Love v. Bachman

Lowe, J., delivered the opinion of the Court. In Love v. Bachman, 38 Md. App. 555 (1978), we reversed the Circuit Court for Anne Arundel County which sustained a demurrer without leave to amend in a mandamus action against the Anne Arundel _County Council. Appellant had previously obtained a summary judgment against the Board of Education of Anne Arundel County, presumably from which no appeal was taken, but found the Board had inadequate funds to satisfy the full amount. The suit in Love, supra (and here), is an attempt to enforce that judgment by compelling the County through mandamus to appropriate funds to the Board in an amount sufficient to satisfy the judgment against it.

The sole issue in the prior appeal questioning the propriety of the trial court’s judgment in sustaining a demurrer, was singularly a pleading one, the sufficiency of the original ²⁸⁴ pleading. Because no reasons were assigned for its action by the trial court we deliberated in an appellate vacuum, but decided that since the demurrer had specified only two express grounds, the court’s decision had necessarily been made on one or the other so we addressed both. The two grounds were 1) whether appellant had standing to enforce (by mandamus) a duty owed by appellees to the Board, and 2) whether the imperative duty prerequisite to mandamus was sufficiently clear. We found adequate authority in the Court of Appeals which provided appellant standing in light of his allegations.

We also identified an allegation in the petition of appellees’ duty, pursuant to statute, to levy and collect taxes sufficient to meet its appropriations to the Board. In reversing, we addressed those two narrow pleading questions only. We did not address directly or inferentially either the merits of the case or any of the possible defenses thereto. Because we were dealing with the correctness of action on demurrer, we were bound to assume the truth of all allegations in the Petition for Mandamus.

Among these was the allegation that judgment had been entered against the Board in a separate case, in the Circuit Court for Anne Arundel County, No. C-7464, “from which no appeal had been taken”, and from which a balance under that judgment of $81,000 was due. The case we decided on January 13, 1978, was designated in the Circuit Court for Anne Arundel County as C-8844. Following our reversal of C-8844, we are told by appellees that the cases were “consolidated’.’ when heard: ²⁸⁵ This allegation is reinforced by the brief Memorandum Opinion and Orders of November 13,1978, filed in both C-8844 and C-7464. 1 ²⁸⁴ “For clarification it should be noted that the trial court consolidated, for its own convenience, the mandamus action of the architect against the County (C-8844) with the amended claims asserted in C-7464 and the third party claims by the School Board against the County. Prior to the appeal of C-8844 in the Court of Special Appeals, the trial court had dismissed, without leave to amend, the School Board’s third party claim against Anne Arundel County in C-7464.” ²⁸⁵ “MEMORANDUM OF OPINION AND ORDERS (November 13, 1978) In Law No. C-7464, this [Circuit] Court [of Anne Arundel County] made a finding on 9 February 1978 that the Board of Education was still liable to the Plaintiff for $40,673.80 in claims, but deferred entering a judgment for that amount pending a determination of the existence or nonexistence of an appropriation from which the judgment could be paid, Board v. John K. Ruff, Inc., 278 Md. 580 (1976).

In the meantime, on 13 January 1978, unknown to this Court until some time later, the Court of Special Appeals had filed its opinion in its No. 453, September Term, 1977 [ 38 Md. App. 555 ], our Law No. C-8844, in which it held ‘that a citizen with a peculiar interest has standing to enforce a judgment against a county, although it was obtained by him against another legal entity,’ and that the Plaintiff was ‘a citizen with a peculiar interest’ if he proved what he alleged in his amended petition. The Court of Special Appeals did not discuss the implications of Ruff’s holding, already cited, or the further holding that a political entity clothed with sovereign immunity can not waive that sovereign immunity. At the last hearing of these cases, the Court entered a finding that ‘the Board of Education has no fund with which to pay the judgment’ — if a judgment were entered. The Board and the County have responded with a Motion to Dismiss by Reason of Sovereign Immunity.

