Sail Zambezi, Ltd. v. Maryland State Highway Administration

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1888

September Term, 2012

SAIL ZAMBEZI, LTD.

v.

MARYLAND STATE HIGHWAY
ADMINISTRATION

Eyler, Deborah S.,
Meredith,
Kenney, James A., III
(Retired, Specially Assigned),

JJ.

Opinion by Kenney, J.

Filed: April 30, 2014
Sail Zambezi, Limited (“Sail Zambezi”), appellant, appeals the judgment entered

against it in the Circuit Court for Anne Arundel County in favor of the Maryland State

Highway Administration (“MSHA”), appellee. It presents two questions for our review:

1. Did the Circuit Court err as a matter of law in including [the Code of
Federal Regulations (“C.F.R.”)] 33 C.F.R. §[§] 117.19-21 in the jury
instructions?

2. Did the Circuit Court err as a matter of law in holding that the spreadsheets
documenting the repair bills for the Zambezi were not admissible?

For the reasons that follow, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Sail Zambezi’s sole asset is the Zambezi, a 60' Oyster sailboat. On October 16, 2010,

Paul Gordon (“Mr. Gordon”), the owner of Sail Zambezi, took the Zambezi out for a day of

sailing along with his wife, a friend, and the Zambezi’s full-time captain, Guy Kalron

(“Captain Kalron”). Going out, the Zambezi traveled downstream through the Spa Creek

bridge (sometimes referred to as the Eastport bridge), a drawbridge that crosses Spa Creek

connecting Annapolis and Eastport. The drawbridge is controlled by a drawtender located

on the west side of the bridge. After sailing for several hours, the Zambezi returned and

waited near the Annapolis City Marina for the bridge to open. Sometime before 2:00 p.m.

the drawtender, David Anderson (“Mr. Anderson”), received a call requesting that the bridge

open. At approximately 2:00 p.m., Mr. Anderson opened the bridge, and boats heading

downstream passed through first. The Zambezi, without signaling to the drawtender that it

was going to pass through, began moving upstream toward the bridge. Another boat also

heading upstream passed in front of the Zambezi and went through before the Zambezi. The
drawbridge began to close as the Zambezi was proceeding through the bridge opening. When

Captain Kalron observed the bridge closing, he reversed the direction of the boat, but the

bridge and boat collided. When Captain Kalron called Mr. Anderson immediately after the

collision, Mr. Anderson said he never saw the Zambezi in the water or on his video screen

in the bridge operating station.

On May 19, 2011, Sail Zambezi filed a complaint1 in the circuit court alleging that

MSHA was negligent in that it breached its duty of care to the Zambezi because the

drawtender “failed to observe the Zambezi approaching the bridge” and that the “Zambezi

was in plain view prior to the time the bridge went up and should have been in plain view of

the video camera or mirror after the bridge went up.” Sail Zambezi further claimed that

MSHA failed to maintain properly working mirrors and cameras. This breach of duty and the

drawtender’s breach of duty resulted in the bridge striking the mast of the Zambezi and the

hull of the Zambezi striking the side of the bridge. Sail Zambezi alleged that as a direct and

proximate result of MSHA’s negligence, it suffered $77,200.29 in damages.

In its answer, MSHA asserted Sail Zambezi’s contributory negligence and assumption

of the risk as affirmative defenses. On March 30, 2012, MSHA filed a third-party complaint

against Captain Kalron alleging that any damage to the Zambezi was caused by his “acts or

1
Mark McGonigle, the owner of the boat that pulled in front of the Zambezi before
it went through the Spa Creek bridge, was added as a defendant on January 11, 2012. On
October 5, 2012, Sail Zambezi and McGonigle stipulated to a dismissal of all claims against
McGonigle with prejudice.

2
omission.” MSHA alleged entitlement to indemnification by Captain Kalron for any sums

it was obligated to pay Sail Zambezi.

