsequently recognizing the Circuit Court lacked jurisdiction over the subject matter, he then filed aMotion to Dismiss the case. Three weeks later, the trial judge denied the motion requesting a mistrial, modified Ms. Chamberlain’s draft Consent Order by adding specific terms not contained in the general oral agreement, and unilaterally signed it as an Order of the Court. The CSA affirmed the lower courts denial of the motion for mistrial. It also determined the June 5 Consent Order was not voidable due to duress or for lack of consideration. The CSA affirmed it was a validly entered order despite being modified and signed unilaterally by the trial judge over the dissent of one party, and despite a contractual provision requiring not just that all modifications to provisions be made in writing, but that the waiver of this provision be made in writing and signed by the parties as well. The CSA did not address the question of the Order being voidable for lack of essential terms that was clearly raised on appeal. ARGUMENT A. By affirming the Circuit Court had jurisdiction to hear this case, the CSA has failed to uphold decades of settled law. As early as 1950, this Court stated that “courts will not decide moot or abstract questions.” (Hammond v, Lancaster, 194 Md. 71 A.2d 474 (1950)) The law prohibiting the deliberation and adjudication of moot cases was definitively settled by this Court nearly 40 years ago in Reyes v. Prince George s County, 281 Md. 279 (1977): “We begin by pointing out what is known to every student of our judicial process: that the American system of adjudication from its inception has been grounded on the principle that adversary presentation of issues actually in dispute between the parties to the suit plays a vital and essential role in attaining justice.” “A court has no right to make a determination in declaratory judgment cases in which no justiciable issue is presented.” “Today we definitely close the door left ajar in Lloyd and Meyers and hold, in accord with our actual past practice, that we are inhibited from rendering a decision in a moot case only by our own adherence to the settled rule which governs the deliberation and adjudications of courts generally, namely, that they do not sit to decided abstract questions of law.”An unbroken string of decisions since Reyes has reinforced this concept. (See Attorney Gen. v. A.A. County School Bus, 286 Md. 324, 327, 407 A.2d 749, 752 (1979); Hatt v. Anderson, 297 Md. 42, 45 (1983); Boyds Civic Ass'n v. Montgomery County, 526 A. 2d 598, 609 (Md. 1987); Coburn v. Coburn, 342 Md. 244, 250 (1996); Post v. Bregman, 349 Md. 142, 159 (1998); Stevenson v. Lanham, 127 Md. App. 597, 612 (1999); Human Resources v. Roth, 398 Md. 137, 143, 919 A.2d 1217, 1221 (2007)) Itis unrefuted that 4 days prior to trial Ms. Chamberlain declared in a formal motion that “the relief requested in Plaintiff's Complaint to Enforce is now moot. unrefuted that 1 day prior to trial Mr. Chamberlain declared in a formal motion that “John’s decision to file for admission to colleges before receiving the assent of his parents does render the issue upon which the Plaintiff sought a declaratory judgment to be a ‘moot’ issue...” And it is also unrefuted that 14 pages of the official transcript of the initial portion of the hearing unequivocally proved the sole issue before the Court remained moot and that no effort was made to introduce a “lingering outstanding ” as the CSA suggests. In fact, that “lingering controversy” was directly addressed by both attorneys at the time of the hearing as not being ripe. (See Pg. 14-15 of April 18, 2014 Transcript) Itis inarguable that the lower Court, and the CSA, are bound by the doctrine of stare decisis. There can be no more evidence an issue is moot than when both parties declare it to be so. The Court cannot conduct its own investigation into a matter. (Md. Rule 16-813 Rule 2.9 (c)) Moot cases are classes of cases which shall not be heard by Cireuit Courts. As such, the Circuit Court lacked fundamental jurisdiction over the matter, (See First Federated Com. Tr. v. Comm'r, 272 Mid. 329, 334, 322 A.2d 539, 543 (1974): Fooks' Executors v. Ghingher, 172 Md. 612, 621, 192. A. 782 (1937) Yet the CSA affirmed the Circuit Court had subject matter jurisdiction on the specious theory that ‘Ms. Chamberlain withdrew her Request for Voluntary Dismissal, thereby withdrawing her contention that the only issue before the Court was moot. While a party can withdrawa motion by leave of the Court, withdrawal does not change declared facts. The issue was solely about applications. It became moot when the son applied to the schools of his choice 4 months earlier. It was finally acknowledged to be moot 4 days before trial. Those facts are not changed by the withdrawal of a motion. Allowing a party to “un- moot” an issue by withdrawing a motion which explicitly stated that issue was moot is in direct contravention to the settled law that that a party cannot confer jurisdiction on a court. (State v. McCray, 267 Md. 111, 297 A.2d 265 (1972); Mayor v. Shearwater Sailing, 265 Md. 280, 288 A.2d 887 (1972)) On its face, in this case, the Appellee reversed course and asked the court to ignore the facts they themselves had just declared, without any justification for doing so, and only after the judge was assigned to the case. Furthermore, the CSA’s belief that “the circuit court determined there was a controversy