Board of Education v. Beka Industries, Inc.

GRAEFF, J. This case arises from a dispute relating to the construction of Ocean City Elementary School (“OCES”), located in Worcester County, Maryland. Appellant, the Board of Education of Worcester County (the “Board”), and appellee, BEKA Industries, Inc. (“BEKA”), entered into a written contract for BEKA. to perform the sitework portion of the construction. Disputes arose regarding payment pursuant to the original contract and for additional work that BEKA performed. Folio-wing a four-day bench trial in the Circuit Court for Worcester County, the court ruled in favor of BEKA, entering a “compromise” judgment against the Board in the amount of $1,100,000.

On appeal, the Board raises four questions for our review, which we have rephrased as follows: 1. Are BEKA’s claims against the Board barred by the doctrine of sovereign immunity? 2. Did the trial court err in prohibiting the Board from submitting evidence regarding its recoupment claim? 3. Is BEKA entitled to damages for delay? 4.

Did the trial court’s failure to decide legal and factual issues in rendering a compromise verdict constitute reversible error? For the reasons set forth below, we shall reverse the judgment of the circuit court and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND In 2003, the Board received final approval to go forward with the OCES project, and it received funding of approximately $17.8 million. Dr. Jon Andes, Superintendent of Schools for Worcester County, explained that $4.8 million was contributed by the State, which included contributions from the Board of Public Works and the Interagency Committee on ⁶⁷⁷ School Construction, and the rest of the money came from the county government.

OCES was to be completed in two phases, with the construction of the new elementary school in Phase One, and the demolition of the existing elementary school in Phase Two. It was to be a multi-contractor project, with contractors contracting directly with the Board. The Board hired a construction management company, SPN, Inc., to be the school’s representative on-site to manage the contractors, and it retained an architectural firm, Cochran, Stephenson & Donkervoet, which was responsible for the overall design of OCES. In May 2004, BEKA submitted a lump sum bid of $1,856,000 to perform the sitework for the OCES project. 1 James H. Reinhardt, Sr., President of BEKA, testified that “lump sum means that you get your lump sum bid price if you successfully complete the project pursuant to the contract documents.” BEKA’s bid was accepted by the Board that same month.

On June 8, 2004, BEKA and the Board executed a contract memorializing their agreement. 2 The parties subsequently agreed to three approved change orders, in the amount of $105,913, which increased the total contract price to $1,961,913.48. BEKA began work in June 2004. The project was scheduled to be completed by December 5, 2005, but there were delays, and BEKA did not complete the work until May 2006. Disputes arose regarding payment on the project.

On October 12, 2007, BEKA filed a Complaint for Money Dam ⁶⁷⁸ ages and Other Relief in the Circuit Court for Worcester County. The Complaint included 49 counts against the Board, including 46 counts asserting breach of contract, and three counts alleging negligent misrepresentation, unjust enrichment and quantum meruit. BEKA sought damages in the amount of $1,157,053.75, in addition to pre-judgment interest, post-judgment interest, costs and attorneys’ fees. BEKA alleged that the Board owed $361,991.47 under the initial contract and more than $795,000 for proposed change orders (“PCOs”).

On December 7, 2007, the Board filed an Answer. The Answer generally denied liability, stating that the Complaint failed to state a claim upon which relief could be granted. It raised 12 affirmative defenses, including accord and satisfaction, collateral estoppel, estoppel, fraud, illegality, laches, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. The Board subsequently filed a second and third amended answer asserting additional defenses, including recoupment and governmental immunity.

Numerous pre-trial pleadings and motions were filed by the parties that relate to the arguments raised on appeal. These will be discussed in more detail, infra. On October 6, 2008, the trial began. BEKA called James Reinhardt, President of BEKA Industries, as its first witness.

Mr. Reinhardt explained that BEKA is considered a “heavy civil contractor,” and it performs “infrastructure work associated with clearing, excavation and grading, utilities, parking-lot construction, [and] things that are not included with the actual construction of a building.” Mr. Reinhardt was qualified as an expert in the areas of construction management, sitework and heavy construction, sequence of construction, lost production, defective and incomplete work, and additional costs associated with contract changes. According to Mr. Reinhardt, the Board owed BEKA money on the initial contract, as well as payment for additional work that BEKA was asked to do. Proposed Change Orders (“PCOs”) were the method by which BEKA notified the Board of its increased ⁶⁷⁹ costs for additional work. Mr. Reinhardt described three categories of PCOs involved in this lawsuit: those which the Board agreed to pay; those partially disputed; and those fully disputed.

He stated that BEKA fully complied with the contractual provisions of notice and substantiation when preparing its PCOs. Lydia Hoover, BEKA’s Vice President of Contract Administration, testified that she was directly involved with the PCOs. She sent various correspondence to the Board’s construction manager, the project architect, and the Board itself regarding the status of the PCOs and the unpaid balance on the base contract. Despite responses indicating that the construction management company needed more time to review the claims for PCOs, the Board, the construction management company and the project architect were largely unresponsive to BEKA’s requests.

On July 11, 2007, BEKA wrote a letter to the Board’s Superintendent requesting permission to address the issue at a school board meeting. 3 The Board denied this request. Paul Till, a project manager and consulting engineer with the firm of Hardin Kight Associates (“Hardin”), was BEKA’s final witness. Mr. Till testified that BEKA employed Hardin for the OCES project “to provide quality control testing and inspection services during construction.” The company performed its work, which consisted of monitoring BEKA’s earthwork grading operations to determine its compliance with the contract specifications, from June 28, 2004 to May 5, 2006. At the conclusion of BEKA’s case, the Board moved for judgment in its favor on various grounds.

As relevant to this appeal, the Board argued: (1) the defense of sovereign immunity provided a partial waiver for BEKA’s negligent misrepre ⁶⁸⁰ sentation claim, capping any recovery at $100,000; (2) it had “only waived [its immunity] for written contracts, not quasi contracts,” and therefore, the Board was entitled to sovereign immunity on BEKA’s claims for unjust enrichment and quantum meruit; and (3) the claim for damages for delay was prohibited by the parties’ contract, and, in any event, they were not timely submitted in accordance with the contract. BEKA opposed the motion for judgment. It alleged that the defense of sovereign immunity was not applicable to a county entity in contract actions. BEKA argued that it had proven that it was entitled to the damages sought, and that the changes to the contract, submitted through PCOs, were “necessitated by the actions of the board including intentional interference and gross negligence, but primarily by changes to the contract.” With respect to the no-damages-for-delay clause in the modified AIA form contract, BEKA argued that it had no force or effect.