On October 16, 2012 the trial court addressed certain issues pretrial including jury

instructions regarding the general requirements for signaling a drawtender prior to going

through an open bridge span. Sail Zambezi argued that the specific Spa Creek bridge

regulation, 33 C.F.R. § 117.571, varied from the general requirement that each boat must

signal because the regulation states that “the draw shall open on the hour and half-hour from

9:00 to 4:30 p.m.,” the time frame during which the collision of the Zambezi and the bridge

occurred. MSHA countered that the Spa Creek bridge regulation was not at variance with the

general requirement that a boat must still signal the drawtender. The trial court, agreeing with

MSHA, found that “the applicable law would require a signal of some sort, notwithstanding

the hours of operation.”

During the trial, Captain Kalron testified as to his understanding of the bridge

signaling requirements. He “knew that on Sundays and Saturdays and public holidays, [the

bridge] opens on the hour and a half hour for waiting boats.” Noting a difference between

winter and summer, he stated “that in the season between the beginning of May and the end

of October[, the bridge] would open for boats who are waiting. . .” Captain Kalron also noted

that the sign on the bridge had the drawtender’s phone number, but not a radio channel on

which to call him. On cross-examination, he testified that he was also familiar with the

C.F.R. provisions that require each vessel to signal if more than one vessel is approaching

3
a bridge and that if a bridge is open, each vessel approaching will also signal. He

acknowledged that there was nothing on the Spa Creek bridge sign indicating that no signal

was required.

The drawtender testified that even though the sign says the bridge will open on the

hour and the half hour, “it’s in the manual that there has to be - - someone has to contact me -

- . . . for me to open the bridge.”

The trial court gave the following jury instruction regarding the regulation:

The operator of each vessel requesting a drawbridge to open shall signal
the draw tender and the draw tender shall acknowledge that signal. The signal
shall be repeated until acknowledged in some manner by the draw tender
before proceeding.
When two or more vessels are approaching the same drawbridge at the
same time or nearly the same time, whether from the same or opposite
directions, each vessel shall signal independently for the opening of the draw
and the draw tender shall reply in turn to the signal of each vessel.
The draw tender need not reply to signals by vessels accumulated at the
bridge for passage during a scheduled open period. When a vessel approaches
a drawbridge with the draw in open position the vessel shall give the opening
signal. If no acknowledgment is received within 30 seconds, the vessel may
proceed with caution through the open draw.

During the trial, an issue involving the admissibility of testimony regarding the

reasonableness of the cost of repairs arose. MSHA argued that, because the case had not been

filed under §10-105 of the Courts and Judicial Proceedings Article (“C.J.P.”)2 of the

2
Courts and Judicial Proceedings Article §10-105 states in relevant part:

Section applicable to civil actions in District Court or circuit court
(a) The provisions of this section apply to a civil action in:
(continued...)

4
Maryland Code, there was “still a requirement for proof of genuineness and authenticity and

fairness and reasonableness of the goods and services. . . .” Sail Zambezi stated its intent to

introduce the repair bills as a business record and provide testimony regarding the charge and

its reasonableness, but had not gotten to that point in its case. The trial court noted:

So I am trying to anticipate some things. All right. So I don’t believe that the
business records exception excludes the requirement that the bill is somehow
authenticated or whatever. And you haven’t even complied with the provisions
of [C.J.P. §] 10-105, which would be applicable in a smaller claim, which is
to give notice that you are going to introduce the bill.
So I don’t believe the bill is admissible either under [C.J.P. §] 10-105
or under the business records exception unless you can convince me why it

(...continued)
(1) The District Court; or
(2) A circuit court if the amount in controversy in the action in the
circuit court does not exceed the amount specified in § 4-401
[($30,0000] of this article for that type of action.

Paid bill admissible without testimony of provider of goods or services
(b)(1)(i) Subject to the provisions of this section, a paid bill for goods or
services is admissible without the testimony of the provider of the goods or
services as evidence of the authenticity of the bill for goods or services
provided and the fairness and reasonableness of the charges of the provider of
the goods or services.

***
Notice of intention to introduce bill
(c)(1) Subsection (b) of this section applies only if, at least 60 days before the
beginning of the trial, the party who intends to introduce the bill:

(i) Serves notice of the party's intent to introduce the bill without
the support of the testimony of the provider of the goods or
services that were billed, a list that identifies each bill, and a
copy of the bill on all other parties as provided under Maryland
Rule 1-321[.]

