Clark v. O'MALLEY

GRAEFF, J. This appeal arises from a dispute between appellant, Kevin P. Clark, the former Police Commissioner for Baltimore City, and appellees, the Honorable Martin O’Malley, the former Mayor of Baltimore City (“Mayor”), and the Mayor and City Council of Baltimore (“City”). 1 The dispute centers on the ¹⁹⁸ Mayor’s actions in terminating Mr. Clark’s employment on November 10, 2004. Substantial litigation has ensued since that time. Shortly after Mr. Clark was terminated, he filed in the Circuit Court for Baltimore City a complaint, and a first amended complaint, for declaratory and injunctive relief. Mr. Clark requested: (1) a declaration that the Mayor’s actions in terminating his employment were unlawful; (2) reinstatement to his position as Police Commissioner; and (3) compensatory and punitive damages.

The circuit court granted appellees’ motion for summary judgment, concluding that the Mayor properly terminated Mr. Clark, without cause, pursuant to a Memorandum of Understanding (“MOU”) signed by the parties. Mr. Clark appealed. In Clark v. O’Malley, 169 Md.App. 408, 439 , 901 A.2d 279 (2006) (“Clark /”), this Court reversed the circuit court’s order, holding that the Mayor could remove the Police Commissioner only for cause as set out by Baltimore City Public Local Laws (“P.L.L.”), § 16-5(e). This Court held that the MOU, which provided that either party could terminate the employment contract by giving 45 days written notice, expanded “the Mayor’s authority beyond that granted by the General Assembly,” and that provision, therefore, was invalid.

Id. at 438, 901 A.2d 279 . Thus, we held that summary judgment on this ground was improper, and we remanded the case to the circuit court to address other defenses raised by appellees. The Court of Appeals affirmed this Court’s decision in Mayor & City Council v. Clark, 404 Md. 13, 33 , 944 A.2d 1122 (2008) (“Clark II ”). The Court of Appeals agreed that “[t]he removal power, as articulated in § 16-5(e) ... is not modifiable by a MOU,” and it held that the language in the MOU here, which allowed either party to terminate the contract without cause, conflicted with P.L.L. § 16-5(e) and was unenforceable.

Id. ¹⁹⁹ Mr. Clark then filed in the circuit court a Motion for Writ of Mandamus or Injunction For Reinstatement to Office Forthwith. On June 17, 2008, the Honorable Carol E. Smith denied the motion for reinstatement. On July 15, 2008, the Honorable Albert J. Matricciani, Jr. granted appellees’ motion for summary judgment on the remaining counts of the complaint. Judge Matricciani then denied as moot a motion to intervene filed by Natasha Clark, Mr. Clark’s wife, based on her “interest in protecting the confidentiality” of court records that appellees sought to have introduced into evidence.

Mr. Clark and Ms. Clark filed separate appeals. Mr. Clark presents the following issues for our review, which we rephrased as follows: 1. Did the circuit court err in denying Mr. Clark’s request for reinstatement to the position of Police Commissioner? 2. In light of the Court of Appeals decision that Mr. Clark’s employment could not properly be terminated without cause, did the circuit court err in denying Mr. Clark’s motion for partial summary judgment on the issue of liability? 3.

Did the circuit court err in granting appellees’ motion for summary judgment on the ground that, pursuant to the liquidated damages clause in the MOU, Mr Clark had already received the damages to which he was entitled? Ms. Clark presents the following issue for our review: Did the circuit court err in denying Ms. Clark’s motion to intervene? For the reasons set forth below, we shall affirm the judgment of the circuit court with respect to Mr. Clark. In light of that disposition, we shall dismiss Ms. Clark’s appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND In 2003, Mr. Clark was appointed Police Commissioner of Baltimore City by the Mayor and confirmed by the City ²⁰⁰ Council. In February 2003, prior to his confirmation, Mr. Clark and the Mayor executed a MOU in which Mr. Clark agreed “to serve the remaining term of the last Commissioner until June 30, 2008,” for which he would receive a salary of $150,000 per year. The MOU provided three ways in which Mr. Clark’s employment could be terminated. First, he could be terminated pursuant to P.L.L. § 16-5(e), which provided that “[t]he Police Commissioner is subject to removal by the Mayor for official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness.... ” Second, Mr. Clark could be terminated for “just cause,” defined in the MOU as (1) Gross dereliction of duty; as to any one incident or series of conduct.