Alternatively, BEKA argued that the Board’s actions had been “so outrageous” that, even if the no-damages-for-delay clause was effective, there was a recognized exception allowing the court “to require the board to reimburse BEKA for its cost incurred.” The court denied the Board’s motion “in its entirety.” The Board then presented its case. Dr. Jon Andes, the Worcester County Superintendent of Schools, testified that he was responsible for the operation of the entire county school system. He explained that the Board receives funding from the Worcester County government, the State of Maryland, and the federal government, with approximately 75% of the Board’s operating budget provided by the county government. He testified that “[sjchool boards in Maryland are fiscally dependent upon county government.” With respect to OCES, Dr. Andes testified that it originally was built in the 1960s, and “at the time that this construction project was envisioned,” it was outdated and in need of a renovation.

A study revealed that it was more beneficial to build a brand-new school next to the existing school than to renovate the current building. The plan was for the students ⁶⁸¹ to move into the new school after it was constructed, and then the old school would be torn down. Dr. Andes hoped that the students could occupy the new school building in September 2005, but they were not able to move in until the third week of November 2005. With regard to BEKA’s demands for payment, Dr. Andes was aware that BEKA had not been paid for the amounts it demanded, but he explained that payment did not occur because BEKA “was not recognizing [the Board’s] back charges.” Dr. Andes did not know how much money was left in the construction budget for the project, but he testified that some of the $1,856,000 that was originally set aside to pay BEKA was used to pay other contractors.

Joseph Duncan, a project manager for SPN, Inc., the construction management company responsible for the OCES project, testified regarding various PCOs submitted by BEKA. He explained that in June 2006 a meeting took place with representatives from the project architecture firm, the Board, the construction management company and BEKA, concerning outstanding PCOs on the project. As a result of that meeting, both Mr. Duncan and the project architect agreed that BEKA was entitled to $67,000, which was paid to BEKA in July 2006. Another meeting took place in December 2006.

In the spring of 2007, BEKA sent Mr. Duncan additional information about new PCOs, in addition to previously submitted change orders that were rewritten. Thomas Casey, an architect from the firm of Cochran, Stephenson & Donkervoet, was the project manager for the OCES project. He testified that his duties required him to “review the proposed change order and to see whether the work involved was actually an addition or potentially a subtraction from the contract and then to evaluate or help evaluate the cost of that proposed change order if it was justified.” He processed approximately 60 PCOs from BEKA. Mr. Casey testified that, after the December 2006 meeting, some of the disputes regarding payment for BEKA’s PCOs were resolved, but approximately $40,000-$50,000 remained unre ⁶⁸² solved.

In April 2007, Mr. Duncan received two to three large boxes of “revised and new change order requests” from BEKA. Mr. Casey was “amazed that [he] would be receiving a PCO so long after the completion of the project,” and he recommended that the bulk of BEKA’s claims be denied. In a letter to the Board dated September 11, 2007, he recommended that the Board pay PCOs in the amount of $85,474. He testified that, in his opinion, the Board of Education did not act in bad faith, nor did it act purposefully or negligently during the bidding process, and neither his firm, the construction management company, nor the Board caused BEKA to be unable to perform its duties under the contract.

Joseph Price, facilities planner for the Board, testified that he was the “point man” for the OCES project. As part of his duties, Mr. Price recorded all activities with the construction manager and the architect, reviewed requisitions, change orders and progress meeting minutes, prepared exhibits for the Board, updated the Superintendent once a month, and “generally monitor[ed] the progress of the work.” He reported to the Board about the progress of OCES once a month during the Board’s regularly scheduled meetings. According to Mr. Price, the Board still owed BEKA $505,487. Mr. Price testified that he did nothing to interfere with BEKA’s performance of its duties under the contract, nor did he observe other contractors interfering with BEKA’s work.

In rebuttal, BEKA recalled Mr. Reinhardt. He testified that the Board issued defective bid documents with the sequence of construction not included. Mi*. Reinhardt also opined that the action of the Board allowed other contractors on the project to interfere with BEKA’s ability to perform their work.

He was surprised that the Board characterized BEKA’s September 2007 claims as “untimely” because the Board had encouraged BEKA to submit their claims so they could be “reviewed and resolved.” In closing arguments, the parties explained their positions regarding the amount owed on the contract. BEKA. argued that the total amount the Board owed was $1,215,035.80. This amount was calculated based on $540,061.33 due under the ⁶⁸³ base contract, $795,062.36 due for PCOs, 4 minus a credit in the amount of $120,087.88 for work that was removed from BEKA’s scope of responsibility. Counsel then added $165,585.49 in prejudgment interest, and he argued that BEKA’s “total claim” was $1,380,622.30.

The Board’s figures, not surprisingly, were different. It argued that, based on the court’s earlier ruling that it could not pursue its recoupment and setoff credits, the amount it owed BEKA was $505,487. 5 The Board arrived at that figure by taking the initial contract sum, and agreed-upon change orders, which totaled $1,961,913, and subtracting the amount that it paid, $1,421,852, which left a balance due to BEKA of $540,061. Counsel added in $85,514 that was due for approved change orders, resulting in a balance due of $625,575. After subtracting the $120,088 credit that BEKA owed the Board for sewer and parking lot work that was removed from its scope of responsibility, the Board owed $505,487 under the contract.

The Board argued that $491,247 of proposed change ordei's sought by BEKA remained in dispute because: (1) they were not timely submitted; and (2) they were damages for delay claims that were prohibited by the contract. Finally, the Board argued that it had partial governmental immunity on the negligent misrepresentation claim. Immediately after the conclusion of closing arguments, the court issued its ruling from the bench as follows: Counsel, certainly we have fully aired the issue and I appreciate your advocacy on both sides, but here’s the way I see it. I’m disallowing any claim for prejudgment interest ⁶⁸⁴ which I’m going to do.

I see the claim as being $1,215,035 and I understand that the Board believes the proper amount is $505,487. There’s much to be said on both sides on what has been a very unhappy performance of a contract, and the public unfortunately has to pay the brunt of the cost of the contentious attitude of the Board in administering this money. I’m therefore going to compromise the claim and I’m going to allow $1,100,000 as the judgment against the County or the Board in final resolution of the claims and counterclaims. And that judgment will enter as of today and of course will draw interest from this point. [6] On October 21, 2008, the Board filed a Notice of Appeal.

On October 24, 2008, it filed in the circuit court a Motion to Stay Enforcement of Judgment, asserting that, as a board of education, it had sovereign immunity, which had been partially waived for claims less than $100,000, or the limits of its insurance. The Board stated that it did not have the power to tax or otherwise raise revenue, that there was no insurance coverage for the judgment entered against it, and that, other than the funds remaining in the construction budget, which was less than $75,000, it did not have funds or property to use for payment of the judgment, to post as security for a bond, or to pay into court to stay the judgment while the appeal was pending. The Board requested that the court stay enforcement of the judgment pending appeal. On November 12, 2008, BEKA filed an Opposition to the Board’s Motion to Stay Enforcement of Judgment, arguing ⁶⁸⁵ that the Board could not raise the defense of sovereign immunity in contract actions, and that the Board’s asserted financial condition should not preclude its responsibility to pay the judgment against it.