5
would be admissible as a business record, if you can argue that point. Because
you don’t have anyone here to certify it is a business record.

Arguing that the bills were business records, Sail Zambezi indicated that it would get the

bills, keep track of them, add them up, and pay them in their course of business. The trial

court, however, found that the invoices did not qualify under the business record exception

to the hearsay rule because they were not Sail Zambezi’s records, but “something they

received in the mail.”

Captain Kalron testified that he was in charge of “every aspect of maintenance and

management of any maintenance that was done” on the Zambezi, and that he took steps to

ensure that the cost of the repairs were reasonable by getting “a couple of estimates” and

“decid[ing] to go with the person who [he] felt was reliable, experienced and in some cases

the cheapest.” The trial court, however, did “not allow him to give his ultimate opinion as

to reasonableness because that is something an expert would do” and Captain Kalron was not

qualified as an expert. Captain Kalron did testify that he “ke[eps] track of all receipts . . . in

my manner of just running and maintaining the boat, I keep records of any expenses, which

I file numbered the receipt. I have a [spread]sheet that I label the description and the

amount.” The receipts and spreadsheet are then sent to Mr. Gordon. Sail Zambezi sought to

admit Exhibit 52, a spreadsheet that related to the expenses involving the repairs for the

rigging resulting from the collision with the bridge. MSHA objected to its admission on the

basis that it was a “written list of the bills” and because it was prepared for trial, not a

business record. Sail Zambezi countered that the document was a compilation that was

6
prepared in “real time” for Mr. Gordon as part of Captain Kalron’s employment.

The parties voir dired Captain Kalron regarding the spreadsheet. Captain Kalron

testified that he managed the payments, kept track of them, and reported them. He said that

“any running costs that are small in amount, I will just mark down and send an email with

a numbered [sic], just as we’re looking at now. It’s a spreadsheet with a number of invoices

and the amounts and the totals.” According to Captain Kalron, he first created the Exhibit 52

spreadsheet in November 2010 and compiled it over an eight to ten month period. He

testified that “for any major project [he created] its own separate [spreadsheet].” Otherwise,

he explained, it would be difficult to identify expenses related to the collision from unrelated

expenses that he was also paying for the Zambezi. When the trial court asked him why he

specifically created Exhibit 52 in the form of a separate document, Captain Kalron

responded:

[f]or the purpose of this case. To make sure that the amount of what was
related to the incident will be transferred to either, I did not realize whether
we’re going to end up in court or anything, to know how much was spend [sic]
in regards directly to the accident and not just the whole month that I’m here.

The trial court found that, because Captain Kalron “indicated [the spreadsheet] was prepared

for trial from other source documents,” Sail Zambezi “should be using the source

documents.”

The trial court permitted Sail Zambezi to mark Exhibit 52 “for identification and [use

it] to refresh [Captain Kalron’s] memory.” Captain Kalron then testified that Sail Zambezi

paid around $60,000 for repairs, including the riggers that worked on the mast and replaced

7
the parts, the crane, dockage at the yard, storage of the mast for a month, environmental fees,

car rentals, hotel payments, daily fees for keeping the boat out of the water, and a

dehumidifier to prevent mold.

The jury found both Sail Zambezi and MSHA negligent with Sail Zambezi being 85

percent at fault and MSHA 15 percent at fault, but that no dollar damages had been proven.3

Sail Zambezi then filed a timely appeal to this Court.

DISCUSSION

Applicability of 33 C.F.R. §117.19-21

On appeal, Sail Zambezi argues that the circuit court erred in including 33 C.F.R.