(2) Illegal use of intoxicants or drugs; or (3) Indictment of a felony or any other crime involving moral turpitude or theft. Third, the MOU provided that either party could terminate the employment agreement at any time, ie., without cause, by giving 45 days written notice. With respect to termination without cause, § 12 of the MOU provided: SECTION 12 RIGHT TO TERMINATE WITHOUT CAUSE Either party may terminate this contract at any time, by giving forty-five (45) days prior written notice to the other. Notwithstanding the above sentence the provisions of Section 2B remain in force.

Section 2.B of the MOU set forth the compensation due to Mr. Clark if he was terminated “for any reason other than for just cause”: If Clark is willing and able to perform employment duties under this Agreement and the employment of Clark is (1) terminated in the Initial Term by City for any reason other than for just cause as defined in Paragraph 2.A.; or (2) in the event Clark is forced to resign following a ²⁰¹ formal or informal suggestion by the Mayor that he resign; ... or (4) in the event, for any reason whatsoever other than for just cause as above defined the Mayor does not reappoint and the Council confirm the reappointment of Clark to a full six-year term immediately following the Initial Term, City agrees to pay Clark a lump sum payment, as and for additional compensation/severance, equal to six (6) months aggregate salary, including retirement benefits calculated as the employer’s share of retirement benefits at the time of termination or non-reappointment as defined herein. Clark shall also be fully compensated for any accrued sick leave, vacation, compensatory time and any other accrued benefits at the time of termination or failure of reappointment. Should Clark not be reappointed or terminated without just cause, Clark agrees that the additional compensation/severance lump sum payment set out above shall satisfy all obligations City has to Clark as a result of the termination/non-reappointment. (Emphasis added).

Pursuant to this provision in the contract, on November 10, 2004, the City Solicitor hand-delivered a letter to Mr. Clark’s counsel, informing Mr. Clark that his employment would terminate in 45 days. The letter advised, in part: This notice is sent on behalf of the Mayor and City Council of Baltimore (the “City”) pursuant to Sections 12 and 13 of the Memorandum of Understanding (“MOU”) between you and the City dated February 19, 2008. This notice shall serve as the City’s 45-day notice of termination of your employment. Thus, your employment shall terminate 45 days from today.

However, as the Mayor announced this morning, you have been relieved of all official duties as of 8:30 a.m., November 10, 2004, and therefore, your further access, if any, to Police Department facilities, equipment, or documents will be subject to the specific, prior authorization of Acting or Interim Police Commissioner Hamm. ²⁰² The City will begin immediately to do a calculation of the salary and benefits to which you may be due under the February 19 MOU and will advise you of the details once appropriate calculations are made. For the next 45 days, through late December 2004, the City paid Mr. Clark, pursuant to the MOU, his biweekly salary of $5,769.24, minus deductions. Moreover, on January 25, 2005, pursuant to the MOU, the City sent Mr. Clark a check for $49,318.76, “reflecting Mr. Clark’s aggregate salary for six months ($75,000), minus deductions.” The next day, the City sent Mr. Clark another check for $8,513.22, for “unused vacation time and comp time in the amount of $ 13,269.25, minus deductions.” 2 A Mr. Clark’s First Lawsuit in State Court On November 16, 2004, Mr. Clark filed in the Circuit Court for Baltimore City a Verified Complaint for Declaratory and Injunctive Relief against the Mayor. Mr. Clark subsequently filed a First Amended Complaint for Declaratory and Injunctive Relief, which added the Mayor and City Council of Baltimore as an additional defendant and included ten counts.