upon which the court could provide an effective remedy” is not based on any part of the record and wrongly infers that the Court can confer jurisdiction on itself. The record before the CSA is devoid of any evidence the Circuit Court made a determination that there was a live controversy before it. The record clearly shows the Judge understood the jurisdictional challenge being raised and acknowledged that “there’s not been a legal determination as to whether it’s moot or not.” The trial judge then refrained from making that determination prior to continuing with the hearing and in the face of incontrovertible evidence there was no live controversy before him. The CSA implausibly suggests that somehow an issue of payment for college was “a lingering outstanding controversy.” Only the litigants can bring a controversy before the Court for resolution; a controversy cannot be introduced by the Court. It is also incontrovertible that the controversy brought before the Court, and then declared to be moot, was limited to the question of where college applications could be sent. For arguments sake, even if the CSA’s erroneous presumption that the Circuit Court had considered the payment of college expenses to be a “lingering outstanding controversy,” that “controversy” was clearly not ripe. ‘The son had not yet begun toattend college and no college expenses were due. Both parties clearly stated on the record that the issue of payment for college had yet to mature. The Stevenson Court could not have been more clear or unambiguous when it stated that declaratory judgments will not be rendered to declare future rights: “A controversy. may not be justiciable because it is not ripe or because it has become moot, Under the ripeness doctrine as applied to actions for declaratory relief, a case ordinarily is not ripe if it involves a request that the court declare the rights of parties upon a state of facts which has not yet arisen or upon a matter which is future, contingent and uncertain.” (Stevenson v. Lanham, 127 Md. App. 597, 612 (1999)) 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)) 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. (Md. Courts and Judicial Proceedings § 3-409(a) (1)) (underline added) ‘The CSA’s affirmation of the Circuit Court’s decision to proceed with a hearing when the only issue brought before the Court had been declared moot by both parties, and proven to be moot by a highly capable attorney at the commencement of the hearing, is in direct contravention to decades of settled law in this State, every other state, and Federal Law. Furthermore, suggestions that the Circuit Court could entertain providing declaratory relief to declare future rights of the parties is also clearly contradicted by settled law. While unfortunate, it is imperative the Court of Appeals reiterate, again, that “moot” cases shall not be heard, declaratory judgments shall not be rendered on future or hypothetical issues, and cases “shall be dismissed” when there is “an appearance of a lack of jurisdiction.” Should these decisions and the CSA’s affirmation of their correctness stand, the public can only conclude that courts in this state are allowed to apply settled law arbitrarily, and capriciously. As a result, the public’s faith in the rule of law in 9Maryland will continue to erode. It is in the public interest for the Court to deter, not encourage, litigants who use the unpredictability of the application of settled law as a sword to bring and sustain frivolous legal action against citizens to achieve through legal duress what cannot be achieved otherwise. B. The CSA’s affirmation of the Circuit Court’s denial of the motion for mistrial overlooks incontrovertible errors of law. Maryland Rule 8-131(c) provides that when an action has been tried without a jury, "the appellate court will review the case on both the law and the evidence.” ‘The trial court’s decision not to comply with Md. Courts and Judicial Proceedings § 3-405 (a) (1) and join the third party beneficiary to the contract as a party to the case, and the trial judge’s direction to hear parole evidence prior to determining the clarity of the contractual language, are both questions of law. The legal conclusions reached by the circuit court are not accorded deference on appeal, however, and instead are reviewed de novo. (L.W. Wolfe Enters., Inc. v. Maryland Nat'l Golf, L.P., 165 Md.App. 339, 344, 885 A.2d 826 (2005). ‘The motion requesting a mistrial provided clear evidence of errors of law. Appellate review of whether the denial of the motion for mistrial was legally correct should have been based on a de novo review of the evidence. Instead, the CSA seems to have overlooked the well documented evidence of errors of law, and instead focused on two irrelevant factors: (1) reliance on the trial judge’s “exercise of discretion in evaluating the credibility” of the voluntariness of the voir dire and his “finding of fact that the voir dire was made “freely and voluntarily” and (2) an ex parte letter sent by the Appellant to the Court regarding the striking of his attomey’s appearance.! ‘It is disturbing the CSA would add its own words to a quote from this letter for use in their opinion. (Apx. 4) It was duress which caused “a negotiated settlement to the matter” to occur. The letter also states: “I am at a serious disadvantage until the Motion to Strike Appearance is granted and I can formally respond