BEKA requested that the court require the Board to obtain a supersedeas bond in an amount sufficient to satisfy the judgment, interest, and costs. On November 17, 2008, the Board filed a reply to BEKA’s opposition, requesting that it be allowed to proceed with its appeal without posting a supersedeas bond. On November 24, 2008, the circuit court held a hearing. The court denied the Board’s motion, stating as follows: I think if you contract to build a school with the school board and then be told, I’m sorry, we don’t have any funds, you’re out of luck.

It’s just, to me, absurd. So the motion to stay enforcement of the judgment is denied and motion for a stay of judgment is denied. On December 4, 2008, after BEKA filed Requests for Issuance of Writ of Garnishment on Property other than Wages, 7 the Board filed in this Court a Motion to Stay Enforcement of Judgment Pending Appeal. The Board stated that it genuinely fear[ed] that should this Court deny the requested relief in the form of a stay of enforcement pending appeal, the citizens of Worcester County may well risk a cessation of instructional activities in its public schools, since one potential source of funds which [BEKA], without this Court’s intervention, may seek to seize is the Board’s teacher and staff payroll accounts.

The Board stated that, even though arguably there was a waiver of its sovereign immunity pursuant to Md.Code (2009 Repl.Vol.), § 12-201 of the State Government Article (“S.G.”), 8 “the judgment against the Board in this case is not legally ⁶⁸⁶ enforceable because funds have not been appropriated for the specific purpose of satisfying a money judgment, and the Board is not empowered to provide for such funds by taxation.” Additionally, the Board asserted that it “is without the autonomous authority to raise money to furnish a supersedeas bond,” arguing that “public policy dictates that the supersede-as bond requirement is not applicable to the Board in its capacity as a State agency.” The Board requested that this Court stay enforcement of the judgment pending appeal. On December 5, 2008, this Court ordered that enforcement of the judgment against the Board be stayed pending further order of this Court, and it ordered BEKA to show cause why the Board’s motion to stay should be denied in whole or- in part. On December 10, 2008, the Board supplemented its December 5, 2008, motion with an affidavit from the Superintendent of the Worcester County Public Schools, Dr. Jon Andes, which explained the Board’s contention “that there are no judgment-specific funds in the Board’s coffers.” 9 On December 15, 2008, BEKA filed an Opposition to the Board’s Motion to Stay Enforcement of Judgment Pending Appeal. BEKA argued that “this Court should require the Board to file a supersedeas bond or alternative security in order to maintain the status quo of the parties during the pendency of an appeal and to protect the judgment creditor from the possibility of loss from the delay in satisfaction of the judgment.” On December 19, 2008, this Court granted the Board’s Motion to Stay Enforcement of Judgment Pending Appeal on the condition that the Board file “with the Clerk of the Circuit Court for Worcester County by close of business on January 5, 2009, a letter [of] credit from a financial institution or a supersedeas bond in the amount of $1,100,000.00.” 10 On ⁶⁸⁷ January 6, 2009, the Board filed a Line with this Court, attaching a copy of the $1.1 million check from the County Commissioners of Worcester County that was to be deposited “in a Clerk of the Court interest-bearing account to stay enforcement of the judgment . .. pending the appeal of the judgment.” 11| On March 9, 2009, BEKA filed a motion to dismiss the Board’s appeal, arguing that “the Board [ ] failed to timely prepare its portion of the joint record extract” and “failed to file its brief,” as required by this Court’s briefing schedule and by the Maryland Rules.

On April 0, 2009, this Court denied BEKA’s motion. On June 22, 2009, BEKA filed another motion to dismiss the Board’s appeal, “due to the failure of the Board to submit a legally sufficient record extract.” The Board responded with a motion to strike BEKA’s motion to dismiss, arguing that it acted in good faith in negotiating the contents of the record extract, that BEKA demanded an overly-inclusive extract, and that the appeal should not be dismissed because this case “is one of great public importance” and the Board “substantially complied” with the rule regarding record extracts. On July 8, 2009, this Court denied BEKA’s motion to dismiss the appeal, without prejudice “to appellee’s right under Md. Rule 8-501(e) that if the record extract does not contain a part of the record that Appellee believes is material to the issues raised, then appellee may reproduce that part of the record as an appendix.” 11 ⁶⁸⁸ We shall include additional facts as necessary in our discussion of the issues raised on appeal. STANDARD OF REVIEW In a case 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.” Md. Rule 8—131(c). “Under the clearly erroneous standard, ‘we must consider the evidence in the light most favorable to the prevailing party and decide not whether the trial judge’s conclusions of fact were correct, but only whether they were supported by a preponderance of the evidence.’ ” Royal Inv. Group, LLC v. Wang, 183 Md.App. 406, 430 , 961 A.2d 665 (2008) (citations omitted). “When the trial court’s [decision] ‘involves an interpretation and application of Maryland statutory and case law, [the appellate court] must determine whether the lower court’s conclusions are legally correct ....’” Gebhardt & Smith LLP v. Md. Port Admin., 188 Md.App. 532, 564 , 982 A.2d 876 (2009) (quoting Hillsmere Shores Improvement Ass’n v. Singleton, 182 Md.App. 667, 690 , 959 A.2d 130 (2008)), cert. denied, 412 Md. 256 , 987 A.2d 16 (2010). “ ‘We make this determination de novo, without deference to the legal conclusions of the lower court.’ ” Id. DISCUSSION I. Sovereign Immunity The first issue involves the Board’s claim that it is entitled to the defense of sovereign immunity in this case. The Board argues that it is a State agency, and the doctrine of sovereign immunity protects State agencies against suits and judgments.

It acknowledges that sovereign immunity can be waived by the General Assembly and that, with respect to contract actions, the legislature “has enacted a rather broad statutory ⁶⁸⁹ waiver of sovereign immunity governing the State of Maryland, executive branches, and other instrumentalities.” See S.G. § 12-201(a). The Board contends, however, that S.G. § 12-201 (a) is not applicable to county boards of education. It argues that S.G. § 12-201 (a) applies to “the State, its officers, and its units,” but “[n]either Maryland statutory law nor Maryland common law have defined Maryland county boards of education as units of the Maryland State government.” According to the Board, the legislature has enacted a “more limited” waiver of sovereign immunity for boards of education. It cites to Md.Code (2006 Repl.Vol.), § 5-518(b) of the Courts and Judicial Proceedings Article (“C.J.P.”), which provides that “[aj county board of education ... may raise the defense of sovereign immunity to any amount claimed above the limits of its insurance policy or, if self-insured or a member of a pool described under § 4—105(c)(1)(ii) of the Education Article, above $100,000.” The Board argues that, “Igjiven the absence of any insurance to cover construction claims such as those asserted by [BEKA] in this case, the maximum amount for which sovereign immunity is waived under Section 5-518(c) is $100,000.” Going one step further, however, the Board argues that BEKA is not permitted to recover even $100,000.