117.15,4 19,5 and 216 in the jury instruction. It argues that 33 C.F.R. § 117 details “the

3
Even though Sail Zambezi proceeded outside the United States District Courts, “the
features peculiar to admiralty law, . . . including the doctrine of comparative negligence”
apply. Jong Hee Park v. U.S. Lines, Inc., 50 Md. App. 389, 398 (1982) (internal citations
omitted).
4
“The operator of each vessel requesting a drawbridge to open shall signal the
drawtender and the drawtender shall acknowledge that signal. The signal shall be repeated
until acknowledged in some manner by the drawtender before proceeding.”
5
When two or more vessels are approaching the same drawbridge
at the same time, or nearly the same time, whether from the
same or opposite directions, each vessel shall signal
independently for the opening of the draw and the drawtender
shall reply in turn to the signal of each vessel. The drawtender
need not reply to signals by vessels accumulated at the bridge
for passage during a scheduled open period.
6
“When a vessel approaches a drawbridge with the draw in the open position, the
vessel shall give the opening signal. If no acknowledgment is received within 30 seconds,
(continued...)

8
operating regulations for all drawbridges in the United States.” “Subpart A of those

regulations provides general requirements for drawbridge operation, and subpart B contains

regulations specific to individual bridges.” The regulations in subpart B

are in addition to or vary from the general requirements in Subpart A. Specific
sections in subpart B that vary from a general requirement in Subpart A
supersede the general requirement. All other general requirements in
Subpart A, that are not at variance, apply to the drawbridges and removable
span bridges listed in Subpart B. ([E]mphasis added).

33 C.F.R. §117.1(c). Subpart A requires that vessel operators “signal the drawtender in order

to request a drawbridge to open, or to proceed through an already opened bridge,” while

“Subpart B, as it relates [specifically] to the Spa Creek Bridge states: ‘on Saturdays, Sundays,

and holidays year-round, the draw shall open on the hour and half-hour for vessels waiting

to pass.’” According to Sail Zambezi, “the Spa Creek regulation is at variance with the

requirement in Subpart A that a vessel operator must signal the drawtender[,]” because “[t]he

Spa Creek bridge has scheduled opening times, when the bridge ‘shall open’ for waiting

boats[.]” Sail Zambezi also points out that the individual regulations for all other bridges in

Maryland specifically state that the bridges “shall open on signal,” and that the regulation

governing Spa Creek bridge does not include the phrase “on signal.” Therefore, Sail Zambezi

concludes that “[i]t is clear from this distinction that the Spa Creek Bridge was intended to

operate differently than other bridges in Maryland,” and that “[i]f a signal was required for

(...continued)
the vessel may proceed, with caution, through the open draw.”

9
the Spa Creek bridge to open, the regulation would read ‘shall open on signal’ just as nearly

every other bridge regulation does.” It further points out that “[t]he signs on the bridge

confirm the scheduled time for openings, and make no mention of any need to call the

bridgetender prior to scheduled opening.”

MSHA responds by arguing that Subpart A of the C.F.R. “require[s] all vessels to

signal prior to passage through a drawbridge. Section 117.15 specifies that ‘the operator of

each vessel requesting a drawbridge to open shall signal the drawtender’ (emphasis added).”

Additionally, §117.19 (“each vessel shall signal independently for the opening of the draw)

and §117.21 (when a vessel approaches a drawbridge with the draw in the open position, the

vessel shall give the opening signal) both “use the mandatory language ‘shall’ in setting out

the obligation of the vessel to signal the tender prior to passage through the bridge,” and “[i]n

Maryland, the ‘use of the word ‘shall’ is ordinarily presumed to be mandatory.’ G&M Ross

Enters. v. Board of License Comm’rs, 111 Md. App. 540, 543 (1996)” (internal citation

omitted). According to MSHA, the Subpart B provision relating to Spa Creek bridge only

modifies or varies the Subpart A provision “that a drawbridge ‘must open promptly and fully

for the passage of vessels when a request or signal to open is given.” Whereas generally “a

drawbridge ‘open[s] promptly’ upon receiving a signal,” the Spa Creek bridge will open only

at set times, but “[t]here is nothing in the Spa Creek ‘opening schedule’ that the general rule

for vessels to signal is suspended.” (Emphasis in original).