(The County’s standing is unchallenged but questionable; it’s demurrer to the ²⁸⁶ Board’s Amended Third Party Claim was sustained without leave to amend on 19 April 1977.) Thus the quandary is perceived: Should mandamus issue in C-8844 to require the County Council to raise funds to pay a sum due from the Board of Education to ‘a citizen with a peculiar interest’ when the Board itself is immune from judgment? If the Court were to enter judgment, it would do so for the full amount claimed, with interest on $7,290 from this date; with interest on $18,000 from 15 December 1975; and with interest on $15,383.80 from 31 December 1975. But it is not entering the judgments, though the Plaintiff’s proof of entitlement failed in only one respect: That the Board had a fund from which the judgment could be paid. In spite of the Court of Special Appeals’ almost direct command to grant the Plaintiff relief, Ruff must be given effect, this Court being without power to overrule it even if it were persuaded that it should be.

Accordingly, it is this 13 day of November 1978, by the Circuit Court for Anne Arundel County, ORDERED: That the Motion to Dismiss in C-7464 is granted; That the Amended Petition in C-8844 is dismissed, the Plaintiff to pay the costs in both cases. JAMES L. WRAY, JUDGE” There is no docket entry or order apparent in the record, however, and certainly none in the extract (Md. Rule 1028) to indicate that the cases were consolidated. To the contrary, colloquies extracted from the transcript indicate the contrary, i.e., that the cases were heard in tandem as a convenience, rather than consolidated for that purpose. 2 ²⁸⁷ The appeal specified that it was from the judgment entered in “Law No. C-8844”. That appellant did not appeal from the dismissal of C-7464 is apparent also from the fact that he did not extract any part of the record in C-7464 (Md. Rule 1028) nor was the record in that case forwarded to this Court pursuant to Md. Rule 1011 b within 60 days (Md. Rule 1025 a). 3 We are, therefore, without official knowledge of what has actually transpired in the C-7464 suit against the Board of Education.

In our first opinion we were bound to assume the truth of the petition as pled, i.c., for purposes here that an unappealed judgment had been entered against the Board with an amount due under the judgment of $81,000. But the issue here is not one of the adequacy of a pleading, but rather the adequacy of the evidence. Underlying the sufficiency of the evidence as raised by appellant’s sole question, “Should the writ of mandamus issue as prayed?”, is whether sovereign immunity has been waived by the Board. That issue as argued by the parties is even further refined because of the two specific criteria to be met to effect a waiver of sovereign immunity: “[Fjirst, the Legislature must have explicitly or implicitly removed the protective barrier of governmental immunity from the agency,....” ²⁸⁸ Maryland Port Adm. v. I.T.O. Corp., 40 Md. App. 697, 706 (1978), which was accomplished by Md. Code, Art. 77, § 38; “and second, the agency either has the funds from which it can pay the claim or it possesses the power to raise those funds.” 40 Md. App. at 706 .

See also Katz v. Washington Sub. San. Comm’n, 284 Md. 503, 513 (1979). We are concerned on this appeal with whether appellant produced sufficient evidence to prove this latter criterion.

Chief Judge Gilbert, quoting from Board v. John K. Ruff, Inc., 278 Md. 580, 584 (1976), points out in Maryland Port Adm., supra at 705, the “modern rule” that has emerged from the Court of Appeals in American Structures v. City of Balto., 278 Md. 356, 359 (1976) and Board v. John K. Ruff, Inc., supra. “ ‘[A]n action ... brought for a money judgment in contract or in tort against the State or an agency of the State without the State’s consent, actual or implied, ... must be defended on the ground of sovereign immunity, which cannot be waived unless funds have been appropriated for the purpose or the agency can provide funds by taxation____’ (Citations omitted.) (Emphasis supplied.)” See also Katz v. Washington Sub. San. Comm’n, 284 Md. at 513 ; University of Maryland v. Maas, 173 Md. 554 (1938). Appellant concedes that if this action were against the Board as an action ex contractu, the rule aforesaid would be relevant, i.e., since the Board’s immunity was statutorily waived, the issue would be whether a Board fund exists or whether the Board had power to raise funds.

He points out, however, that the bifurcated procedure he followed by two separate