It contends that, even though C.J.P. § 5-518(c) contains a partial waiver of sovereign immunity for claims up to $100,000, “[s]uch a waiver requires specific funds to satisfy the judgment or the agency against whom the judgment has been levied must have the power to raise judgment specific funds by taxation.” The Board argues that, “[b]eeause [it] does not have a judgment-specific fund and lacks the power to raise funds by taxation, even the limited $100,000 waiver from sovereign immunity ... provides no support for [BEKA’s] right to claim any amount or to execute on the judgment in the instant case.” 12 ⁶⁹⁰ BEKA, by contrast, argues that the Board is not entitled to the defense of sovereign immunity in contract actions, arguing that S.G. § 12-201(a) “expressly waived the immunity defense for the State and its [units], including the Board, in certain contract actions.” It states that “there can be no serious dispute that the Board is considered a unit of the State.” BEKA contends that the partial immunity found in C.J.P. § 5—518(b) is not applicable to the contract claims here because this statute “applies to insurable claims such as tort claims—not contract actions.” 13 BEKA further disputes the Board’s contention that the waiver of immunity is not supported by judgment-specific funds and a means to obtain them. BEKA states that “[t]he Board has paid into the Court’s registry sums equal to the amount to satisfy a judgment in the principal amount should such judgment be affirmed by this Court.” Thus, it asserts, “any aspect of the argument relating to the alleged insufficient funds should be dismissed as moot.” BEKA also argues that the Board has a means to obtain these funds, found in S.G. § 12-203, which “clearly and unambiguously provides for appropriation of funds for the satisfaction of judgments against the State and its instrumentalities.” ⁶⁹¹ The Board disagrees with BEKA’s argument that the action of the County Commissioners, in making funds available to satisfy the judgment, renders the Board’s sovereign immunity argument moot. It argues that the “posting of funds by a third party for the purpose of staving off garnishment proceedings initiated by BEKA, which would have shut down the Worcester County Public Schools in the middle of the instructional year, should not deprive the Board of the opportunity to raise an important legal issue.” Relying on its argument that it is not a unit of the State government, the Board maintains that the provision of the State Government Article that provides for the Governor to set aside judgment specific funds, S.G. § 12-203, is not applicable to a county board of education. The parties’ arguments regarding the issue of sovereign immunity have varied during the course of these proceedings. 14 That the parties did not make the precise arguments below that they make on appeal, however, does not limit the scope of our review.

The defense of sovereign immunity can be raised at any time, even “for the first time on appeal.” Dep’t of Pub. Safety & Corr. Servs. v. ARA Health Servs., 107 Md.App. 445, 459 , 668 A.2d 960 (1995) (citation omitted), affd, 344 Md. 85 , 685 A.2d 435 (1996). Accord State v. Sharafeldin, 382 Md. 129, 140 , 854 A.2d 1208 (2004) (“State agencies may not, on their own, waive sovereign immunity ‘either affirmatively or by failure to plead it.’”) (quoting Dep’t of Natural Res v. Welsh, 308 Md. 54, 60 , 521 A.2d 313 (1986)). ⁶⁹² The doctrine of sovereign immunity operates to “bar[] individuals from bringing actions against the State, thus protecting it from interference with governmental functions and preserving its control over its agencies and funds.” Condon v. State, 382 Md. 481, 492 , 632 A.2d 753 (1993).

Accord Stern v. Bd. of Regents, 380 Md. 691, 701 , 846 A.2d 996 (2004). The doctrine is “firmly embedded in Maryland law, long recognized as applicable in actions—contract, tort, or otherwise—against the State of Maryland, its officers, and its units,” Magnetti v. Univ. of Md., 402 Md. 548, 556 , 937 A.2d 219 (2007). When a governmental agency has availed itself of the doctrine of sovereign immunity, suit cannot be brought against it “ ‘unless the General Assembly has specifically waived the doctrine.’ ” Id. at 557 , 937 A.2d 219 (quoting Stem, 380 Md. at 701 , 846 A.2d 996 ). The Court of Appeals has set forth the following test in determining whether the doctrine of sovereign immunity applies in a particular case: “(1) whether the entity asserting immunity qualifies for its protection; and, if so, (2) whether the Legislature has waived immunity, either directly or by necessary implication, in a manner that would render the defense of immunity unavailable.” Stern, 380 Md. at 700-01 , 846 A.2d 996 (quoting ARA Health Servs., Inc. v. Dep’t of Pub.

Safety and Corr. Servs., 344 Md. 85, 92 , 685 A.2d 435 (1996)). In addition to this two-part test, the Court stated that analysis of a third factor is required: “Even where a statute specifically waives the doctrine, a suit may only be maintained where there are ‘funds available for the satisfaction of the judgment’ or the agency has been given the power ‘for the raising of funds necessary to satisfy recovery against it.’ ” Id. at 701, 846 A.2d 996 (quoting Univ. of Maryland v. Maas, 173 Md. 554, 559 , 197 A. 123 (1938)). The Court of Appeals recently reiterated that, not only must the Legislature authorize suits for damages, but there must also “ ‘be provision for the payment of judgments.’ ” Brooks v. Hous.

Auth. of Baltimore, 411 Md. 603, 615 , 984 A.2d 836 (2009) (quoting Kee v. State Highway Admin., 313 Md. 445, 455 , 545 A.2d 1312 ⁶⁹³ (1988)). We will proceed to address the factors in this three-part test. A. State Agency We start initially with the first factor, “whether the entity asserting immunity qualifies for its protection.” Stem, 380 Md. at 700 , 846 A.2d 996 . In other words, we must determine whether a county board of education is a State agency entitled to the defense of sovereign immunity.

This Court has described county boards of educations as “unusual creatures,” with a “peculiar hybrid nature,” noting that these boards have attributes of both county and State agencies. Dean v. Bd. of Educ. of Cecil County, 7. 1 Md.App. 92, 98 , 523 A.2d 1059 , cert. denied, 310 Md. 490 , 530 A.2d 272 (1987). In Chesapeake Charter, Inc. v. Anne Arundel County Bd. of Educ., 358 Md. 129, 135-36 , 747 A.2d 625 (2000), Judge Wilner, speaking for the Court of Appeals, explained the unique nature of county school boards and why they generally are considered to be State agencies: County school boards are creatures of the General Assembly. Section 8-103 of the Education Article (ED) creates such a board for each county, with limited authority to control educational matters that affect the county.

See ED § .(-101. In 13 counties, the members of the board are elected by the voters of the county (§ 3-114); in Baltimore City, the members of the board, other than a student member, are appointed jointly by the Governor and the Mayor of Baltimore (§ 3-108.1); in the other counties, the members are appointed by the Governor from among the residents of the county (§ 3-108))[ 15 ] The county school systems are funded in part by the State and in part by the counties. Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597 , 458 A.2d 758 (1983). Although in terms of their composition, jurisdiction, funding, and focus, they clearly ⁶⁹⁴ have a local flavor, the county school boards have consistently been regarded as State, rather than county, agencies.