Moreover, MSHA contends that

10
A signal is the means by which a drawtender is able to distinguish a vessel
‘waiting to pass’ from a vessel merely idling in the harbor. A signal allows the
drawtender to know when the bridge needs to be opened. It assists in
determining how long an opening is required. It also avoids the inconvenience
to motorists and pedestrians looking to cross the bridge. . . . The danger of not
signaling is evident from the collision which occurred in the instant case.

The testimony at the trial showed that the Zambezi was awaiting passage through the bridge

in the vicinity of the Annapolis City Marina. Because the Zambezi never signaled prior to

attempting passage through the bridge, the drawtender began to close the bridge when it

appeared that all the boats in line passed through the bridge. If boats “have no obligation to

signal prior to passage through the Spa Creek Bridge, [it] would create untold havoc to

boaters and local residents.”

“[T]he standard of review for jury instructions is that so long as the law is fairly

covered by the jury instructions, reviewing courts should not disturb them.” Farley v. Allstate

Ins. Co., 355 Md. 34, 46 (1999) (citing Jacobson v. Julian, 246 Md. 549, 561 (1967)). When

“interpreting regulations, we ‘generally employ the same rules applicable to the interpretation

of statutes.’” Ward v. Dep’t of Public Safety & Correctional Servs., 339 Md. 343, 351 (1995)

(quoting Chesapeake v. Comptroller, 331 Md. 428, 440 (1993)). We review questions of

statutory or regulatory interpretation de novo. See Salamon v. Progressive Classic Ins. Co.,

379 Md. 301, 307 (2004).

The cardinal rule of statutory construction is to ascertain and effectuate the
intent of the Legislature. In ascertaining legislative intent, we first examine the
plain language of the statute, and if the plain language of the statute is
unambiguous and consistent with the statute’s apparent purpose, we give effect
to the statute as it is written. If a statute has more than one reasonable

11
interpretation, it is ambiguous. If the language of the statute is ambiguous, we
resolve the ambiguity in light of the legislative intent, considering the
legislative history, case law, and statutory purpose. We consider both the
ordinary meaning of the language of the statute and how that language relates
to the overall meaning, setting, and purpose of the act. We avoid a construction
of the statute that is unreasonable, illogical, or inconsistent with common
sense. We construe a statute as a whole so that no word, clause, sentence, or
phrase is rendered surplusage, superfluous, meaningless, or nugatory.

Mayor & Town Council of Oakland v. Mayor & Town Council of Mountain Lake Park, 392

Md. 301, 316 (2006) (internal citations omitted).

The regulation at issue is divided into subpart A and subpart B. “Subpart A contains

all the general operation requirements that apply to all drawbridges.” 33 C.F.R. §117.1(b).

While,

Subpart B contains specific requirements for operation of individual
drawbridges. These requirements are in addition to or vary from the general
requirements in Subpart A. Specific sections in subpart B that vary from a
general requirement in Subpart A supersede the general requirement. All of the
general requirements in Subpart A, that are not at variance, apply to the
drawbridges and removable span bridges listed in Subpart B.

33 C.F.R. §117.1(c). General requirements in subpart A include that “[t]he operator of each

vessel requesting a drawbridge to open shall signal the drawtender and the drawtender shall

acknowledge that signal. The signal shall be repeated until acknowledged in some manner

by the drawtender before proceeding.” 33 C.F.R. §117.15(a)(1). Additionally,

[w]hen two or more vessels are approaching the same drawbridge at the same
time, or nearly the same time, whether from the same or opposite directions,
each vessel shall signal independently for the opening of the draw and the
drawtender shall reply in turn to the signal of each vessel. The drawtender
need not reply to signals by vessels accumulated at the bridge for passage
during a scheduled open period.

