author: Liss, J.,

text:
    RAYMOND INTERNATIONAL, INC. v. BALTIMORE COUNTY, MARYLAND et al.
    [No. 714,
    September Term, 1979.]

      Decided April 11, 1980.

      The cause was argued before Gilbert, C. J., and Thompson and Liss, JJ.

      George W. McManus, Jr., and Kenneth B. Frank for appellant.

      Harry S. Shapiro, Chief Assistant County Solicitor for Baltimore County, with whom was Leonard S. Jacobson, County Solicitor, on the brief, for appellee Baltimore County, Maryland. Douglas G. Worrall, with whom were Smith, Somerville & Case on the brief, for appellee Greiner Engineering Sciences, Inc.
   Liss, J.,

delivered the opinion of the Court.

This appeal by appellant, Raymond International, Inc., arises out of a judgment rendered in a non-jury trial in the Circuit Court for Baltimore County in which the presiding judge ruled that Baltimore County, one of the appellees, was indebted to the appellant in the amount of $18,431.98. At the same time, the trial judge entered a verdict for costs in favor of the remaining appellee, J. E. Greiner, Inc. Appellant filed the within appeal from these judgments.

By invitation to bid in May of 1972, Baltimore County solicited bids for underwater repairs to the bascule piers of the Wise Avenue Bridge over Bear Creek. Bidders were supplied with plans and specifications prepared for the County by Greiner. The proposed repairs consisted of the removal of deteriorated concrete from the bases of the piers and the placement of aggregate concrete in lieu of the deteriorated material. The bridge was originally built about thirty years ago. It was of the bascule type with two main piers which encompassed the channel of the river. The piers were of concrete resting on piles driven into the river bottom. Their reconstruction was contemplated to be accomplished by driving additional piles into the river bottom and encircling the piling with a cofferdam consisting of interlocking sheet piling driven into the bottom of the river and extending out of the water thus forming a boxlike structure. The cofferdam is erected and sealed in order to permit the water to be removed from the interior of the structure. The sealing of the cofferdam is accomplished by placing in its bottom a mass of concrete heavy enough to act as a plug and sufficient to counteract the pressure of the water. The placement of this mass of concrete is achieved by the "tremie” method which requires a tube to be lowered into the water through which concrete flows that settles on the bottom of the cofferdam. Subsequent to this operation, the water in the cofferdam is removed and work on the bridge pier may be completed free of the water. The mass of concrete in the bottom of the cofferdam is known as "tremie concrete,” and when construction or repair of the bridge pier is completed, the sheet piling of the cofferdam is removed and the "tremie” is abandoned by being left in place.

Over the years after the original construction of the bridge, Greiner conducted regular inspections of the bridge including the piers. In 1971, Greiner reported deterioration of the bridge piers below the waterline. This deterioration was determined to be of a progressive nature. Based on the data gathered including test borings and inspection by divers, Greiner came to the conclusion that the piers needed immediate repairs. Greiner communicated with Raymond which had some expertise in the making of underwater repairs. Raymond’s representatives recommended a repair procedure which contemplated a jacketing of the piers with preplaced aggregate concrete. This procedure is a construction technique used in underwater work by which stones are placed in a form with a cementitious material (grout) pumped into the form displacing the water and forming concrete.

At the request of the County, Greiner prepared contract documents for the recommended repairs in order that the County could solicit bids. The documents included specifications, drawing, informational drawings, an addenda, an invitation to bid and other general provisions. Bids were solicited from a limited group of bidders who were thought to have the specialized abilities to perform the work. The group included Raymond which ultimately submitted a bid substantially below the bid of the next lowest bidder. Raymond and the County entered into an agreement by the terms of which Raymond was to finish the work in 100 days. Failure to do so made the contractor liable for liquidated damages under the contract. The County promised to obtain for Raymond a necessary right of way. Raymond was to be paid on a unit price basis the approximate sum of $213,000 based on the 230 cubic yard quantity estimated by Greiner and the County to be the amount of aggregate concrete required to complete the job. The work to be performed consisted primarily of cleaning around Piers Nos. 3 and 4 of the bridge, forming and pouring preplaced aggregate concrete around the deteriorated faces of the piers, and making repairs to the submarine cables.

