Hansen v. City of Laurel

EYLER, DEBORAH S., J. In the Circuit Court for Prince George’s County, Jerry P. Hansen, the appellant, sued the City of Laurel (“the City”), the appellee, alleging that he was terminated from his position with the City as a result of age and disability discrimination, in violation of section 2-222 of the Prince George’s County Code. The City filed a motion to dismiss asserting that the appellant had not alleged facts to show that he had satisfied the notice requirement of the Local Government Tort Claims Act (“LGTCA”), codified at Md.Code (1987, 2006 Repl. VoL, 2009 Supp.) section 5-304 of the Courts & Judicial Proceedings Article (“CJ”). The circuit court granted the City’s motion.

On appeal, Hansen poses two questions, which we have combined and reworded as follows: 1 Did the circuit court err in ruling that Hansen did not comply with the LGTCA’s notice requirement? For the following reasons, we shall affirm the circuit court’s judgment. ⁸⁵ FACTS AND PROCEEDINGS The facts alleged in Hansen’s complaint and set forth in the documents attached to his opposition to the motion for summary judgment provide the context for this dispute. Hansen was employed by the City as its Chief Building Official. In the spring of 2006, he suffered a heart attack, after which he was on disability and unable to work.

In November 2006, he met with City officials and reported “he was ready, willing and able to work.” He presented documentation from his physician showing that his medical condition would not prevent him from returning to work. Nevertheless, the City “regarded [Hansen] as having a permanent disability” and was “determined to convince him to voluntarily terminate his employment.” Hansen insisted that he could return to work and was prepared to do so on December 26, 2006. Before then, City representatives contacted him and told him not to come in and that his last day of employment would be January 2, 2007. Hansen “exhausted all administrative remedies and, within [90] days of receipt of a Notice of Right to Sue letter from the Baltimore District Office of the Equal Employment Opportunity Commission,” filed suit on September 26, 2008.

On February 26, 2009, the City filed a motion to dismiss. In its supporting memorandum, it asserted that, “[i]n order to state a claim for unliquidated damages against a municipal entity, a plaintiff must allege, and must have given, statutory pre-litigation notice of intention to file a claim, as provided by Md.Code, Courts & Judicial Proceedings Article [§ ] 5-301, et seq., within 180 days ‘after the injury.’ ” The City argued that Hansen “ha[d] not alleged that he satisfied the notice requirements of the Local Government Tort Claims Act, and indeed as far as [the City] [was] aware, he did not.” The City did not request a hearing. On March 5, 2009, Hansen filed an opposition to the City’s motion to dismiss. He did not address the alleged deficiencies in his complaint.

Rather, he characterized the City’s motion as “asserting] [that] the City ... [had] not receive[d] notice within the statutory 180 days after the actual injury that any ⁸⁶ claims were pending against it with relation to [Hansen’s] employment termination.” He responded that this argument was “without factual foundation” and averred facts that were not included in his complaint. Those facts showed that Hansen had notified the City Administrator of his claim within the 180-day window. In support of his new factual averments, Hansen attached a number of exhibits to his opposition. The exhibits, none of which were mentioned in the complaint, included: (1) a hand-delivered letter dated March 12, 2007, from Hansen’s lawyer to the City Administrator and the Deputy City Administrator setting forth the factual basis for Hansen’s potential legal claim and proposing that “the parties pursue a non-adversarial resolution to [the] matter and, therefore, [seek] intervention from the City Administrator’s Office prior to [Hansen’s] filing a discrimination claim with the local and federal administrative agencies”; (2) a document entitled “Charge of Discrimination,” dated April 25, 2007, submitted to the Prince George’s County Human Relations Commission and later sent to the City Administrator, providing the factual basis for Hansen’s discrimination claim; and (3) a “Notice of Charge of Discrimination” from the U.S. Equal Employment Opportunity Commission, dated April 27, 2007, also sent to the City Administrator, notifying the recipient of a discrimination charge.