to the Motions being made of this Court by Opposing Counsel.” See Appellant's Reply Brief for specific reasons ex parte letters were sent to the Court before Appellant was recognized pro se. 10‘A prima facie case was made that the errors of law in this case justified the granting of a mistrial. Focusing its opinion on issues pertaining to the validity of the subsequently issued Consent Order, namely, questions of duress and consideration, inexorably leads one to the conclusion that the CSA did indeed overlook these errors of Jaw when affirming this decision. Cc ‘The CSA erred when it concluded the Consent Order was not voidable due to duress, lack of essential terms, and modification. ‘There are four reasons, supported by settled law, why this Consent Order is voidable. It was made under duress, it is missing essential terms, it was modified by the trial judge, and it directly conflicts with a previous contract, endorsed by the Circuit Court, which unequivocally states: “No modification or waiver of any terms of this Agreement by the parties shall be valid unless made in writing, and signed by the parties. “ (Marital Settlement Agreement Para. 32) (Apx. 5) “Mutual assent is an essential element with respect to the formation of a valid contract.” (Young v. Anne Arundel County, 146 Md. App. 526, 807 A.2d 651 (2002); Creel v. Lilly, 354 Md. 77, 101, 729 A.2d 385 (1998)) To establish duress there must be a wrongful act which strips the individual of the ability to utilize his free will. Duress which permits avoidance of a contract consists of the use of coercion, the vietim’s loss of the ability to act independently and the entry by the victim into the contract. (Blum v. Blum, 59 Md. App. 584, 594, 477 A.2d 289 (1984)) The Appellant's brief provided over 12 pages of explicit details identifying the formation of duress which led to the oral agreement being placed on the record. Despite settled law stipulating that “the determination of duress is dependent on the circumstances of each individual case” (Eckstein v. Eckstein, 38 Md. App. 514 (1978). the CSA relied only on the trial judge’s perception that the voir dire was made voluntarily and an ex parte letter to another Circuit Court judge regarding his pending ruling on a Motion to Strike Appearance. As stated in the Appellant’s Brief, 4“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.” To prove duress, the injured party must act to repudiate the agreement promptly or within a reasonable amount of time after the removal of the duress. (Saggese v. Saggase, 15 Md. App at 388, 290 A.2d 794 (1972) In this case, the CSA’s perception of the timeline of events is clearly erroneous, Mr. Chamberlain’s Motion Requesting Declaration of Mistrial, which identified all the errors and the formation of duress, was delayed for weeks after his attorney filed to strike his appearance for financial reasons, which the Appellee opposed. Within 3 days after being recognized by the Court pro se, Mr. Chamberlain filed his request for a mistrial and his lack of assent was made known to both the trial judge and the other party. This action could not have been taken more promptly than it was. Several weeks after this filing, with clear knowledge Mr. Chamberlain claimed he was under duress when voir dired, the trial judge ignored the clear evidence of errors which led to the duress and denied the motion for mistrial. He then modified the terms and unilaterally signed the Consent Order. Of note, the CSA denied Appellant’s motion to include the audio excerpt of the voir dire, which showed by delayed answers and tone that duress was present. The totality of the evidence clearly shows duress, making the Consent Order voidable by Maryland law. ‘Common law in Maryland requires that a contract contain essential terms to be valid and enforceable. The CSA agreed that only “general terms” were orally placed on the record. The transcript confirms that the trial judge twice asked if the parties were “close enough” to an agreement to terminate the proceeding. And common sense requires any reasonable third party to conclude that after 7 months and $32,000 spent in defense ofa single, clear and unambiguous contract sentence, the Appellant would not intend that a basic proposal, made in general terms, haphazardly formulated in a courtroom hallway over the course of a few minutes, would constitute the entire contract. 12Furthermore, the record clearly shows, as outlined in the Appellant's brief, that the trial judge added terms to his Consent Order that were not made in the coerced agreement on the record. The court does not have the authority "to delete, modify or substitute certain provisions." (Officers for Justice v. Serv. Comm'n of San Francisco, 688 F.2d 615, 630 (9th Cir. 1982)) In addition, the Appellant received no consideration from the agreement as required for the formation of a contract. The evidence is clear that what Ms. Chamberlain offered was only the withdrawal of a facially frivolous lawsuit seeking to increase “child support” for an adult who had already been granted contractual support after emancipation. The CSA suggestion that an agreement limiting the father’s obligation to $14,000.00 per year was consideration is misplaced. The father, at the time of the hearing, was not obligated to pay a dime unless the three parties were in agreement on where the son could apply and could enroll. Any agreement to pay money for a school