After the repairs began, Raymond contends it discovered that Greiner’s specifications were inaccurate. It produced witnesses who stated that: (1) the material surrounding the piers was not soft as represented, but contained large pieces of concrete, pile butts, old timbers and steel; (2) the tremie was irregular with variations up to 1.5 feet; (3) no tremie existed in some areas; (4) only an average of two inches of deteriorated concrete could be chipped away, rather than the six inches represented in the plans and specifications which resulted in the projected total of 230 cubic yards of concrete not being able to be placed; and (5) the tremie was so weak in places that the form could not be anchored. Raymond contended below and contends here that as a result of the inaccuracy of Greiner’s specifications it was required to perform unforeseeable increased work. Raymond also complained particularly that instead of the 230 cubic yards of aggregate concrete estimated to be used, it utilized and was paid for only 114 cubic yards. Raymond urges that its unit price as bid was computed by spreading its fixed costs over the 230 cubic yards stated in the plans and specifications and that the County paid for only 114 yards which deprived Raymond of more than half of its computed contract price. Raymond advised the County in a summary of claim filed on January 30,1976, that while its original bid was $213,000, as a result of the misrepresentations included in the plans and specifications and the unforeseeable conditions arising out of the misrepresentations, its acutal expenditure to complete the project amounted to $1,095,804.30. This calculation is apparently not disputed. Baltimore County rejected the claim and refused any adjustment in its contract with Raymond.

Suit was then filed by Raymond against Greiner and the County. The declaration was based on alleged fraud, negligent misrepresentation, breach of warranty and breach of contract. Raymond sought compensation for the additional costs incurred as a result of the unforeseen conditions of the piers, the return of liquidated damages retained by the County, and an award for punitive damages. During the course of the bench trial which lasted for many weeks, the trial judge granted Greiner’s motion to dismiss at the conclusion of Raymond’s case. At the conclusion of the entire case, the court awarded Raymond $900 representing rental payments made by the appellant for rights of way and $17,531 being the compensation withheld by the County which was due Raymond. The appellant, unsatisfied with the judgment of the trial judge, thereupon filed this appeal.

The issues to be decided are:

I. Whether the trial judge erred in holding that the plaintiff was not entitled to rely on the conditions, quantities and representations contained in the contract?
II. Whether the trial court erred in holding that the plaintiff was not entitled to compensation for the unforeseen or misrepresented conditions encountered in the performance of the contract?
III. Whether Greiner’s motion to dismiss at the close of Greiner’s case was improperly granted?
IV. Whether the County’s motion raising preliminary objection was improperly granted on the issue of sovereign immunity?
V. Whether the trial judge erred in denying plaintiffs claim for an equitable adjustment in time and compensation due to a 50.1% underrun in preplaced aggregate?

I, n, V

One of the principal issues at trial was whether Raymond was justified in relying on the conditions, quantities and representations contained in the contract documents. Baltimore County in its defense relied principally on the contract documents which were filed as exhibits in this case. These documents included the invitation to bid, specifications, the proposal, the agreement, special provisions and various drawings. Included in the contract documents was the following which appeared in Section 5 of the special provisions:

Original construction data has not been verified by actual field measurements and the conditions observed during the underwater inspections and tests may have changed since the date on which they were made. Therefore, the above described data are furnished to the Contractor for general informational purposes only and do not purport to represent existing field conditions. It shall be the Contractor’s sole responsibility to verify by actual field measurements inspections and tests and data which may be of significance to him in the preparation of his bid.

The contract documents specifically stated that: "Special provisions shall govern over specifications, supplemental specifications and plans.” The County points out that the invitation to bid at page 1-03 states: "Bidders must examine the drawings and specifications carefully and must make a personal examination of the location and nature of the proposed work.”

In addition, the proposal which was made a part of the contract documents required the bidders to agree as follows:

The undersigned hereby declare that they have carefully examined the Form of Contract, Specifications, Special Provisions and Drawings forming a part of the same and have to their satisfaction examined the locality of the proposed work and agreed to furnish all labor, tools, materials, machinery, equipment and other means of construction called for in the manner provided in the Contract, Specifications, Special Provisions and Drawings thereto and requirements under them of the Engineer....

Sheet "X” which also was made a part of the contract documents provided:

Note 2 — contractor to verify all dimensions in field.
Note 5 — dimensions shown taken from as built plans and have not been verified by actual measurement. The contractor shall verify any and all dimensions as may be required to complete satisfactorily all work under this contract.