Count I alleged that the Mayor’s action in terminating him was unlawful and in violation of P.L.L. § 16-5(e). Mr. Clark requested a declaration that the Mayor’s actions were unlawful and injunctive relief reinstating him to office. Count II requested a declaratory judgment that the Mayor’s acts in relieving Mr. Clark of his command were illegal and that Mr. Clark “is the only person entitled by law to serve” as Police Commissioner “until his term of office expires in June ²⁰³ 2008.. .. ” Counts III, IV, and V requested injunctive relief, a writ of quo warranto, and a writ of mandamus compelling appellees to reinstate Mr. Clark as Police Commissioner. Count VI requested the court to issue a writ of certiorari “to review” the Mayor’s actions.

Count VII alleged that the Mayor “knowingly, willfully and maliciously violated [Mr. Clark’s] procedural due process rights under Article 24 by summarily relieving [Mr. Clark] of his command ... and terminating him without affording him prior notice.... ” Mr. Clark requested declaratory and injunctive relief as well as compensatory and punitive damages. Counts VIII, IX, and X alleged that the Mayor breached the terms of the MOU by terminating Mr. Clark without “notice, a specification of charges and a pretermination hearing,” and without identifying the “just cause” as enumerated in § 2.A of the MOU. On November 17, 2004, Mr. Clark filed a Motion for Injunctive Relief and an Application for a Temporary Restraining Order, requesting that the circuit court enjoin appellees from relieving Mr. Clark of his duties as Police Commissioner. The next day, following a hearing, the circuit court denied Mr. Clark’s request for a temporary restraining order.

On November 19, 2004, Mr. Clark noted an interlocutory appeal to this Court pursuant to Md.Code (2002 RepLVol.), § 12-303(3)(iii) of the Courts and Judicial Proceedings Article. That same day, Mr. Clark sent a letter to the Honorable Joseph H.H. Kaplan, in the circuit court, requesting that the court “issue an injunction pending appeal on the same terms and conditions that were sought in Plaintiffs Application for a Temporary Restraining Order.” The circuit court denied Mr. Clark’s Motion for Injunction Pending Appeal, reasoning that: (1) “Plaintiff has suffered no irreparable harm in that he is being paid his full salary for approximately the next six months in accordance with the [MOU]”; (2) “[i]t is less than likely that Plaintiff will be successful on the merits”; and (3) “[t]he public interest would in no way be served by Plaintiffs reinstatement as Police Commissioner of Baltimore City.” On December 9, 2004, Mr. Clark voluntarily dismissed his interlocutory appeal. ²⁰⁴ On December 13, 2004, appellees responded to Mr. Clark’s complaint by filing a Motion to Dismiss or, in the Alternative, for Summary Judgment. Appellees argued that, “[bjecause the language of Mr. Clark’s employment contract unambiguously provides for termination without cause, Clark has no cause of action against the Mayor.” The circuit court denied appellees’ motion, concluding that there was a genuine dispute of material fact regarding notice: [TJhere does, indeed, exist a genuine dispute of material fact; one being, just off the top of my head, the issue of notice that was raised in the papers in the court file. For that reason, as well as information obtained in the file, the Court is going to deny the Motion to Dismiss at this time and the Motion for Summary Judgment.

On February 10, 2005, appellees filed another motion for summary judgment. Appellees argued that the City gave the notice required by the contract, provided Mr. Clark with the monies that he was due under the contract, and that the contract contained a provision stating that payment of these monies “shall satisfy all obligations the City has to Clark” as a result of the termination. On April 4, 2005, the circuit court granted appellees’ motion for summary judgment. Because the amended complaint included a request for a declaratory judgment, the court issued the following findings: 2.

The Memorandum of Understanding between Clark and City is a valid and binding contract. 3. Section 12 of the Memorandum of Understanding unambiguously provides both parties with a right to terminate without cause upon giving forty-five days prior written notice to the other. 4. Section 12 is a valid and binding provision of the Memorandum of Understanding. 5. On November 10, 2004, the defendants sent notice to Clark, through counsel, that Clark’s employment as Police Commissioner would be terminated without cause ²⁰⁵ in forty-five days pursuant to Section 12 of the Memorandum of Understanding. 6.