County school boards are considered generally to be State agencies because (1) the public school system in Maryland is a comprehensive State-wide system, created by the General Assembly in conformance with the mandate in Article VIII, § 1 of the Maryland Constitution to establish throughout the State a thorough and efficient system of free public schools, (2) the county boards were created by the General Assembly as an integral part of that State system, (3) their mission is therefore to carry out a State, not a county, function, and (4) they are subject to extensive supervision by the State Board of Education in virtually every aspect of their operations that affects educational policy or the administration of the public schools in the county. Id. at 135-37, 747 A.2d 625 (footnote omitted) (some citations omitted). This Court and the Court of Appeals more recently have reaffirmed that a county board of education is a State agency entitled to governmental immunity. Bd. of Educ. of Baltimore County v. Zimmer-Rubert, 409 Md. 200, 206 , 973 A.2d 233 (2009) (citing cases in support of proposition that the Court of Appeals has “long considered” county school boards to be State agencies); Norville v. Anne Arundel County Bd. of Educ., 160 Md.App. 12, 62 , 862 A.2d 477 (2004) (board of education is an agency of the State for purposes of a suit filed under federal and State law), vacated on other grounds, 390 Md. 93 , 887 A.2d 1029 (2005).

Thus, the first factor in the test for assessing whether the doctrine of sovereign immunity applies, whether the entity asserting immunity qualifies for protection, is answered in the affirmative. B. Waiver by the General Assembly The next step is to determine “whether the Legislature has waived immunity, either directly or by necessary implication, in a manner that would render the defense of immunity unavailable.” Stern, 380 Md. at 700-01 , 846 A.2d 996 . When considering a waiver of sovereign immunity, the Maryland ⁶⁹⁵ appellate courts “have strictly construed such waivers in favor of the sovereign.” Zimmer-Rubert, 409 Md. at 212 , 973 A.2d 233 . Accord Stern, 380 Md. at 720, 846 A.2d 996 (appellate court must “construe legislative dilution of governmental immunity narrowly”).

Both parties agree that the General Assembly has waived, to some extent, the defense of sovereign immunity for county boards of education. They disagree, however, as to which statute waives the defense and the extent of the waiver. As indicated, BEKA contends that, pursuant to S.G. § 12-201, the General Assembly waived the defense of sovereign immunity in contract actions. The Board contends that S.G. § 12-201(a) is not applicable to county boards of education, but rather, the General Assembly enacted a “more limited” waiver of sovereign immunity for boards of education in C.J.P. § 5-518, waiving the defense for claims up to $100,000, but providing “absolute immunity for verdicts and judgments above $100,000.” BEKA argues, however, that C.J.P. § 5-518 applies only to insurable tort claims.

As explained below, we agree with BEKA that S.G. § 12-201 (a) is the controlling statute and that the partial waiver in C.J.P. § 5-518(b) is limited to tort actions. Thus, there has been a legislative waiver of a county board of education’s defense of sovereign immunity in contract actions. 16 Title 12 of the State Government Article addresses the liability of State agencies and the scope of the doctrine of sovereign immunity. It contains separate statutory provisions regarding tort and contract actions. S.G. § 12-201, enacted in ⁶⁹⁶ 1976 and entitled “Sovereign immunity defense barred,” is a waiver of the defense in contract actions.

It provides as follows: (a) In general— Except as otherwise expressly provided by a law of the State, the State, its officers, and its units may not raise the defense of sovereign immunity in a contract action, in a court of the State, based on a •written contract that an official or employee executed for the State or one of its units while the official or employee was acting within the scope of the authority of the official or employee. [ 17] S.G. § 12-104, subsequently enacted in 1981, provides for a waiver of immunity in tort actions. 18 C.J.P. § 5-518, entitled “Immunity—County boards of education,” specifically addresses waiver of the defense of sovereign immunity for county boards of education. Because this statute is more specific than the statutes contained in the State Government Article, it controls to the extent of any inconsistency. See Magnetti, 402 Md. at 566 , 937 A.2d 219 (“ ‘It is well settled that when two statutes, one general and one specific ... conflict, the specific statute will be regarded ⁶⁹⁷ as an exception to the general statute.’ ”) (quoting Maryland-Nat’l Capital Park and Planning Comm’n v. Anderson, 395 Md. 172, 194 , 909 A.2d 694 (2006)). The question here involves whether there is any inconsistency, i.e., does C.J.P. § 5-518 address solely insurable tort claims, as BEKA contends, or does it address both tort and contract claims, as the Board argues.

The specific waiver of immunity set forth in C.J.P. § 5-518 provides, in pertinent part, as follows: (b) Claims for more than $100,000.—A county board of education, described under Title 4, Subtitle 1 of the Education Article, may raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy or, if self-insured or a member of a pool described under § 4—105(c)(1)(ii) of the Education Article, above $100,000. [19] (c) Claims for $100,000 or less.—A county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less. The Board argues that this statute applies to “any claim” against a board of education, including contract claims. It contends that it “is a member of a self-insurance pool which provides no coverage for construction claims,” and therefore, “its maximum exposure in this case is $100,000.” BE KA disputes this contention. Tt argues that “the partial waiver of immunity imparted by § 5-518 applies to insurable claims such as tort claiins-not contract actions.” BEKA points to a Court of Appeals decision interpreting similar language applying to community colleges and holding that this type of waiver did not apply to contract claims because it “affects only those claims which would be covered by such a ‘comprehensive liability insurance’ policy.” Charles E. Brohawn & Bros.

Inc. v. Bd. of Trustees of Chesapeake College, 269 Md. 164, 171-72 , 304 A.2d 819 (1973). ⁶⁹⁸ In determining the scope of C.J.P. § 5-518, we must apply well-settled principles of statutory construction. These principles were set forth in Zimmer-Rubert, as follows: The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. See Collins v. State, 388 Md. 684, 688 , 861 A.2d 727, 730 (2004). Statutory construction begins -with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology.

Deville v. State, 383 Md. 217, 223 , 858 A.2d 484, 487 (2004). If statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as it is written. Collins, 383 Md. at 688-89 , 861 A.2d at 730 . “If there is no ambiguity in that language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends; we do not need to resort to the various, and sometimes inconsistent, external rules of construction, for ‘the Legislature is presumed to have meant what it said and said what it meant.’ ” Arundel Corp. v. Marie, 383 Md. 489, 502 , 860 A.2d 886, 894 (2004) (quoting Witte v. Azarian, 369 Md. 518, 525 , 801 A.2d 160, 165 (2002)). Nevertheless, we may resort to legislative history to ensure that our plain language interpretation is correct.