Relying on these provisions, the County urgently contends that the trial judge was correct when he held that there was no "justifiable reliance” by the appellant on the conditions stated to exist at the Wise Avenue bridge by the County’s engineer, Greiner, and that the trial judge committed no error when he held that: "[T]he contract documents that finally formed the contract clearly placed the burden to the Plaintiff to make a reasonable inspection to determine if these conditions were as depicted as in the contract documents.”

The legal issue boils down to a question of whether Raymond was required to verify independently the information upon which it based its bid, or whether Raymond was justified in relying on the information supplied by the County and its engineer as to the plans and specifications for the project.

The seminal case on the subject is Hollerbach v. United States, 233 U.S. 165, 34 S. Ct. 553, 58 L. Ed. 898, which was decided by the Supreme Court in 1914. That controversy involved a contract between the appellant Hollerbach and the United States Government for the repair of a dam. In its specifications for the contract, the Government stated that the dam was backed with broken stone and sediment. As the contractor proceeded with the work of removing the material, it was discovered that the backing of the dam was composed of a soft, slushy sediment and that the required excavation of the dam was substantially greater than that stated in the contract documents. The contract contained several exculpatory clauses which were stated as follows:

It is understood and agreed that the quantities given are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders, or their authorized agents, are expected to examine the maps and drawings in this office, which are open to their inspection, to visit the locality of the work, and to make their own estimates of the facilities and difficulties attending the execution of the proposed contract, including local conditions, uncertainty of weather, and all other contingencies.
* * *

It is expected that each bidder will visit the site of this work, the office of the lockmaster, and the office of the local engineer and ascertain the nature of the work, the general character of the river as to floods and low water, and obtain the information necessary to enable him to make an intelligent proposal. [233 U.S. at 167-68, 34 S. Ct. at 554.]

In spite of the Government’s attempt to make the contractor responsible for his own inspection, the investigation of the site and the work to be done under the contract, the Supreme Court held:

[T]he specifications assured them of the character of the material, a matter concerning which the Government might be presumed to speak with knowledge and authority. We think this positive statement of the specifications must be taken as true and binding upon the Government, and that upon it rather than upon the claimants must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the Government as a basis of the contract left in no doubt. If the Government wished to leave the matter open to the independent investigation of the claimants it might easily have omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity. See United States v. Stage Co., 199 U.S. 414, 424. [233 U.S at 172, 34 S. Ct. at 556.]

Appellant also cites Robert E. McKee, Inc. v. City of Atlanta, 414 F. Supp. 957 (N.D. Ga. 1976). In that case, the results of test borings were gratuitously provided to bidders along with specifications and other contract documents. The contract contained a clause in which the owner disclaimed any responsibility for the accuracy of the test results or for any conclusions drawn from them. The contract specifically provided that the test boring data were not to be considered a part of the contract. The contractor sued for misrepresentation because it discovered the level of rock was substantially higher than had been represented by the test boring.

The District Court in McKee, supra, at 959, held that it is clear "the government does not become an insurer merely by providing certain information” to the contractor. That Court, in determining whether the Government was liable for misinformation which it furnished to the bidder, posed two questions which must be examined: (1) "whether the contractor could have discovered the true facts through reasonable investigation[?]” and: (2) what "is the materiality of [the] misrepresentation itself [?]” Id. at 960.

Condon-Cunningham v. Day, 22 Ohio Misc. 71, 258 N.E.2d 264 (1969) involved a suit in which damages were allowed to a highway contractor as a result of misleading soil tests even though the contract provided that the test results were not part of the contract and that the contractors were obliged to make their own inspection. In examining the issue whether the contractor could have discovered the true facts for itself, the Court said:

What were the bidders to do? Was each bidder to run these tremendously expensive core boring tests not knowing whether or not he would get the contract? Under defendant’s contention there would be practically no bidders. A bidder would be faced with this dilemma. Shall I bid on what is presented to be and run the risk of loss if the information is not correct or shall I run core boring tests at great expense, amounting to thousands of dollars, which expense I must bear on my own if I do not secure the contract? [258 N.E.2d at 274-75.]

See also Michigan Wisconsin Pipeline Co. v. Williams-McWilliams Co. v. United States, 551 F.2d 945 (5th Cir. 1977); Foster Construction C. A. & Williams Bros. Co. v. United States, 435 F.2d 837 (1970); Alpert v. Commonwealth, 357 Mass. 306, 258 N.E.2d 755 (1970).

