Bama, Inc. v. Anne Arundel County

Lowe, J., delivered the opinion of the Court. Appellant Bama, Inc., is a developer who agreed to improve a road adjoining its development and to donate 15 feet of land to widen it. This agreement was imposed by appellee Anne Arundel County as a condition for approving the right to develop. Appellant Fidelity and Deposit ¹⁶ Company of Maryland (F & D) guaranteed Bama’s performance by issuing to the County a performance bond in the amount of $30,000.

The suit by the County in the Circuit Court for Anne Arundel County upon default demands judgment in that amount. Appellants defend by claiming that they were forced to participate in an illegal contract in order to obtain a legal right to proceed with development. The Public Works Agreement, upon which the County here relies, was executed by Bama and the County on October 10,1978, but was expressly predicated upon a Subdivision Agreement entered into on April 4,1977. These dates are significant because the County expressly relied upon two ordinances, one of which was enacted on July 18, 1978, 1 as its authority to compel Bama to improve an existing road as a condition for subdivision approval.

The ordinance referred to as Section 13-121 (c), which is the only clearly expressed authority to impose such condition, was not enacted until after the condition was imposed and agreed to by Bama on April 4, 1977. In addition to general issue pleas, appellants filed a special plea of ultra vires "because Anne Arundel County did not have the authority to demand the promises made by Defendants as a condition for subdivision approval.” They also filed a unique counterclaim seeking "declaratory relief’, asking the court to declare the Public Works Agreement and the bond securing it to be null and void, because it took Bama’s property without compensation and required it to do more work than is constitutionally authorized. Because of the obvious incongruity of using the declaratory judgment procedure to counterclaim, we will not address that issue but will treat the constitutional issue as a defense entered under the general issue plea. - prelude - Before addressing the merits of the case appellants complain that their motion to dismiss should have been granted at the end of the County’s case, because no evidence had been ¹⁷ submitted that the bond upon which the County had sued existed, nor that if it did exist, that its provisions precedent to recovery were complied with by the County. Rather than ruling on the merits of the motion, the judge reopened the County’s case not once but twice and permitted the evidence to be introduced, then denied the motion.

"COURT: Well, I’ll entertain a motion to reopen, Mr. Court. MR. COURT [Asst. Co. Solicitor]: I didn’t hear what you said.

COURT: I’ll entertain a motion to reopen. MR. COURT: I move to reopen the case in order to submit copies of the original agreement, Your Honor. COURT: Alright.

Granted.” The County then called the Assistant Chief of the Inspection Division of the County Department of Public Works, through whom it introduced the Public Works Agreement along with the bond and again closed its case. Appellants renewed their motion to dismiss, this time because written notice of default (as required by the bond prerequisite to forfeiture) had not been submitted in evidence. Acknowledging its importance, the court again permitted the County to reopen and offer the evidence. "COURT: Well, it would seem to me to be appropriate that the notice would be put in as I would wonder if you could hold the bonding company without the notice in view of the terms of the public works agreement.

MR. COURT: Well, we feel we could but we feel we have notified them and therefore they are ... they not only were notified, but they failed to respond. COURT: Uh-huh. Well, I think it would be appropriate if the notices exist that we put them in, Mr. Court. ¹⁸ MR.

COURT: If the court please, I would move to put Mr. Richardson back on the stand.” Without waiving its general objection predicated upon its motion to dismiss, appellants agreed to waive the need for any testimony to introduce the correspondence. 2 "MR. SIMISON [Attorney for Bama]: Your Honor, if you’re inclined to allow the plaintiff to reopen their case to put those exhibits in, I would have no objection to them just going straight in without the need for testimony.” Implicitly and expressly in their briefs appellants argued that the invitations to reopen were abuses of discretion, the prejudice from which is apparent since the case could not have proceeded past the motion to dismiss absent that sua sponte elicitation. Although by putting on evidence after their motion was denied, appellants waived the motion, Moon v. Weeks, 25 Md. App. 322 (1975), because of the appearance of this unsolicited act by the court, we will address the issue of discretionary abuse. The court created the appellants’ dilemma of whether to rest upon the apparent abuse or proceed to defend on the merits.

