Wildwood Medical Center, L.L.C. v. Montgomery County

PER CURIAM. Wildwood Medical Center, L.L.C., Appellee in the Court of Special Appeals and Petitioner here, requested on April 28, 2004, a refund of certain real property recordation and transfer taxes it had paid upon presentation of a deed for recordation, under protest, to Montgomery County, Maryland, Appellant below and Respondent here. That request, after a hearing, ultimately was denied by the County. Petitioner took an appeal to the Maryland Tax Court.

The Maryland Tax Court (a State administrative agency) granted Wild-wood’s request for the refund on June 3, 2005. From that final administrative agency action, the County filed a Petition for Judicial Review with the Circuit Court for Montgomery County. The Circuit Court affirmed the decision of the Tax Court. Montgomery County then filed a Notice of Appeal to the Court of Special Appeals. 1 ⁴⁹³ On March 8, 2007, the intermediate appellate court filed a reported opinion vacating the judgment of the Circuit Court and remanding the case for further proceedings.

Before the mandate of the Court of Special Appeals was issued, however, the County Attorney’s Office sent a letter suggesting that the court “consider revising its decision before the mandate issues” and made several suggestions for changes it urged were necessary or appropriate. The opinion was recalled before the mandate issued. Ultimately, another purported opinion (on reconsideration) was filed on October 31, 2007. A mandate for this new opinion issued on the same date.

Thereafter, Wildwood filed with us a Petition for Writ of Certiorari, which we granted on February 13, 2008. Wildwood Medical v. Montgomery County, 403 Md. 304 , 941 A.2d 1104 (2008). The sole question for which we issued a writ of certiorari based on Wildwood’s petition was: Whether the Maryland Tax Court and the Circuit Court for Montgomery County, Maryland ... were both correct in allowing appellant exemptions from transfer and recordation taxes upon the recordation of the subject deed, in accordance with §§ 12-108(y) and 13-405(c) of the Tax-Property Article, as appellant’s predecessor entity held the title to the subject property as a general partnership. Because the material facts do not appear to be disputed, we shall incorporate a recitation of them into our analysis of the question presented, as necessary.

We shall reach and answer in the affirmative this question, but only after some explanation of the serendipitous reasons the matter properly is before us on the merits. I. The panel assigned to hear and decide the County’s appeal in the Court of Special Appeals consisted of Judges Theodore G. Bloom, Mary Ellen Barbera, and James A. Kenney, III. ⁴⁹⁴ Following oral argument, the panel filed a purported reported opinion, with a dissent, on March 8, 2007. Judge Bloom, writing for himself and Judge Barbera, would have vacated the judgment of the Circuit Court and remanded the case for entry of a judgment reversing the decision of the Tax Court. Judge Kenney, in dissent, would have affirmed the Circuit Court’s judgment.

As noted previously, before the mandate issued, counsel for Montgomery County wrote to the panel pointing out reasons why the erstwhile majority opinion required, in counsel’s view, certain corrections or revisions. In effect, limited reconsideration was sought by the nominal victor in the intermediate appellate court proceeding. The court apparently agreed because the reported opinion was recalled before a mandate issued. Before a revised majority opinion in the Court of Special Appeals could be filed, Judge Bloom passed away; however, before he died, we are informed that he approved changes in a “new” draft majority opinion.

We know this because the title page of the reported opinion (on reconsideration), filed on October 31, 2007 (after Judge Bloom’s passing), said so. 176 Md.App. 731 , 934 A.2d 484 (2007). 2 Judge Kenney’s dissent also was filed concurrently. The mandate issued on the same day the opinions were filed. The parties did not question before this Court or the Court of Special Appeals the effect of Judge Bloom’s death before a final opinion was filed below and a mandate issued. Because this factor, however, bears on the jurisdictional basis upon which we accepted the case, the parties’ omission in this regard is no impediment to our consideration of the discovered “problem.” ⁴⁹⁵ Section 1-403 of the Courts & Judicial Proceedings Article of the Maryland Code (1973, 2006 RepLVol.) provides as to the Court of Special Appeals: Title 1.

Court Structure and Organization * * * Subtitle 4. Court of Special Appeals § 1-403. Sessions; panels; hearings in banc. (b) Panels.—A case before the Court of Special Appeals shall be heard by a panel of not less than three judges ....

The concurrence of a majority of a panel is necessary for the decision of a case.” [Emphasis added.] Thus, there was no longer a panel of three judges to hear and decide this appeal on October 31, 2007, when the opinions were filed finally in the Court of Special Appeals. Generally, when a judge vacates office before submitting a decision in an assigned case, no other person is authorized to submit the decision on the judge’s behalf. State v. Dowdell, 55 Md.App. 512, 515-516 , 464 A.2d 1089, 1091 (1983); see also Dept. of Human Res. v. Howard, 397 Md. 353, 367 , 918 A.2d 441, 450 (2007) (noting that a judge generally is considered to have vacated office upon death). While the appeal in this case could have been reargued before a reconstituted or new panel in the Court of Special Appeals, there was no authority of which we are aware for Judge Bloom’s presumed revised draft opinion to have been filed by someone else on his behalf.

Thus, the October 31, 2007 opinions and mandate were nullities, and the appeal technically remained pending at the time we issued our writ of certiorari to the intermediate appellate court. ⁴⁹⁶ When this Court granted Wildwood’s Petition for Writ of Certiorari and issued a writ in this case on February 13, 2008, it did so, in effect, prior to entry of a proper judgment by the Court of Special Appeals (Maryland Code (1974, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 12-201 (stating that “petition can be filed and granted before or after a decision by the Court of Special Appeals”)), and while a timely filed appeal remained pending before that court. In such instances, when certiorari is granted bypassing the Court of Special Appeals, this Court considers all the issues that would have been cognizable by the intermediate appellate court. Md. Rule 8-131(b)(2); 3 Colburn v. Dep’t of Pub.