Clark received the forty-five days prior notice of termination to which he was entitled. 7. The City properly exercised its right to terminate Clark’s employment without cause pursuant to Section 12 of the Memorandum of Understanding. Mr. Clark noted an appeal from the circuit court’s order. B. This Court’s Decision on Appeal On June 30, 2006, in Clark I, this Court reversed the circuit court’s order, concluding that, based on P.L.L. § 16-5(e), “the Mayor may only remove the Commissioner ‘for official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness, in the manner provided by law in the case of civil officers.’ ” 169 Md.App. at 436-37 , 901 A.2d 279 .

This Court held that the MOU, which provided that either party could terminate the employment contract by giving 45 days written notice, expanded “the Mayor’s removal authority beyond that granted by the General Assembly,” and that provision, therefore, was invalid. Id. at 438 , 901 A.2d 279 . The Court of Appeals granted appellees’ Petition for a Writ of Certiorari on October 16, 2006. Baltimore v. Clark, 395 Md. 56 , 909 A.2d 259 (2006).

C. Mr. Clark’s Second Lawsuit in Federal Court On November 9, 2007, while his case was pending in the Court of Appeals, Mr. Clark and two of his chief officers filed suit in the United States District Court for the District of Maryland. Francis v. Giacomelli, No. WDQ-07-3034, slip op. at 1-2 (D.Md. July 16, 2008). The plaintiffs sued the Honorable Martin O’Malley, former City Solicitor Ralph Tyler, and several Baltimore City police officers, who, according to the plaintiffs’ complaint in federal court, “detained” Clark and his ²⁰⁶ two chief officers, ordered them to “surrender their weapons, badges, and identification cards,” and searched their desks and file cabinets. Id.

The plaintiffs alleged that the defendants: (1) violated the Fourth and Fourteenth Amendments to the United States Constitution, in depriving them of the right against illegal searches and seizures; (2) violated 42 U.S.C. § 1981 by terminating them from their positions in the police department based on their race; (3) deprived them of property interests without due process, in violation of the Fourteenth Amendment, by terminating them without notice; and (4) violated 42 U.S.C. § 1985 by a conspiracy to deprive them of their civil rights. D. Court of Appeals Decision On March 20, 2008, in Clark II, the Court of Appeals affirmed this Court’s decision that the contractual language in the MOU, which authorized the Mayor to terminate the Police Commissioner without cause, was invalid. 404 Md. at 33 , 944 A.2d 1122 . The Court stated that the General Assembly sets the public policy of the State, and the General Assembly provided, in P.L.L. § 16—5(e), the exclusive reasons for which the Police Commissioner is “subject to removal by the Mayor.” Id. at 34, 944 A.2d 1122 . “Section 16-5(e) simply does not contemplate that there will be other reasons for termination, and thus does not permit the Mayor to add any, i.e. extend its reach.” Id. The Court held: The removal power, as articulated in § 16—5(e), we hold, is not modifiable by a MOU, and, in particular, the contractual language at issue in the case sub judice.

In that regard, we reiterate, “a contract conflicting with public policy set forth in a statute is invalid to the extent of the conflict between the contract and that policy.” Medex v. McCabe, 372 Md. 28, 39 , 811 A.2d 297, 304 (2002). See also State Farm Mut. Auto. Ins.

Co. v. Nationwide Mut. Ins. Co., 307 Md. 631, 643 , 516 A.2d 586, 592 (1986) (holding that a contractual provision that violates public policy is invalid, but only to the ²⁰⁷ extent of conflict between stated public policy and contractual provision). Thus, because the provision of the MOU that states that “[e]ither party may terminate this contract at any time, by giving forty-five (45) days prior written notice to the other,” without need to provide cause, conflicts with § 16-5(e) of the Public Local Laws, that provision, pursuant to which the Mayor acted to terminate Clark, is unenforceable.