Like the City, Hansen did not request a hearing. On March 10, 2009, the City filed a reply to Hansen’s opposition. Noting that Hansen had “attache[d] to his opposition several pieces of paper which were neither referred to in the Complaint nor attached to the Complaint,” the City argued that, those “pieces of paper,” if considered, showed that Hansen could not prove compliance with the LGTCA notice requirement. According to the City, the LGTCA statute required Hansen to give notice of the claim to the “City Attorney.” Thus, sending a letter and charges of discrimination to the City Administrator did not satisfy the statutory notice requirement.

The City asserted that “[i]t is not sufficient for a claimant simply to give some notice to some representative of the City.” The City further argued that, even ⁸⁷ if the City Administrator were a proper person to receive notice under the LGTCA, the letter and charges of discrimination were not sufficient “notice of a suit for unliquidated damages.” By order of April 13, 2009, the circuit court granted the City’s motion to dismiss. (As neither party had requested a hearing, none was held.) The order states: “Upon consideration of Defendant’s Motion to Dismiss and any response thereto, good cause therefor having been shown, it is this 9th day of April, 2009, by the Circuit Court for Prince George’s County ORDERED that the same be and hereby is GRANTED.” We shall include additional facts as necessary to our legal discussion. DISCUSSION Preliminarily, the parties disagree as to whether the circuit court’s ruling was a dismissal or a grant of summary judgment. Hansen maintains that, because he attached extrinsic documents “outside the four corners of the Complaint” to his opposition to the City’s motion to dismiss, and because the circuit court did not indicate that those documents were not considered by it, “it is reasonable to presume [that] the [circuit] court considered those in its ruling.” Thus, he argues, the circuit court’s ruling was a grant of a motion for summary judgment, and should be reviewed as such on appeal.

The City urges us to review the circuit court’s ruling as one granting a motion to dismiss. It argues: Inasmuch as neither party requested a hearing ..., and the trial court did not issue an opinion or otherwise explain its reasoning, it is more likely than not that the trial court simply agreed with the [City’s] argument that the complaint failed to state a claim upon which relief may be granted because it did not allege compliance with the LGTCA. ⁸⁸ Rule 2-322(c) dictates the circumstances under which a motion to dismiss must be treated as a motion for summary judgment: If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501. (Emphasis added.) Thus, “when a trial judge is presented with factual allegations beyond those contained in the complaint to support or oppose a motion to dismiss and the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment.” Okwa v. Harper, 360 Md. 161, 177 , 757 A.2d 118 (2000) (emphasis added); see also Smith v. Danielczyk, 400 Md. 98, 104-05 , 928 A.2d 795 (2007) (stating, “[bjecause the court dismissed the complaint without explanation, it is not clear whether any of that material was, in fact, considered. The record does not indicate that the extraneous documents or averments were ‘excluded’ by the court, however, so we must assume that they were considered.”); Worsham v. Ehrlich, 181 Md.App. 711, 723 , 957 A.2d 161 (2008) (“In the present ease, appellees’ motions to dismiss did not present matters outside the pleadings, but, as indicated above, appellant attached extraneous material, i.e., the affidavit, to his motion for partial summary judgment, and argued his position in support of that motion at the May 1 hearing.

Generally the introduction of affidavits of fact will operate to convert a motion to dismiss into a motion for summary judgment____ There is no indication on the record that the court excluded the facts submitted to it through the exhibit in ruling on the motions to dismiss; thus, we must assume that they were considered.”). In the case at bar, there is nothing in the record to suggest that the circuit court excluded the extrinsic materials presented with Hansen’s opposition in ruling upon the City’s motion. Accordingly, we shall treat the circuit court’s ruling as one ⁸⁹ granting summary judgment to the City on the issue of notice under the LGTCA. 2 In reviewing the grant of summary judgment, we are governed by Rule 2 — 501(f), which states, “[t]he court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” “In determining whether the trial court correctly entered summary judgment as a matter of law, we apply a de novo standard of review.” Warsham v. James Muscatello, Inc., 189 Md.App. 620, 634 , 985 A.2d 156 (2009) (citing Conaway v. Deane, 401 Md. 219, 243 , 932 A.2d 571 (2007)). “We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party.” Md. Agric. Land Pres.