See Kramer v. Liberty Property, 408 Md. 1, 22 , 968 A.2d 120, 132 (2009). 409 Md. at 214-15 , 973 A.2d 233 . The ultimate goal is “ ‘to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by [the] particular provision Canaj v. Baker & Div. Phase III, 391 Md. 374, 403 , 893 A.2d 1067 (2006) (quoting Davis v. Slater, 383 Md. 599, 605 , 861 A.2d 78 (2004)). In Zimmer-Rubert, the Court of Appeals held that, by its “plain language, § 5-518(c) ... waives the defense of sovereign immunity ‘to any claim of $100,000 or less,’ ” stating that ⁶⁹⁹ the words “any claim cannot reasonably be read to exclude certain categories of claims.” Id. at 215, 973 A.2d 233 (quoting Zimmer-Rubert v. Bd. of Educ. of Baltimore County, 179 Md.App. 589, 612 , 947 A.2d 135 (2008)).

Accord Norville, 160 Md.App. at 70 , 862 A.2d 477 . The Court concluded that C.J.P. § 5-518(e) applied to “all claims, including those for personal injury and alleged employment law violations.’ ” 409 Md. at 216 , 973 A.2d 233 (emphasis added). The Board points to the above-cited language in Zimmer-Rubert in support of its contention that C.J.P. § 5-518 covers “any claim,” including contract claims. Although that argument appears persuasive at first glance, a closer analysis of the case reveals the fallacy in the Board’s analysis.

In Zimmer-Rubert, 409 Md. at 203 , 973 A.2d 233 , the Court addressed the applicability of C.J.P. § 5-518 in the context of a claim alleging age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). This type of claim involves personal injury. See Dobson v. E. Assoc. Coal Corp., 188 W.Va. 17 , 422 S.E.2d 494, 501 (1992) (discrimination claim is “a species of personal injury akin to tort”).

See also Newell v. Runnels, 407 Md. 578, 646 , 967 A.2d 729 (2009) (discussing tort claim based on termination of employment). Thus, the Court’s comment that “ ‘any claim’ cannot reasonably be read to exclude certain categories of claims,” Zimmer-Rubert, 409 Md. at 215 , 973 A.2d 233 , must be construed in the context of a tort related claim. The Court did not address in that case, or in any other case that we have found, whether C.J.P. § 5-518 applies to contract claims. In addressing that issue, we think that the statutory language is ambiguous.

Although the statute provides that the defense of sovereign immunity may be asserted for “any amount” above the limit of the Board’s insurance policy, and may not be raised for “any claim” less than $100,000, the statutory provisions are tied to the requirements of Md.Code (2008 RepLVol.), § 4-105 of the Education Article (“ED”), 20 ⁷⁰⁰ which requires county boards to carry comprehensive liability insurance or be self-insured for property or casualty risks. Comprehensive liability insurance generally covers claims for bodily injury and property damage, not breach of contract. See 43 Am.Jur. 2d. Insurance § 667 (2010) (“A comprehensive general liability policy’s sole purpose is to cover the risk that the insured’s goods, products, or work will cause bodily injury or damage to property”; it is “not a performance bond.”); Aetna Casualty & Surety Co. of America v. Deluxe Systems Inc., 711 So.2d 1293, 1297 (Fla.Dist.Ct.App.1998) (comprehensive liability insurance coverage provides protection for personal injury or property damage).

Thus, although the statute uses the words “any claim,” it does so in the context of liability insurance, which typically covers tort claims. ⁷⁰¹ To the extent that the statutory language is ambiguous, the appellate courts “ ‘endeavor to resolve that ambiguity by looking to the statute’s legislative history, case law, statutory purpose, as well as the structure of the statute.’ ” Brooks, 411 Md. at 621-22 , 984 A.2d 836 (quoting Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 571 , 948 A.2d 11 (2008)). As this Court recently stated: “When a statute can be interpreted in more than one way, the job of this Court is to resolve that ambiguity in light of the legislative intent, using all the resources and tools of statutory construction at our disposal. If the true legislative intent cannot readily be determined from the statutory language alone, however, we may, and often must, resort to other recognized indicia—among other things, the structure of the statute, including its title; how the statute relates to other laws; the legislative history, including the derivation of the statute, comments and explanations regarding it by authoritative sources during the legislative process, and amendments proposed or added to it; the general puipose behind the statute; and the relative rationality and legal effect of various competing constructions.” Hurd v. State, 190 Md.App. 479, 491 , 988 A.2d 1143 (2010) (quoting MAMSI Life & Health Ins. Co. v. Wu, 411 Md. 166, 176-77 , 983 A.2d 88 (2009)).

Our review of the legislative history indicates that when the predecessor to § 5-518 was enacted, it was not intended to waive the defense of sovereign immunity for county boards of education on contract claims. Rather, it was enacted to waive the defense in tort claims, to provide a remedy for students injured on school grounds. In 1971, a bill passed enacting new Section 56B to Article 77 of the Annotated Code of Maryland, (1969 Repl.Vol.), titled “Public Education,” subtitle “COUNTY BOARDS of Education” ... to require the several boards of education in the counties and Baltimore City to purchase ... COMPREHENSIVE LIABILITY IN ⁷⁰² SURANCE ... and to allow the boards of education to raise the defense of sovereign immunity TO ANY AMOUNT IN EXCESS OF the limit of liability. 1971 Md. Laws, Chap. 548.

As the Court of Appeals noted in Zimmer-Rubert, the initial bill required liability insurance for personal injury claims, but the statute ultimately enacted required county boards to purchase comprehensive liability insurance. 409 Md. at 215 , 973 A.2d 233 . The statute, as initially enacted in 1971, provided as follows: § 56B. Comprehensive liability insurance (a) Generally.—The county boards of education and the board of school commissioners of Baltimore City shall carry comprehensive liability insurance to protect the Board and its agents and employees. The purchase of such insurance shall be considered as an educational purpose and as a valid educational expense.

(b) Standards and guidelines for policies.—The State Board of Education shall adopt regulations setting up standards and guidelines for the policies including a minimum liability coverage, and the policies purchased under this section, after the adoption of these regulations, shall conform to them. (c) Self-insurance.—Any of the above boards of education shall be considered in compliance herein if they are self-insured under rules and regulations promulgated by the State Insurance Commissioner. Liability shall be limited to one hundred thousand dollars ($100,000) for each injury, the policy limits for this insurance shall not exceed one hundred thousand dollars ($100,000). (d) Defense of sovereign immunity.—Nothing in this section shall be construed as affecting the right of the various boards of education, on their own behalf, from raising the defense of sovereign immunity to any amount in excess of the limit of the limit of the liability.