Id. at 33, 944 A.2d 1122 . E. Proceedings in State Court on Remand On May 9, 2008, Mr. Clark filed in the circuit court a Motion for a Writ of Mandamus or Injunction for Reinstatement to Office Forthwith. He argued that “[t]he Court of Appeals of Maryland ruled unanimously in [Clark II ] that Plaintiff was removed from the Office of Police Commissioner of Baltimore City illegally by Mayor O’Malley.” Therefore, Mr. Clark argued, “[a]s a result of the decision of the Court of Appeals in [Clark II], Plaintiff unquestionably is entitled to a Writ of Mandamus or an Injunction reinstating him to the Office of Police Commissioner of Baltimore City.” On May 27, 2008, appellees filed an opposition to Mr. Clark’s Motion for a Writ of Mandamus or Injunction for Reinstatement to Office Forthwith and a motion for summary judgment. Appellees argued that Mr. Clark had been “rendered ineffective by a public scandal” resulting from a “ ‘widely publicized domestic dispute’ that occurred on May 15, 2004.” They asserted that this “domestic dispute' became a distraction to the real work of the Baltimore Police Department (“BPD”) as Clark insisted on launching an active four month investigation’ of his own command staff regarding their handling of the incident.” Appellees argued that “termination without cause, pursuant to § 12 of the MOU, offered the method of removing Clark that was least disruptive to the mission of the BPD and in the interest of the citizens of Baltimore.” Acknowledging that, based on the Court of Ap ²⁰⁸ peals decision in Clark II, the “termination may have been accomplished by a technically flawed method,” they argued, for the reasons set forth below, that judgment should be granted in their favor on all counts.

With respect to Mr. Clark’s request that the court reinstate him to office, appellees argued that this claim should be denied because Governor O’Malley was no longer the Mayor of Baltimore City, and “Governor O’Malley cannot be ordered to reinstate Clark to office under any of [the] theories alleged.” Appellees further argued that Mr. Clark failed to name necessary parties as defendants to this case, including current Mayor Sheila Dixon, former Interim Police Commissioner Hamm, and current Police Commissioner Bealefeld. Moreover, appellees argued that reinstating Mr. Clark is “patently contrary to the public interest” and doing so “would force [Mr. Clark] upon the [Baltimore Police Department] and the citizens of Baltimore, whose duly elected Mayor recently appointed a well-received and successful Police Commissioner.” With respect to the claims requesting compensatory damages, appellees argued that, pursuant to the liquidated damages clause in the contract, “[t]he City’s payment of the amount specified satisfied all of its obligations to Clark arising out of the termination.” Finally, with respect to Mr. Clark’s claim that the Mayor violated his due process rights, appellees argued that Mr. Clark waived any claims for damages by “entering into the MOU that expressly permitted his removal from office without cause and by explicitly agreeing that if he was terminated for any reason other than cause, as defined under the contract, he would be limited to the liquidated damages set forth in Section 2B of his contract.” On June 6, 2008, appellees filed a motion seeking to seal evidence submitted in support of appellees’ opposition to Mr. Clark’s Motion for a Writ of Mandamus or Injunction for Reinstatement to Office Forthwith. The evidence sought to be sealed was an “investigative summary prepared by the Howard County Police Department ... following its investigation into Kevin P. Clark’s May 15, 2004 domestic dispute, as ²⁰⁹ well as additional New York state court records that were requested as part of the Howard County investigation.” 3 Mr. Clark filed an opposition to review of these records, arguing that “his New York Family Court records are here in Baltimore illegally.” He contended that the records “were either stolen or obtained under false pretenses” because “[t]he only manner they can be obtained is pursuant to a judicial order of the New York Family Court” and “|n]o such order was ever issued.” On July 28, 2008, the circuit court granted appellees’ motion, and it ordered the records sealed. On June 9, 2008, Mr. Clark filed a partial motion for summary judgment, arguing that the Court of Appeals found that he was unlawfully terminated, which necessitated a finding in his favor “on the issue of liability as a matter of law.” He argued that “[t]he only issue that remains to be decided by a jury in this case is the issue of damages,” and therefore, the court should grant his motion for partial summary judgment.