Foundation v. Claggett, 412 Md. 45, 61 , 985 A.2d 565 (2009) (citations omitted). “Where there is no genuine dispute of material fact ... we proceed to review determinations of law.” Id. In the case at bar, there was no genuine dispute of material fact regarding the steps Hansen took to satisfy the LGTCA notice requirement. The parties agree that the documents attached to Hansen’s opposition to the City’s motion to dismiss were received by the City Administrator. The only controversy for purposes of our discussion concerns whether the City Administrator was the proper recipient of notice under the LGTCA — a question of law.

Hansen contends that CJ section 5-304 allows a claimant to give notice to “corporate authorities” and, therefore, by hand-delivering his letter and the discrimination charges to the City Administrator, he strictly complied with the notice requirement. Alternatively, he argues that his “comprehensive corre ⁹⁰ spondence to the City Administrator” and “[subsequent correspondence from the federal and county commissions to the City Administrator” amounted to substantial compliance with CJ section 5-304. The City responds that Hansen did not satisfy the LGTCA notice requirement because the City Administrator is not a proper recipient of the notice under CJ section 5 — 304(b)(2). It argues that that statute required Hansen to give notice to the City Solicitor of Laurel; and even if the statute also permitted notice to the City’s “corporate authorities,” the City Administrator is not a corporate authority.

For those reasons, Hansen did not strictly comply with the LGTCA notice statute. The City further argues that the notice given to the City Administrator did not amount to substantial compliance with the notice statute because the City Administrator “does not have the authority and responsibility for investigating tort claims.” 3 (a) Strict Compliance The LGTCA requires persons suing local governments in tort for unliquidated damages to abide by its notice provisions. See generally CJ § 5-304. 4 The notice requirements “are a condition precedent to maintaining an action against a local government.” Rios v. Montgomery County, 386 Md. 104, 127 , 872 A.2d 1 (2005). Moreover, “compliance with the notice statute should be alleged in the [complaint] as a substantive element of the cause of action.” Hargrove v. Mayor & City Council, 146 Md.App. 457, 462-63 , 807 A.2d 149 ⁹¹ (2002) (quoting Madore v. Balt.

County, 34 Md.App. 340, 345 , 367 A.2d 54 (1976)). Claimants must give written notice, stating the “time, place, and cause of the injury,” within 180 days of the injury. CJ § 5-304(b) and (c)(3). The notice must be given to the appropriate person designated in CJ section 5-304(c). 5 That section states, in pertinent part: (1) Except in Anne Arundel County, Baltimore County, Harford County, and Prince George’s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county commissioner, county council, or corporate authorities of a defendant local government, or: (i) In Baltimore City, to the City Solicitor; (ii) In Howard County, to the County Executive; and (iii) In Montgomery County, to the County Executive.

(2) In Anne Arundel County, Baltimore County, Harford County, and Prince George’s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county solicitor or county attorney. Hansen argues that subsection (c)(1), and not subsection (c)(2), applied here. He states: “There is no language that subsumes any city government located within a county into the provisions related to a specific county. For example, the statute does not state that claims against the City of Rockville must be directed to the Montgomery County Executive.” He maintains that, because the permitted recipients of notice under subsection (c)(1) include “corporate authorities,” he ⁹² could satisfy the LGTCA notice requirement by giving notice to a “corporate authority.” He asserts that it was the intention of the legislature in enacting the notice statute that “for any local government other than those specifically identified in the statute, notice shall be given to ‘the corporate authorities of the defendant local government.’” Finally, he takes the position that the City Administrator is a “corporate authority” of the City and, therefore, she was a proper recipient of notice.

The rules of statutory interpretation were recited in Barbre v. Pope, 402 Md. 157, 172-73 , 935 A.2d 699 (2007): In statutory