12
33 C.F.R. §117.19. (Emphasis added). The relevant Subpart B regulation for the Spa Creek

bridge states:

(a) From May 1 to October 31, Monday through Friday, except Federal and
State holidays:
(1) The draw shall remain closed from 7:30 a.m. to 9:00 a.m. and from 4:30
p.m. to 7:30 p.m., except the draw shall open at 6:00 p.m. and 7:00 p.m. for
any vessels waiting to pass.
(2) The draw shall open on the hour and the half-hour, from 9:00 a.m. to 4:30
p.m.
(3) The draw shall open on the hour and half hour, from 7:30 p.m. to 7:30 a.m.
(b) From November 1 to April 30, Monday through Friday, except Federal and
State holidays:
(1) The draw shall remain closed from 7:30 a.m. to 9:00 a.m. and from 4:30
p.m. to 6:00 p.m.
(2) The draw shall open on signal from 9:00 a.m. to 4:30 p.m. and from 6:00
p.m. to 7:30 a.m.
(c) On Saturdays, Sundays, and holidays year-round, the draw shall open on
the hour and half-hour for vessels waiting to pass. Except on July 4th of every
year from 8:30 p.m. to 11 p.m., the draw need not open for vessels, and in the
event of inclement weather, the alternate date is July 5th.
(d) The drawspan must always open on signal for public vessels of the United
States.

33 C.F.R. §117.571. (Emphasis added).

The plain language of the regulation before us is neither ambiguous nor at variance

with the general requirement that all vessels must signal to the drawtender to open a

drawbridge or that, in the case of two or more vessels seeking passage through an open

bridge, that each vessel approaching the bridge must signal. Section 117.571 simply indicates

the times when the bridge will open— on Saturdays, Sundays, and holidays at the hour and

half-hour. Nothing in the language of the Spa Creek bridge regulation suggests an intent to

omit the general signaling requirement imposed on “each vessel” to “signal independently

13
for the opening of the draw.”

Moreover, interpreting the regulation related to the Spa Creek bridge as eliminating

the need to signal prior to passage through a bridge would not, in our view, be reasonable,

logical, or consistent with common sense. As demonstrated by the collision now before us,

failing to signal on a busy waterway can confuse a drawtender about whether a boat intends

to pass through a bridge or is just moving close by and can lead to accidents. In addition, as

noted by the parties in their briefs, the Spa Creek bridge is in a heavily trafficked area for

motor vehicles and pedestrians. It would be unreasonable to interpret the regulation to mean

that the bridge is required to open every half-hour even when no boat has signaled its intent

to pass through. That could lead to many unnecessary openings and delays to the traffic

crossing the bridge. Accordingly, the trial court’s jury instructions accurately covered the

applicable law, and we shall not disturb them.

Admissibility of the Spreadsheet

Sail Zambezi argues that the circuit court erred in holding that the records 7 of the

repairs to the Zambezi were inadmissible because the spreadsheet is a business record and

therefore an exception to the hearsay rule. According to Sail Zambezi, the spreadsheet meets

the requirements of a business record because it “was made in real time as the Captain paid

7
In its brief, Sail Zambezi switches between arguing that “the spreadsheet” and “the
spreadsheets” were excluded in error. We interpret Sail Zambezi’s argument to refer
particularly to the exclusion of Exhibit 52 (spreadsheet of the mast/rigging repairs) because
the parties voir dired Captain Kalron in regard to that spreadsheet. However, our analysis
would apply to any other spreadsheets created the same way.

14
repair bills for the vessel[;] . . . the spreadsheet was made by the Captain of the Zambezi,

who testified that he was responsible for paying all bills[;]” the captain “had significant

knowledge about vessel repairs and maintenance and was entrusted by the corporation to

contract for all maintenance and repairs[;]” and Captain Kalron “regularly prepared

spreadsheets like the one offered for [Sail Zambezi’s] owner.” Sail Zambezi argues that the

circuit court erred in excluding the document “without any finding of unreliability[,]” and

that “[o]nce it has been established that a document is a business record, the burden shifts to

the objecting party to prove the untrustworthiness of the document.” See Owens-Illinois, Inc.

v. Armstrong, 326 Md. 107, 112-113 (1992). It further asserts that “[t]he source invoices

were produced during discovery, and there was no suggestion by [MSHA] that the

spreadsheet had been falsified or altered in any way,” and “[b]ecause there was no finding

of unreliability, and because the spreadsheets were a business record, they should have been

admitted.” Sail Zambezi also contends that the spreadsheet was not prepared for trial based

on Captain Kalron’s testimony that he “did not realize whether we’re going to end up in court

or anything[.]” According to Sail Zambezi, “the spreadsheet was simply intended to maintain

a record of repair expenses separate from monthly expenses,” and “[f]ailure to admit the

records had severely limited [Sail Zambezi’s] ability to provide corroborating details to the

jury.”