On June 17, 2008, the Honorable Carol E. Smith denied Mr. Clark’s request to reinstate him as Police Commissioner. The court rejected Mr. Clark’s argument that the decision in Clark II required reinstatement, noting that the opinion addressed only the legality of the termination provision in the MOU. Moreover, Judge Smith noted, this Court’s decision, which was affirmed by the Court of Appeals, remanded the case to consider additional questions, such as “waiver, estoppel, and damages.” The circuit court went on to find that a writ of mandamus to reinstate Mr. Clark as Police Commissioner was not justified in this case, for several reasons. First, the current Mayor, Sheila Dixon, who by law was the only person authorized to ²¹⁰ appoint Mr. Clark to the position of Police Commissioner, “ha[d] not been named, added as a party, or had the opportunity to raise any issues” for the court’s consideration.

Second, the court explained: [I]n an action for mandamus challenging title to public office, the party sought to be removed from office is a necessary party to the lawsuit. See Dorsey v. Ennis, 167 Md. 444 , 175 A. 192 (1934); Brown v. Bragunier, 79 Md. 234 , 29 A. 7 (1894). Neither the current Baltimore City Police Commissioner, nor the former interim Baltimore City Police Commissioner has been named, added as a party, or served in this lawsuit. Obviously, the proposed reinstatement would particularly affect the rights and interests of current Commissioner Frederick Bealefeld, and he has not had the opportunity to be heard.

Third, the court stated: Relief by Mandamus will also be refused where reinstatement to office would be a useless and nugatory act. Bragunier, 79 Md. 234 , 29 A. 7 (1894). A “useless and nugatory act” results where, subsequent to the time of application for the writ, the term of office to which the Petitioner seeks reinstatement has almost expired, or will expire before the writ can become effective. See Am.Jur.2d Mandamus § 292 (2008) (citing Mootz v. Belyea, 60 N.D. 741 , 236 N.W. 358 (1931)); 55 C.J.S. Mandamus § 232 (citing Ruch v. Wilhelm, 352 Pa. 586 , 43 A.2d 894 (1945); Cowan v. State ex rel.

Scherck, 57 Wyo. 309 , 116 P.2d 854 (1941)). Were he reinstated, Kevin Clark’s term as Police Commissioner would terminate on June 30, 2008. A fourth reason given by the court was that: [A]n action for writ of mandamus may not be maintained if the Petitioner has another available, adequate remedy. Myers v. Chief, Baltimore County Fire Bureau, 237 Md. 583 , 207 A.2d 467 (1965); [s]ee also 52 Am.Jur.2d Mandamus § 290 (citing Wilson v. Department of Public Works, City and County of Los Angeles, 153 Ca.App.2d 152, 314 P.2d 84 (1957); Lenz v. Cobo, 338 Mich. 383 , 61 N.W.2d 587 ²¹¹ (1953); State ex rel.

Cater v. N. Olmsted, 69 Ohio St.3d 315 , 631 N.E.2d 1048 (1994)). Here, Clark has another remedy in his suit for damages against the City for wrongful termination. Fifth, the court stated that “a writ of mandamus directed to a municipal authority will not be granted where it would introduce great confusion or disorder.” The court explained: If reinstated, Kevin Clark’s term as Police Commissioner would expire on June 30, 2008. Reinstatement to his position as Police Commissioner for thirteen days or less would surely bring about great and unnecessary disorder and cause inevitable confusion in the operations and administration of the Baltimore Police Department.

Here, the chaos likely to ensue is arguably far greater and more significant than the confusion the Court sought to prevent in [Kinlein v. Mayor & City Council of Baltimore, 118 Md. 576 , 85 A. 679 (1912) ], because the issuance of a writ would not only upset the City’s financial affairs. It would oust the current Commissioner from his position, force a considerable change of leadership upon an important State agency, and disrupt its operation and administration for a short period of time. Finally, the court stated, in denying the writ of mandamus, that “the Court of Special Appeals, whose decision was affirmed, remanded the case to the circuit court for the consideration of issues of waiver, estoppel, and damages. This has yet to occur.” On July 15, 2008, the Honorable Albert J. Matricciani, Jr. denied Mr. Clark’s motion for partial summary judgment and granted appellees’ motion for summary judgment. 4 The court addressed each count raised by Mr. Clark and found that the only viable count remaining was count VII, which alleged a violation of due process: [Mr. Clark’s] requests for declaratory relief have been rendered moot as a result of the decision in this case issued ²¹² by the Court of Appeals on March 20, 2008, and his requests for injunctive relief were denied in a Memorandum and Order issued by Judge Carol E. Smith of this Court on June 17, 2008.