There is one case from the Court of Appeals in which a similar controversy was addressed. That case is Linz v. Schuck, 106 Md. 220, 67 A. 286 (1907), in which a contractor was hired to excavate a cellar under appellant’s property. Before submitting a price, the contractor inquired about the nature of the soil whereupon he was taken by the owner to a property across the street from the subject property and shown a cellar which the owner stated had been constructed without any difficulty. When the contractor began the work, however, it was ascertained that the building stood on a three-foot crust of hard ground under which were muddy, swamp-like conditions. It was conceded that the contractor could have ascertained the condition of the earth under the house by digging a test hole. However, the contractor relied on the owner’s representations without performing any tests. Suit for additional compensation due to substantial and unforeseen difficulty was brought by the contractor. In affirming a judgment for the contractor, the Court of Appeals said:

When two parties máke a contract based on supposed facts which they afterwards ascertain to be incorrect; and which would not have been entered into by the one party if he had known the actual conditions which the contract required him to meet, not only Courts of justice but all right thinking people must believe that the fair course for the other party to the contract to pursue is either to relieve the contractor of going on with his contract or to pay him additional compensation. [106 Md. at 230.]

We have very carefully reviewed the record extract in order to determine whether the trial court was clearly erroneous in its conclusions as to the law and the facts. The record extract establishes that the specifications as prepared by Greiner on behalf of Baltimore County were materially wrong and substantially inaccurate. The evidence disclosed no substantial dispute that the conditions as found by Greiner and reported to the County and to the bidders were substantially different from those encountered by Raymond when it began to perform the work required by the contract. Greiner and the County knew or should have known the representations regarding the deterioration of the piers and the quantities of concrete necessary for the repairs were inaccurate as Greiner had been engaged by the County over a period of years to inspect the underwater portions of the bascule piers. Greiner actually had thirteen contracts with the County between 1968 and 1972 which required Greiner to make underwater inspections of the bascule piers, tremies and piles, and field supervision of the piers.

Greiner, as agent for the County, submitted to Raymond information and plans which represented an average surface deterioration depth of six inches in spite of the fact that Greiner had reports from its divers that indicated the average depth of deterioration was only two inches. Therefore, in its bid proposal, Greiner required a computation based on quantities and information which Greiner knew or should have known was incorrect. To suggest that Raymond, who had been solicited to bid on the job by the County and Greiner, should have conducted diving tests in order to verify the information given it in the plans and specifications prepared by Greiner seems to us to place an undue burden on Raymond. Entirely apart from the substantial cost of any such verification, it is obvious that Greiner required a period of almost four years and innumerable test divings to compile the information necessary to prepare the plans, specifications and bid proposals, and that even in view of that lengthy time frame the information it had. was incorrect. We conclude that Raymond was not reasonably able to discover the true facts for itself and was, therefore, entitled to rely on the representations made by the County and Greiner.

As to the materiality of the representations, there can also be no dispute. Raymond established that its bid was conditioned upon the erroneous representation in the contract documents that a total of 230 cubic yards of aggregate concrete would be required to perform the contract. The actual amount required was approximately 114 cubic yards. The bid was based on a unit price per square yard, and because the County paid only for the actual amount used, the appellant was deprived of over half its contract price. In addition, because of the incorrect information supplied to Raymond, the contractor was required to perform additional work in connection with the use of the prefabricated forming system and to utilize new methods for sealing and anchoring the form bottoms. As a direct result of the variations from the conditions as represented in the plans and specifications, Raymond was unable to complete the project within the 100 days provided in the contract. As Raymond failed to perform within the time specified, the County withheld the sum of $37,000 notwithstanding that performance was impossible within the 100 days required by the contract.