Md.Code (1957,1971 Cum.Supp.), Art. 77 § 56B. Initially, we note that in subsection (c) the statute limited liability to $100,000 for each “injury.” That language is ⁷⁰³ consistent with an intent that the statute apply to tort, rather than contract, claims. Moreover, the circumstances leading to the enactment of the statute support a finding that it was intended to apply to tort claims. There is no official legislative history for this .1971 law because, at that time, the General Assembly did not preserve bill files.

See Conaway v. Deane, 401 Md. 219, 247 , 932 A.2d 571 (2007) (noting that “legislative bill files were not retained systematically by the General Assembly’s Standing Committees or the Department of Legislative Reference (now known as the Department of Legislative Services) until 1975”). There are, however, press reports that reveal that the bill was introduced in response to a catastrophic personal injury suffered by a student on school grounds. 21 See Id. at 247-48 , 932 A.2d 571 (noting that “archival newspaper accounts” may be helpful in determining legislative history for pre-1975 legislative action); In Re: Jason W., 378 Md. 596, 601 , 837 A.2d 168 (2003) (reviewing newspaper articles to determine intent of 1970 legislation when no official legislative history existed). Thus, the language of the statute as originally enacted, and the newspaper article indicating that the intent of the statute was to require counties to carry insurance to protect against claims for personal injury, supports a finding that § 5-518 applies only to tort claims. ⁷⁰⁴ Nothing in the subsequent legislative history suggests an intent to expand the scope of this limited waiver of the defense of sovereign immunity beyond tort claims. In 1972, the statute was amended to provide that the liability insurance that the county boards of education were required to purchase “shall not be less than one hundred thousand dollars ($100,-000) per occurrence.” 1972 Md. Laws, Chap. 507.

Subsection (d) was revised as follows: (d) Nothing in this section shall be construed as affecting the right of the various boards of education, on their own behalf, from raising the defense of sovereign immunity to any amount in excess of the limit of [liability] the policy OR IN EXCESS OF ONE HUNDRED THOUSAND DOLLARS ($100,000) IN THE CASE OF SELF-INSURANCE. In 1974, the General Assembly revised subsection (d) of § 56B. The statute was revised as follows: (D) THE SEVERAL BOARDS OF EDUCATION ON THEIR BEHALF MAY RAISE THE DEFENSE OF SOVEREIGN IMMUNITY TO ANY AMOUNT IN EXCESS OF THE LIMIT OF THE POLICY OR IN EXCESS OF $100,000 IN THE CASE OF SELF-INSURANCE. IN ANY CASE, THE SEVERAL BOARDS OR ANY BOARD OF EDUCATION MAY NOT RAISE THE DEFENSE OF SOVEREIGN IMMUNITY IN ANY CLAIM OF LESS THAN $100,000. 1974 Md. Laws, Chap. 792.

Thus, it was in 1974 that the “any claim” language was added to the statute. Documents in the bill file indicate that this 1974 change was “[f]or the purpose of restating in an affirmative manner those provisions regarding the defense of sovereign immunity as they apply to public education.” 1974 Md. Laws, Chap. 792. Nothing suggests that this revision was intended to change the scope of the waiver of the defense of sovereign immunity. In 1978, this section was moved to the Education Article.

ED § 4-105, entitled “Comprehensive liability insurance; defense of sovereign immunity,” provided that the county board ⁷⁰⁵ “shall carry comprehensive liability insurance,” with a “minimum liability coverage of not less than $100,000 for each occurrence,” and provided that a board could elect to be self-insured. Subsection (d) provided as follows: Defense of sovereign immunity.—(1) A county board may raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy or if self-insured, above $100,000. (2) A county board may not raise the defense of sovereign immunity to any claim of $100,000 or less. Md.Code (1978), ED § 4-105(d).

In 1990, all of Maryland’s immunity provisions were consolidated in the Courts and Judicial Proceedings Article. See Houston v. Safeway Stores, Inc., 846 Md. 508 , 697 A.2d 851 (1997). The purpose of this legislation was described as follows: This bill consolidates the provisions in the Annotated Code of Maryland that concern immunity from liability, limitations on liability and prohibited actions. It makes no substantive changes in the law.

Its purpose instead is to consolidate the current provisions on immunities, limitations on liability and other prohibited actions in the Courts and Judicial Proceedings Article, for ease of reference. Bill Analysis of H.B. 206 (1990) (emphasis added). At that time, the statutory language that currently is found in C.J.P. § 5-518(c) and (d) was enacted. 22 Our review of the legislative history of C.J.P. § 5-518 leads us to conclude that the intent of the General Assembly in enacting this statute was to require county boards of education to carry liability insurance to protect against claims of bodily injury and property damage, and to waive the defense of sovereign immunity to the extent of the board’s insurance, or if self-insured, to $100,000. Nothing in the legislative ⁷⁰⁶ history indicates an intent to waive the defense of sovereign immunity for contract claims, as opposed to tort claims.

Indeed, although the precise issue raised in this case has not previously been decided by the Maryland appellate courts, there is precedent to support the position that § 5-518 applies to tort, and not contractual claims. In Brohawn, 269 Md. 164 , 304 A.2d 819 , the Court of Appeals interpreted a provision similar to § 5-518 and found that it did not apply to contract claims. Id. at 171-72, 304 A.2d 819 . In that case, the Court addressed a 1971 law providing that a board of trustees of a community or regional community college “shall carry comprehensive liability insurance to protect the board, its agents and employees,” and further providing that nothing in that section was to be construed as affecting the right of the boards of trustees from raising the defense of sovereign immunity “to any amount in excess of the limit of the policy or in the excess of one hundred thousand dollars ($100,000) in the case of self-insurance.” Id. at 171 , 304 A.2d 819 .

The Court of Appeals stated: “It is clear to us that this is only a partial waiver of sovereign immunity,” and “affects only those claims which would be covered by such a ‘comprehensive liability insurance’ policy.” Id. at 171-72 , 304 A.2d 819 . Accordingly, the Court held that this statute did not apply to the breach of contract claim in that case. Id. The Court in Brohawn was construing a statute waiving sovereign immunity for the board of a community college, which statute was enacted at the same time as the statute governing county boards of education and contained virtually the same language.

The Court’s conclusion that the language used constituted a waiver of sovereign immunity only for tort claims, and not contractual claims, is equally applicable here. 23 ⁷⁰⁷ Accordingly, we hold, based on the Court of Appeals’ prior construction of language similar to that found in C.J.P. § 5-518, and the clear legislative intent of the General Assembly in enacting the statute, that § 5-518 is a legislative waiver of the defense of sovereign immunity for a county board of education only with respect to tort claims. It is not a legislative waiver of the defense for contract claims. Thus, the language of § 5-5.18, limiting the liability of a self-insured board of education to $100,000, does not apply to BEKA’s contract claims against the Board. 24 S.G. § 12-201(a) We next address whether, as BEKA contends, S.G. § 12-201(a) constitutes a legislative waiver of the Board’s sovereign immunity regarding its contract claims. The Board argues that § 12-201 (a) does not apply to county boards of education.