Thus, Counts I, II, III, IV, V and VI have been resolved. Counts VIII, IX and X are no longer viable as they were predicated upon alleged breaches of contract for terminating plaintiff without just cause (Counts VIII & IX) and without valid notice (Count X). As to the just cause counts, the defendants have not claimed that they had “cause” to terminate plaintiff, invoking instead his contract provision, § 12 of the MOU, dated February 2003, which purported to allow the City to terminate Clark without cause upon 45 days notice. It is, of course, this provision which was found by the appellate courts to be violative of the PLL § 16-5(e) and, therefore, unenforceable.

Clark v. O’Malley, 169 Md.App. 408, 438-439 , 901 A.2d 279 (2006), aff'd by Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 33 , 944 A.2d 1122 (2008). The invalid notice claim set forth in Count X was decided against plaintiff in this Court’s Declaratory Judgment of April 4, 2005. The Court of Special Appeals'found that Clark had not raised below a genuine issue of material fact regarding notice and left this Court’s ruling on that issue undisturbed. See 169 Md.App. at 425 , 901 A.2d 279 .

Clark failed to challenge that ruling in his appeals. Therefore, it is precluded from relitigation under the law of the case doctrine. Fidelity-Baltimore Nat’l Bank & Trust Co. v. John Hancock Mut. Life Ins.

Co., 217 Md. 367 , 142 A.2d 796 (1958). Thus, the sole remaining count is Clark’s state constitutional violation claim for a denial of due process in connection with his firing (Count VII). Both sides seek summary judgment treatment of this claim, defendants asserting that plaintiff has waived it or is estopped from pursuing it and plaintiff contending that defendants’ liability on it was established by the appellate decisions in this case.[ 5 ] ²¹³ The court then addressed Mr. Clark’s claim in count VII, that the Mayor violated his procedural due process rights under Article 24 of the Maryland Declaration of Rights 6 by “terminating him without affording him prior notice.” The court stated: Plaintiffs claim for compensatory damages is, however, limited by the terms of his contract with the City. MOU, § 2.B. The Court of Special Appeals accepted as undisputed the fact that Clark was sent a check that would have satisfied the terms of the MOU in the event of termination. 169 Md.App. at 421-425 , 901 A.2d 279 .

Consequently, plaintiffs claim for compensatory damages is limited to the relief already provided by the defendants. Moreover, on the record before this Court for purposes of the cross motions for summary judgment, the only basis Clark can assert for a violation of his due process rights is that the Mayor relied on a contract provision that was later deemed to be invalid. That is insufficient as a matter of law to support a claim for punitive damages. See Associates Discount Corp. v. Hillary, 262 Md. 570, 580 , 278 A.2d 592 (1971) (“But where the act, though wrongful in itself, is committed in the honest assertion of a supposed right, ... there is no ground on which such damages can be awarded.”) (citation omitted).

Thus, in the absence of any dispute as to material facts and because defendants are entitled to judgment as a matter of law, the Court will enter summary judgment for defendants on Count VII. ²¹⁴ The circuit court made clear that it was not finding that “Clark waived or is equitably estopped from pursuing his due process violation claim for money damages,” noting that “the question of whether plaintiff may accept the benefits conferred by the MOU for a period of two years and then challenge its validity is a factual one, not properly disposed of on a motion for summary judgment.” The court explained that its decision was based “upon its finding that § 2.B of the MOU is valid and enforceable.” The court stated: The issue of the continuing validity of the MOU § 2.B was expressly remanded to this Court for determination, in light of the Court of Appeals’ careful articulation that a contract provision that violates public policy is invalid only to the extent of conflict between the stated public policy and the contractual provision. See 404 Md. at 33 , 944 A.2d 1122 . The liquidated damages provision presents no such conflict. The court then addressed Mr. Clark’s motion for partial summary judgment regarding appellees’ liability.

In denying the motion, the court stated: “The decisions of the Court of Special Appeals and the Court of Appeals did not address