Appellee Baltimore County relies on Trionfo v. Board of Education of Harford County, 41 Md. App. 103, 395 A.2d 1207 (1979), in which Judge Thompson of this Court exhaustively discussed the law of a contractor’s right to recover on a theory of misrepresentation. There we held, as we hold here, that the plaintiff must establish a right to rely on the misrepresentation. In Trionfo, we found no right to rely because the test boring data furnished to contract bidders were supplied only in exchange for a written release from the bidders designed to absolve the board from any responsibility for the accuracy or completeness of the information and to protect the board from assessments for additional work performed pursuant to assumptions made based on the supplied data. No such release provision exists in this contract. We, therefore, find Trionfo inapplicable to the present case. We conclude that the trial court erred in holding that the appellant was not entitled to rely on the conditions, quantities and representations contained in the contract. We further hold that the trial court erred in its finding that the appellant was not entitled to compensation for the unforeseen or negligently misrepresented conditions encountered in the performance of the contract.

We perceive an additional error in the trial court’s rulings. The contract documents expressly incorporated the specifications of the State of Maryland with the contract between Raymond and the County. Section 10.09-3 of those specifications expressly provides for an equitable adjustment for major discrepancies in quantities as follows:

Whenever a final quantity for any Major Contract Item shows that either the Proposal Quantity of said item, or the quantity specified therefor in any Supplemental Agreement has been actually overrun or underrun by more than 25 percent; the Contractor and Commission shall then be allowed an equitable adjustment in time and/or compensation as though said overrun or underrun had been anticipated by the Engineer and ordered, under the provisions of Section 10.04-3.

The term "major contract item” is defined in the State specifications as follows:

Major Contract Items shall be the original Contract item of greatest cost, computed from the original Contract price and estimated quantity, or lump sum price and such other original Contract items next in sequence of lower cost, computed in like manner, necessary to show a total cost at original prices and quantities of not less than 60 per cent of the original Contract cost and all other Contract items shall be considered as minor items.

The record extract, we think, clearly establishes that the major contract items in this contract were the preplaced aggregate contract amount of $115,000 and the removal of the fender systems amounting to $34,000 and totaling more than 60 percent of the original contract price. The evidence is undisputed that the quantity of preplaced concrete used amounted to a 50 percent underrun of the prescribed quantities set forth in the contract. Under these circumstances, Raymond was entitled to an equitable adjustment in time or compensation. The trial court initially came to the same conclusion, but inexplicably without reliance on either the law or the facts changed that opinion and concluded that Baltimore County was entitled to a favorable verdict on the issues of the failure to renegotiate and on the issue of an equitable adjustment. The lower court said:

The other three issues were the failure to renegotiate an equitable adjustment. At one point in the trial, I think I indicated to counsel, that I was really somewhat impressed that this is an issue that the plaintiff has a right to a particular equitable adjustment. I was very impressed by the testimony of Mr. Morris on this issue. He dwelled at length, but after reviewing the contract documents and listening to arguments of counsel, I’ve come to the conclusion that the defendant is correct that this is just not called for under the contract documents, and I could not, without breaking the rules of the law, allow that amount and I find that I would have to find for the defendant, Baltimore County, on those issues failing to renegotiate, and on the equitable adjustment.

We find nothing in the record extract on the basis of the facts or the law which supports that conclusion.

Ill

We find no error in the trial court’s granting of Greiner’s motion to dismiss Raymond’s suit against Greiner on the grounds of misrepresentation at the conclusion of Raymond’s case. Raymond contends that Greiner waived its right to file such a motion to dismiss because it offered testimony before the conclusion of the plaintiff’s case and that this amounted to a clear violation of Maryland Rule 535. We do not agree. The record discloses that Greiner’s counsel read into the record a short portion of the deposition of one of Greiner’s executives, the major portion of which had been put into the record by Raymond’s counsel. The clearly expressed purpose of the reading of the short excerpt of the deposition was for clarification of the witnesses’ testimony. We do not find that this amounted to such a violation of either the letter or the spirit of Rule 535 as to make Greiner’s motion to dismiss a "nugacity.” See Smith v. State Roads Comm., 240 Md. 525, 214 A.2d 792 (1965).

It would serve no useful purpose to again restate the five prerequisites of proof required to sustain an action for misrepresentation or deceit. It is sufficient to state that the appellant failed to produce evidence from which could be found or inferred that Greiner intended to defraud by reason of the allegedly incorrect information it furnished to Raymond. Even assuming that Greiner was negligent in preparing the information it furnished to the bidders, that would not be sufficient to satisfy the plaintiffs burden as a misrepresentation induced by negligence or. ignorance will not sustain an action for fraud. Peurifoy v. Congressional Motors, Inc., 254 Md. 501, 255 A.2d 332 (1969). There was no testimony establishing clear and convincing evidence that Greiner’s representations in this case were made for the specific purpose of defrauding the plaintiff. This is particularly so when we note that at the time the information was supplied to the prospective bidders no one had any knowledge as to who the successful bidder would be. It is not contended in appeal that the trial court was otherwise in error with respect to Greiner’s motion.