not agreed to by Mr. Chamberlain was a benefit provided by Mr. Chamberlain, not consideration in return for the termination of two vexatious lawsuits. Notwithstanding there was no controversy remaining, of signal importance is that absent essential terms, such as specifics on payment issues and repayment of possible student loans, this oral agreement would have created more opportunities to litigate the matter, not terminate the uncertainty. It should be remembered that all three parties had already agreed to ‘Auburn University. The son applied there, the Appellee paid for that application, the son was accepted, offered a full academic scholarship, and walked away from that agreement. The Appellee subsequently filed this suit to force the Appellant to agree toa significantly more expensive school: Virginia Tech. Lastly, the evidence is clear that a previous contract, endorsed by this same court, requires any waiver to a provision be made in writing and signed by both parties. While Maryland law does allow for an implicit or explicit verbal waiver to overcome contracts with “change in writing only” clauses (Questar v. Pillar, 388 Md. 675, 686, 882 A.2d 13288, 294 (2005)), it does nor allow verbal waivers when the clause requires that a written waiver be signed. For arguments sake, if the written contract provides that it shall not be varied except by an agreement in writing, it must appear that the parties understood that this clause was waived. (Freeman v. Stanbern Const. Co., 205 Md. 71, 106 A.2d 50 (1954) (See also Myers v. Kayhoe, 391 Md. 892 A.2d 520 (2006); Canaras v. Lift Truck Services, 272 Md. 337, 322 A.2d 866 (1974); Williston, LAW OF CONTRACTS § 678 (3d ed.1961)) In this case, not only is the evidence devoid of any implied or explicit waiver of the “modifications in writing only” clause, it points to an expressed belief this clause would be in effect. The record shows even the other party intended the agreement to be concluded in writing and signed by both parties, as evidenced by the signature lines. provided in their own draft. Nevertheless, there was no written waiver of this provision. ‘The totality of the evidence on the record clearly demonstrates that the Consent Order of June 5, 2014 was voidable because the oral agreement was made under duress, because it lacked essential terms, because it was modified by the trial judge to include terms not found in the oral agreement, and because there was no indication whatsoever that the Appellant waived the “modification in writing only” clause, nor did he sign any waiver as explicitly required to waive any term or provision of that contract. D. The Consent Order was not validly entered by the Circuit Court. "Consent judgments or decrees are essentially agreements entered into by the parties which must be endorsed by the court.” (See Black's Law Dictionary 846 (7th ed. 1999); Montgomery County v. Revere Nat'l Corp., 341 Md. 366, 378, 671 A.2d 1,7 (1996). "Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms.” (United States v. Armour & Co., 402 U.S. 673, 681-82, 91 8.Ct. 1752, 1757, 29 LEd.2d 256, 263 (1971)) (underline added) 14‘The Appellant concedes an oral agreement made on the record is normally binding. While this case, however, differs from the cases cited? because, in this case, there are serious jurisdictional challenges, no signed agreement, claims of duress, and only general terms were placed on the record, the overarching philosophy of the Court is clear: a Consent Order should not be entered if there are questions pertaining to it’s formation (duress), it’s terms (missing essential terms) and if the parties mutually agree to it (not in writing, no signature, lack of assent evident weeks before signed by the Court). Itis inarguable that the correct course of action would have been to simply reschedule the hearing and continue with the litigation. The trial judge’s decision to add terms beyond those purportedly generally agreed to on the record and unilaterally sign it weeks after having knowledge one of the parties indicated he never voluntarily gave his consent demonstrates the type of judicial overreach clearly identified in Md. Rule 16-813 Rule 2.6 (b) [3] [4] as being improper. CONCLUSION ‘As the highest Court in the State of Maryland, ensuring the public can trust that settled law will be applied uniformly and equitably, and not arbitrarily and capriciously, is of paramount interest to all citizens. ‘The Petitioner prays this Court grant the Writ of Certiorari, grant a stay of judgment while conducting a de novo review of the clear and substantial evidence in this: case, vacate the June 5, 2014 Consent Order of the Circuit Court, and reassure the citizens of this State that settled law will be followed in the application of justice. Respectfully Submitted, Der naa Stephen D. Chamberlain 2 Dorsey v. Wroten, 35 Md. App 359 (1977); Barnes v. Barnes, 181 Md. App. 390, 408 (2008); Chernick v. Chernick, 327 Md. 470 610 A.2d 770 (1992) 15Certificate of Service 1 HEREBY CERTIFY that on this 12th day of May, 2015, a copy of the foregoing Petition for Writ of Certiorari was mailed First Class Postage prepaid to Samuel J Brown, Esquire, Marietta B. Warren, Esquire, and Evelyn Spurgin, Esquire, 221 Duke of Gloucester Street, Annapolis MD, 21401, Attorneys for Plaintiff Previously served documents do not accompany this service pursuant to Md. Rule 8-303 (b) (4). Sean Stephen D. Chamberlain