Safety & Corr. Servs., 403 Md. 115, 119 , 939 A.2d 716, 719 (2008); Converge Serv. Group, LLC v. Curran, 383 Md. 462, 467 , 860 A.2d 871, 874 (2004). That is why it is proper for us to reach and decide the merits of this case.

II

On the merits, we shall affirm the judgment of the Circuit Court. In doing so, we hold that the conveyance and recordation of the deed in this case was exempt from the State recording tax and the Montgomery County transfer tax. A Surveyor’s Certificate recorded in Montgomery County in 1990 details the provenance of Plat No. 17744, the subject property. The Certificate identifies Parcel B, the subject parcel, along with several surrounding properties, under the name “Aubinoe and Griffith Limited Partnership.” The Certificate characterizes Parcel B as 1) a “resubdivision of part of ⁴⁹⁷ Wildwood Manor Shopping Center ... being part of lands conveyed by Wildwood Investment Corporation to Alvin L. Aubinoe, now deceased, and Dorothy B. Aubinoe” by deed dated February 27, 1965; and 2) “a subdivision of part of the lands conveyed by Cheshire Land Co., Inc. to Alvin ... and Dorothy” by deed dated September 25, 1962.

A deed recorded on February 27, 1969, bearing the signature of Alvin as President of Wildwood Investment Corporation and Dorothy as its Secretary, transfers title to the subject property from Wildwood Investment Corporation to Alvin and Dorothy in equal interest incident to the dissolution of that corporation. The deed states that Alvin and Dorothy previously conveyed the subject property to Wildwood Investment Corporation by deeds dated January 31,1955 and February 13,1956. After Alvin’s death, Dorothy transferred title of Parcel B to Dorothy Aubinoe Griffith and Alvin L. Aubinoe, Jr. on May 19, 1983. Later, at Dorothy’s death, several individuals and family trusts acquired title to portions of the property through inheritance, as reflected in deeds recorded through the year 2000.

In 2000, the co-owners began filing United States Partnership Tax Returns. Not until December 22, 2003, however, did the co-owners execute a formal partnership agreement. In the partnership’s operating agreement, the partners listed as their capital contributions their interests “as tenants in common” in the properties. Shortly thereafter, the partnership transferred title to Westwood Medical Center, L.L.C., claiming the transfer qualified for a recording and transfer tax exemption under Maryland Code (2001, 2007 Repl.Vol.), Tax-Property Article, § 12-108(y)(2). 4 ⁴⁹⁸ The State Land Instrument Intake sheet offered at the time of the filing of the deed to Wildwood identified the property as non-residential property held by individuals doing business as Wildwood Medical Center General Partnership.

The County rejected the claimed exemption on the ground that the property was never titled in the name of Wildwood Medical Center General Partnership as such. The limited liability company paid the taxes under protest and filed the requisite refund request forms. When the County denied the refund, Wild-wood appealed to the Maryland Tax Court. The Tax Court ruled that the transfer qualified for the exemption, and the ruling was affirmed by the Circuit Court for Montgomery County.

By the plain and ordinary meaning of § 12-108(y)(2), the statutory exemptions apply to the subject deed. The transferor was a Maryland general partnership. The partnership confirmed its existence by the terms of a written partnership agreement. The intent of the members to carry on as a partnership was manifested by the fact that they filed U.S. Partnership Tax Returns for years previous to executing the formal agreement, specifically 2000 through 2003.

The transferee was a limited liability company composed of the same members that comprised the partnership. The same members executed the subject deed, the “instrument of writing” that transferred title to the real property. Section 9A-101(i) of the Corporations and Associations Article of the Maryland Code defines a partnership as an association of “two or more persons” who “carry on as coowners” in a mutually beneficial business relationship. Such an association creates a partnership “whether or not [it] is called partnership, joint venture, or any other name.” Maryland Code (1975, 2007 Repl.Vol.), Corporations & Associations Article, ⁴⁹⁹ § 9A-202(a); Madison Nat’l Bank v. Newrath, 261 Md. 321, 328 , 275 A.2d 495, 499 (1971) (holding individuals who carry on a business to mutual benefit and share in its profits to be partners, “whether they call themselves such or not”) (quoting McBriety v. Phillips, 180 Md. 569, 573-74 , 26 A.2d 400, 403 (1942)).

McBriety held that a “partnership ... may be proved by express agreement or may be gathered from the intention of the parties as implied from their acts.” Through this well-established principle, partnerships can be discerned from “surrounding circumstances.” Vlamis v. De Weese, 216 Md. 384 , 389 140 A.2d 665, 668, 670-72 (1958) (holding that regardless of the name on the record title, the land was the subject of a partnership discernable from surrounding circumstances and therefore passed to the partner as partnership property and not by devise to the widow and her heirs). It is the intention of the parties, not the record title alone, that determines whether property not held in the name of the partnership is partnership property nonetheless. Madison Nat. Bank, 261 Md. at 323 , 275 A.2d at 497 (citing Vlamis v. De Weese, 216 Md. 384 , 140 A.2d 665 (1958)); Williams v. Dovell, 202 Md. 351, 356-57 , 96 A.2d 484, 487 (1953) (holding that property acquired as partnership property may be conveyed to individuals within the partnership without reference to the partnership).

To the extent that