Appellants cry "foul”, and with some justification we think. It is quite enough of a burden to fend off a government assault with such substantial resources at its disposal, but the effort becomes frustrating when the arbiter which is housed and partially sustained by the County, suggests and approves the procedure to overcome the errancy of the government’s oversight. But the act was discretionary, if not recommended. The right to reopen here, however, should have been looked upon askance, especially because of its compromising suggestibility and the appearance of judicial ¹⁹ propriety is as important to the public as the fact of it is to the parties. - the right to reopen - Poe’s Pleading and Practice (6th ed.) points out that the application to reopen a case once closed, for further testimony of evidence, is not looked upon with favor and, in face of objection, is seldom granted because of its liability to abuse.

Id. at Vol. 3, § 288 A, p. 507 (1975). Ironically, however, most cases prior to 1947, held the right to permit a party to reopen to be a discretionary exercise "from which no appeal lies.” In 1947, in Brown v. Bendix Aviation Corp., 187 Md. 613, 620 , the Court of Appeals addressed the issue by dicta, and for the first time implied that the rule of discretion could admit an exception. Subsequently, Willey v. Glass, 242 Md. 156, 163 (1966), expressly qualified the suggestion of jurisdictional review by interjecting the adverb "ordinarily”, leaving for the first time, an expressed loophole for appellate courts at least to review the trial judge’s exercise of discretion. But prior even to Brown , in Guyer v. Snyder, 133 Md. 19, 22 (1918), while repeating the "no appeal will lie” language, the Court hedged the appellate review proscription.

It cited the section in Poe suggesting that reopening was not favored, then sought to justify its affirmance of the lower court (which had permitted a reopening to introduce evidence in the case) rationalizing that the evidence admitted could not have prejudiced appellant’s case. "The nature and character of evidence set out in the exceptions and which was permitted to be introduced could not have prejudiced the claimant’s case, and he was not thereby injured by its admission. Without stopping to review the testimony or stating it in detail it is sufficient to say the case was one that presented a state of facts for the consideration of the jury and not for the Court to decide or determine, as a matter of law.” Id. at 22 . ²⁰ Implicitly the Court of Appeals seemed to express a proposition contrary to its bootstrap justification for affirmance: that if the evidence belatedly permitted were determinative as a matter of law its admission might have been prejudicial, suggesting to permit it could have been an abuse of discretion. But neither before nor since have we found the chink in the armor of discretion suggested by Guyer v. Snyder; and, although Brown acknowledged a likelihood of the suggested result by noting that in equity here, and in other jurisdictions, the rule allowing appellate review was more liberal, it promised little hope of future light, nor did Willey through the "ordinarily” qualification of the "no appeal will lie” language.

A perusal of our equity cases suggests that the exception to the no-appellate-review rule is couched in such broad judicialese that hope is slim for one who objects to prevail on appeal. The exception there indicated that there is an abuse by a chancellor only "where his action is arbitrary and the rights of some of the parties are improperly affected.” E.g., Shook v. Shook, 213 Md. 603, 612 (1957); Bradford v. Eutaw Savings Bank, 186 Md. 127, 131 (1946); Bailey v. Bailey, 186 Md. 76, 80 (1946). Apparently Poe’s observation that an application to reopen is looked upon with disfavor because of its liability to abuse was directed to the nisi prius level. It obviously was not suggestive either of our right to review law or our equitable standard of review on appeal.

If a distinction between law and equity exercises of discretion existed in this field, for purposes of our right to review, and/or our standard of review, as suggested in Brown , it seems no longer extant. At law appellate review has expressly evolved from no right to review to an expressed right to review subject to the ordinary abuse of discretion standard, Telak v. Maszczenski, 248 Md. 476, 495 (1968). What that standard entails, however, is still somewhat unclear. By citing both a law case, Telak , and an equity case, Nicholas v. Owrutsky, 230 Md. 60 (1962), for the ordinary review for abuse of discretion principle, we seem to have amalgamated into the law side, what Judge Henderson called in Brown, supra, the more liberal rule in equity, i.e., ²¹ that reversal is warranted only when the decision to reopen or not was arbitrary and some of the parties were improperly prejudiced.