MSHA responds that the circuit court correctly excluded Sail Zambezi’s spreadsheet

because it was “created for the purposes of litigation[,]” and, therefore, “not a ‘business

15
record.’” And, even if the spreadsheet did qualify as a business record, it should still have

been excluded because of the hearsay within the spreadsheet. Under Maryland Rule 5-805,

when “one or more hearsay statements are contained within another hearsay statement, each

must fall within an exception to the hearsay rule in order not to be excluded.” According to

MSHA, the spreadsheet contains “information taken from bills and invoices that were not in

evidence” and were “from various service providers.” The bills and invoices “are not

business records of [Sail Zambezi], but rather are outside information of the service

providers.” MSHA further argues that, while under C.J.P. §10-105, a “paid bill for goods or

services is admissible without the testimony of the provider of the goods or services as

evidence of the authenticity of the bills[,]” Sail Zambezi did not offer the bills or invoices

into evidence, and prior to trial “there were no stipulations between the parties regarding any

of the documents in the case.” The “bills and invoices purportedly incurred for repairs due

to the collision with the bridge . . . were never admitted into evidence. . . [nor] were [they]

formally offered into evidence by [Sail Zambezi].” Nor would Sail Zambezi’s claim fall

under the purview of C.J.P. §10-105 because Sail Zambezi did not enter any bills or invoices

into evidence nor did it offer an expert at trial to testify that “expenses incurred by [Sail

Zambezi] were fair, reasonable, or causally related to the subject incident.” Thus, according

to MSHA, this issue is not preserved for our review because it was not raised or decided

before the trial court. See Maryland Rule 8-131(a).

During trial, however, while discussing C.J.P. §10-105, Sail Zambezi stated it was

16
going to introduce the repair bills “down the stream from where [they were]” in its case. The

trial court noted that it wanted “to anticipate some things,” so Sail Zambezi argued that the

bills were “business records . . . kept in the ordinary course of business” because Sail

Zambezi would get the bills, keep track of them, add them up, and pay them. It also noted

that it would provide testimony as to the reasonableness of the charges. The trial court found

that the bills were inadmissible under C.J.P. §10-105 and the business records exception.

Based on the record, we are persuaded that the issue was adequately preserved for our

review.

We “review rulings on the admissibility of evidence ordinarily on an abuse of

discretion standard.” Bernadyn v. State, 390 Md. 1, 7 (2005) (citing Hopkins v. State, 352

Md. 146, 158 (1998)). When, however, hearsay is involved, our review “is different.

Hearsay, under our rules, must be excluded as evidence at trial, unless it falls within an

exception to the hearsay rule excluding such evidence or is ‘permitted by applicable

constitutional provisions or statutes.’” Id. at 8 (quoting Md. Rule 5-802). In other words,

there is “no discretion to admit hearsay in the absence of a provision providing for its

admissibility.” Id.

Under Maryland Rule 5-803(6) a business record is an exception to the hearsay rule.

To qualify as a business record, the document must:

(A) . . . [be] made at or near the time of the act, event, or condition, or the
rendition of the diagnosis, (B) . . . [be] made by a person with knowledge or
from information transmitted by a person with knowledge, (C) . . . [be] made
and kept in the course of a regularly conducted business activity, and (D) the

17
regular practice of that business was to make and keep the memorandum,
report, record, or data compilation. A record of this kind may be excluded if
the source of information or the method or circumstances of the preparation of
the record indicate that the information in the record lacks trustworthiness. In
this paragraph, “business” includes business, institution, association,
profession, occupation, and calling of every kind, whether or not conducted for
profit.

