University System of Maryland v. Mooney

Dissenting Opinion by MURPHY, J. The complaint that is to be dismissed on the basis of the majority opinion was filed on June 4, 2004. Petitioner never ⁴¹⁴ argued to the Circuit Court that the complaint should be dismissed on the ground that the respondents had failed to “exhaust” their administrative remedies. Petitioner never presented this argument in the briefs it filed on the two occasions when the case at bar was pending in the Court of Special Appeals. Petitioner’s “exhaustion” argument was presented for the first time at the second oral argument in the Court of Special Appeals.

Mooney v. University System, 178 Md.App. 637 , 647 n. 2, 943 A.2d 108 (2008). While this issue may be raised for the first time in this Court, I am persuaded that Respondents’ complaint should not be dismissed. If Petitioner had disputed Chesapeake’s right to receive payment, and Chesapeake assigned its unpaid $43,005.00 claim to Respondents, Respondents would have been required to proceed administratively before the Board of Contract Appeals. The case at bar, however, does not involve a dispute between Petitioner and Chesapeake.

While I agree with the majority that “[a] ‘person’ in Section 15-217 of the State Finance and Procurement Article ... does not include only the person awarded the procurement contract, but third parties representing the interests of the contracting party[,]” I do not agree that Respondents should be included in the definition of “person” on the ground that they are involved in the process of “collecting property due to another[.]” Because Respondents are not “representing the interests of the contracting party,” and are not attempting to collect funds that Petitioner had withheld from Chesapeake, I would affirm the judgment of the Court of Special Appeals and order that this case be returned to the Circuit Court for further proceedings not inconsistent with the March 3, 2008 opinion of the Court of Special Appeals.