Although acknowledging that these boards have been characterized as state agencies, the Board contends that they are not units of the Maryland State government. We are not persuaded. The issue whether to waive sovereign immunity for the State and its agencies was “the subject of considerable study by the Legislature in the mid-1970[s].” Sharafeldin, 382 Md. at 138 , 854 A.2d 1208 . Bills to waive immunity in breach of contract actions were passed in 1974 and 1975 but were vetoed by the Governor, who preferred to await the result of a comprehensive study of the matter by a gubernatorial Commission that had been created to examine the issue.

In an interim report made in February, 1976, the Commission recommended a conditional waiver of immunity in contract actions, and that report served as the basis for the enactment of what is now ⁷⁰⁸ codified in SG §§ 12-201 and 12-202. See 1976 Md. Laws, ch. 450. Id. The ultimate decision to enact the 1976 statute was predicated on a belief “that there exists a moral obligation on the part of any contracting party, including the State or its political subdivisions, to fulfill the obligations of a contract.” Magnetti, 402 Md. at 562 n. 6, 937 A.2d 219 (quoting 1976 Md. Laws, Ch. 450).

The statute, as initially enacted in 1976, waived the defense of sovereign immunity for the State “and every officer, department, agency, board, commission or other unit of State government.” Md.Code (1976 Cumm. Supp.), Art. 41, § 10A. When the statute was recodified in the State Government Article in 1984, the statute was revised, providing that it applied to “the State its officers and its units.” Md.Code (1984), S.G. § 12-202(a). 25 According to the Report on Senate Bill 50, issued on January 27, 1984, the reason for this change was as follows: The present law contains numerous lists such as “departments, boards, commissions and other units” or uses terms such as “State agencies” to encompass the listed entities. Throughout the State Government Article, the word “unit” is substituted as a general term for a governmental organization.

The statute included “new language derived without substantive change.” Revisor’s Note, 1984 Md. Laws, Chap. 284. Accordingly, the word “unit” in what is now S.G. § 12-201 (a) encompasses entities deemed to be State agencies. And, as discussed, supra, county boards of education generally are considered to be State agencies. The Board argues, however, that, given the unique nature of county boards of education, they are not “units” of State government for purposes of S.G. § 12-201(a).

The Board points to Chesapeake Charter, 358 Md. at 145-46 , 747 A.2d ⁷⁰⁹ 625, where the Court of Appeals held that county boards were not a “unit” under State procurement law. In that case, the Court of Appeals addressed a procurement dispute between school bus contractors and the Anne Arundel County Board of Education. Id. at 131 , 747 A.2d 625 . The issue presented was whether the procurement of services by a county board of education was subject to the State’s General Procurement Laws, which applied to “each expenditure by a unit under a procurement contract.” Id. at 134 , 747 A.2d 625 .

The Court stated that, “although the county boards are generally regarded as State agencies because they are part of the State public education system, are subject to extensive supervision and control by the State Board of Education, and exercise a State function, from a budgetary and structural perspective, they are local in character.” Id. at 139 , 747 A.2d 625 . The Court held that, for structural or budgetary purposes, county boards of education were not considered “as units within the Executive Branch of the State government,” id. at 137 , 747 A.2d 625 , and therefore, a county school board was not a “unit” subject to the General Procurement Law. Id. at 145 , 747 A.2d 625 . As this Court stated in Norville, 160 Md.App. at 58-59 , 862 A.2d 477 , the Court in Chesapeake Charter “ ‘recognized only a limited exception with respect to budgetary matters and procurement.’ ” It did not change the principle that, generally, a county board of education is a State agency.

Id. Accordingly, we hold that, in the context of this case, the Board is a “unit” of the State pursuant to S.G. § 12-201, and this statute waives its right to the defense of sovereign immunity in contract actions. 26 Necessary Funds to Satisfy Judgment Having found a legislative waiver of the doctrine of sovereign immunity with respect to contract claims, we turn to the third step, whether there are “ ‘funds available for the ⁷¹⁰ satisfaction of the judgment’ or the agency has been given the power ‘for the raising of funds necessary to satisfy recovery against it.’ ” Stern, 380 Md. at 701 , 846 A.2d 996 (quoting Maas, 173 Md. at 559 , 197 A. 123 ). As indicated, not only must the General Assembly authorize suit, but “there must be provision for the payment of judgments.” Brooks, 411 Md. at 615 , 984 A.2d 836 (quoting Kee, 313 Md. at 455 , 545 A.2d 1312 ). The burden of proving the availability of funds to satisfy the judgment is on the party seeking to show a waiver of the defense of sovereign immunity, in this case, BEKA.

See Stern, 380 Md. at 712 . The Board contends that it does not have a judgment specific fund to pay the million dollar judgment against it, and it lacks the power to raise funds by taxation. See Zimmer-Rubert, 179 Md.App. at 602 , 947 A.2d 135 (“county boards have no independent taxing authority.”). Accordingly, the Board argues, “there was no waiver of the Board’s sovereign immunity in this case.” BEKA disputes the contention that the waiver is not supported by judgment specific funds and the means to obtain them, for two reasons.

First, BEKA argues that the waiver of sovereign immunity for contract actions in S.G. § 12-201 was accompanied by a mechanism for appropriation of funds to satisfy a final judgment. Second, BEKA contends that the County Commissioners of Worcester County paid into the court’s registry funds to satisfy the 1.1 million dollar judgment, and therefore, it contends that “the Board’s argument that no judgment-specific funds are available is moot.” We address first the argument that the General Assembly provided a mechanism for appropriation of funds to satisfy a judgment on the contract claims in this case. S.G. § 12-203, entitled “Budget requests to satisfy judgments,” provides: “To carry out this subtitle, the Governor shall include in the budget bill money that is adequate to satisfy a final judgment that, after the exhaustion of the rights of appeal, is rendered against the State or any of its officers or units.” To be sure, this provision generally would satisfy the ⁷¹¹ funding requirement for State agencies. As indicated, however, school boards are “unusual,” “hybrid” agencies.

See Dean, 71 Md.App. at 98 , 523 A.2d 1059 . These boards, while State agencies for most purposes, “are not normally regarded for structural or budgetary purposes, as units within the Executive Branch of the State government.” Chesapeake Charter, 358 Md. at 137 , 747 A.2d 625 . In Chesapeake Charter , the Court of Appeals explained that, while the State provides funding for county school boards, it does not give the funds directly to the school boards, and the boards are subject to the county, not State, budget process: As we indicated, the State currently provides approximately 42% of the current operating revenues of the county boards. [27] Most of those funds are appropriated by the General Assembly to the State Department of Education for pass-through to the county boards, either in conformance with the basic current expense sharing formula set forth in ED § 5-202 or pursuant to other State aid provisions in title 5 of that article! ]. • • • None of the major appropriations for operating expenses are made directly by the General As sembly to the