Md. Rule 5-803(6). Business records must meet “the tests of necessity and circumstantial

guaranty of trustworthiness,” Mattvidi Associates Ltd. v. NationsBank of Virginia, N.A., 100

Md. App. 71, 87 (1994) (internal quotation and citation omitted), and “[t]he business records

exception does not embrace self-serving records, made in anticipation of litigation, which

lack circumstantial guarantees of trustworthiness.” Hall v. University of Maryland Medical

System Corp. 398 Md. 67, 89 (2007) (citing Lynn McLain, Maryland Rules of Evidence, Rule

5–803(b)(6), § 4(q )(I), 237 (2d ed. 2002)). “Summaries or compilations of business records

may similarly be admissible,” Schear v. Motel Management Corp. of America, 61 Md. App.

670, 680 (1985) (citing Smith v. Jones, 236 Md. 305, 309 (1964)), “when a proper foundation

has been laid by a qualified witness on the stand.” Smith v. Jones, 236 Md. at 309-10

(internal citations omitted). “It is generally required that the documents to be summarized be

made accessible to the opposing party and that notice be given of the proponent's intention

to use such a summary.” Sergeant Co. v. Clifton Bldg. Corp., 47 Md. App. 307, 316 (1980)

(citing Annot., 80 A.L.R.3d 405 (1977)).

Here, after voir dire, the trial court denied the admission of the spreadsheet based on

the fact that it was prepared for litigation and not an original business record of Sail Zambezi.

18
Even if the spreadsheet qualified as a business record, we hold that the trial court did not

abuse its discretion in denying the admission of the spreadsheet due to facts surrounding its

creation and the untrustworthiness of the document. As Captain Kalron testified, he regularly

prepares monthly spreadsheets of expenses, but he created Exhibit 52 as a separate

spreadsheet for “the purposes of this case.” “[T]he purpose for which the record was

prepared and any possible motive to falsify including whether the record's use in prospective

litigation was a motive for its preparation” is a factor “that can be utilized by a trial judge in

determining whether a business record or a portion of a business record should be excluded

for lack of trustworthiness.” Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 115 (1992)

(internal citations omitted). Additionally, although Sail Zambezi argued that it provided

MSHA with the invoices during discovery, no evidence was presented that Sail Zambezi had

provided MSHA with the source documents during discovery or the monthly spreadsheets

from which Exhibit 52 was created. Therefore, MSHA had no opportunity to compare the

spreadsheet with the source documents.

Furthermore, when information in a business record is not admissible, the compilation

is not admissible. See O’Donnell v. State, 188 Md. 693, 698 (1947). “[U]nder the common

law and the Maryland Rules, each level of hearsay must satisfy an exception to the rule.”

Bernadyn v. State, 390 Md. 1, 20 n. 6 (2005) (citing Hadid v. Alexander, 55 Md. App. 344,

350 (1983)). Here, the information in the spreadsheet was based on the invoices that the trial

court found inadmissible because they were not business records of Sail Zambezi and did not

19
comply with the requirement of C.J.P. §10-105. Nor did MSHA stipulate to the admissibility

of the invoices during discovery. Therefore, the information in the spreadsheet did not satisfy

an exception to the hearsay rule.

In the absence of applicability and compliance with C.J.P. §10-105, Sail Zambezi

would have needed the testimony of the provider of the invoice to admit it as a business

record or expert testimony explaining the reasonableness of the expenses. See Shpigel v.

White, 357 Md. 117, 129 (1999) (“‘[A] live witness still will be needed if . . . the business

record does not establish all the facts needed to be proved, such as that the . . . bills were

‘reasonable and customary.’” (quoting L. Mclain, Self-Authentication of Certified Copies of

Business Records, 24 U. B ALT. L. R EV. 27, 75 (1994))). Moreover, the lack of testimony

regarding the reasonableness of the charges added to the untrustworthiness of the

spreadsheet. We “presume that the trial judge knows the law and applies it properly.”

Thornton v. State, 397 Md. 704, 736 (2007). In sum, we are not persuaded of error or abuse

of discretion in excluding the spreadsheet.

JUDGMENT AFFIRMED; COSTS
TO BE PAID BY APPELLANT.

20