Embrey v. Holly, 48 Md. App. 571, 602 (1981), rev’d, in part, on other grounds, 293 Md. 128 (1982). The case at bar suggests a degree of arbitrariness by the court twice inviting applications to correct determinative omissions of evidence and twice granting the extraordinary relief. That the appellants were prejudiced is unquestioned. Without the bond, the suit predicated upon it was lost; without proof of notice of default as required by the bond, there was no case as the County had brought it.

The question then is whether the prejudice was improper. Unfortunately for appellants, the plethora of cases upon this "seldom granted” relief, suggest the contrary. In East Balto. Transfer Co. v. Goeb, 140 Md. 534 (1922), the proof of ownership and operation of a truck which struck the plaintiff was permitted.

Despite the language in Guyer four years previous, suggesting that belated admissions of evidence determinative as a matter of law might be prejudicial, the Court of Appeals acknowledged that the admissions of ". .. necessary evidence for a proper consideration of the case ... [were] entirely within the discretion of the court....” and that the court’s action in that respect was "not reviewable by this Court and is no ground for an appeal.” 140 Md. at 537 . In Brown the same facts were suggested to the court, i.e., there was no evidence of what car struck the plaintiff or who drove it. Here, however, the proffer was made to recall the driver who was still present. The trial court denied the motion to recall and granted the motion for directed verdict.

Although the Court of Appeals discussed the old cases saying no appeal will lie, and implied that there may be in a proper case an exception to this rule and that review may be granted, it did not decide the issue. It held that even without the proffered evidence there had been sufficient evidence introduced to submit the case to the jury and, therefore, reversed without further enlightening us. It seems unlikely that the plaintiff would make the same mistake on retrial. ²² Assuming as argued by appellee here, that the judge believed that the County was somehow misled by the stipulation of counsel that no work had been done under the Public Works Agreement, we cannot hold his action arbitrary nor the insurer and insured "improperly” prejudiced by permitting the County to correct its errancy. Even its insouciance in failing then to prove compliance with the bonding contract was not so egregious that the judge could not permit a second bandaid to be applied to its case.

While courts are in the business of seeking the truth, the officer who decides where the truth lay should be hesitant, however, in suggesting to the procurement officers either where to search for it or how to produce it. Fair play suggests the judge should judge, but it is neither arbitrary nor improper for him to deviate upon occasion when a party may be harmed by an attorney’s imbroglio. But that is not the end of the County’s problems. - County authority to impose conditions - Pursuant to the Public Works Agreement of October 10, 1978, the County required the bond at issue "for completion of the roads and storm drainage facilities.” The parties agree that the roads and storm drainage facilities to be completed are those incorporated by reference in the Public Works Agreement as comprised in the Subdivision Agreement of April 4, 1977. It appears that in addition to the agreement to reconstruct the road abutting its proposed development, to which it agreed as a quid pro quo to subdivision development approval, Bama agreed in the October agreement to deed some 15 feet of land on the road to effect the reconstruction.

Appellants’ second complaint is that appellee’s requirement reflected in the April 4, 1977 agreement as a condition for development approval, was ultra vires in that there was neither authority by its County Council to so require, nor was the County authorized by State statute or constitution to enact such authorizing ordinance. On July 18, 1978 the County enacted under its Title 13 "Planning and Zoning”, Subtitle 1, "Subdivisions”, Article III, "Procedures for Filing and Processing Subdivision Appli ²³ cations”, three new subsections (indicated by italics) to its Section 13-121 "Street Construction”. "(a) The Subdivider shall provide for the complete construction of streets, curbs, gutters and sidewalks in accordance with the design manual. The developer shall be required to repair damage to county roads, storm drainage, curbs, gutters and sidewalks as