IV

The trial court was correct in its ruling on the County’s motion raising preliminary objection on the ground of sovereign immunity as to the first and second counts of Raymond’s declaration which were founded on the torts of fraud and negligent misrepresentation. See Jekofsky v. State Roads Comm., 264 Md. 471, 287 A.2d 40 (1972); Godwin v. County Commissioners of St. Mary’s County, 256 Md. 326, 260 A.2d 295 (1970).

Judgment reversed as to Baltimore County; remanded for new trial as to damages only.

Judgment affirmed as to Greiner.

Costs to be paid by Baltimore County.

      . See afeo United States v. Spearin, 248 U.S. 132, 39 S. Ct. 59, 63 L. Ed. 166 (1918); Christie v. United States, 237 U.S. 234, 35 S. Ct. 565, 59 L. Ed. 933 (1915).


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM M. STUMP et al. v. THE GRAND LODGE OF ANCIENT, FREE AND ACCEPTED MASONS OF MARYLAND et al.
    [No. 787,
    September Term, 1979.]

      Decided April 11, 1980.

    The cause was argued before Moore, Liss and Wilner, JJ.

      Susan Z. Whitman, with whom were Warren K. Rich and Niles, Barton & Wilmer on the brief, for appellants.

      J. Frederick Motz, with whom were John H. Hessey, IV, W. Lee Thomas and Michael J. McMahon, Assistant County Solicitor for Baltimore County, on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court,

This is an appeal by William M. Stump and other named individual taxpayers of Baltimore County, appellants, from the granting of a summary judgment in favor of The Grand Lodge of Ancient Free and Accepted Masons of Maryland (the Masons), Arthur M. Fisher, Inc., MAP Associates, and Baltimore County, Maryland, appellees.

Appellants initiated this case on March 1, 1979 by the filing of a declaration in which they alleged that the Baltimore County Council illegally designated a 405 acre tract of land located on the northeast quadrant of the intersection of Interstate Highway 83 and Shawan Road in Baltimore County (known as the "Bonnie Blink” tract and owned by the Masons) as a "town center” (CT District zoning). This designation was designed to permit a mix of apartments and commercial uses in a commercially zoned tract. The Masons and the other named appellees in this case filed a demurrer to the declaration, a motion to transfer the case from law to equity, a motion for speedy proceedings, and a motion for summary judgment. Appellants noted opposition to the appellees’ various motions and filed their own motion for summary judgment.

By order dated June 4,1979, the trial court sustained the appellees’ demurrer without leave to amend and held all other motions moot. On June 27, 1979, in response to a request by the non-public appellees for clarification of the court’s prior order the trial judge entered an amended order granting summary judgment in favor of the appellees. On July 11,1979, an appeal from the amended order was noted in this Court.

The facts of the case are not in dispute:

On March 5, 1973, the Masons, owners of the "Bonnie Blink” tract, entered into a contract of sale with Arthur M. Fisher, Inc. and MAP Associates as contract purchasers for that tract.

In 1973, the tract was zoned MLR (Manufacturing, Light Restricted) and DR-1 (Residential Density). In 1975, the appellees requested that the property be changed to DR-5.5 and BM-CT (Business Major with a town center classification). That request was received by the Office of Planning and Zoning for Baltimore County which recommended the down-zoning of a portion of the tract to RC-4 (Rural Conservation Zone). That recommendation was adopted by the Baltimore County Planning Board, an advisory citizens’ group. See Baltimore County Code Secs. 22-8 and 22-21 (1978).

On June 18,1976, the appellees petitioned the Baltimore County Council, which was then beginning a series of public hearings on the adoption of the proposed 1976 comprehensive zoning maps to place a BM-CT zoning classification on the 101 acre portion of the "Bonnie Blink” tract then zoned as MLR. On June 22, 1976, a public hearing was held on pending requests for zoning changes in the Third Councilmanic District, the location of the subject property. The appellees’ request for rezoning was heard at that time.

By letter dated September 27, 1976, the appellees suggested an alternative to the County Council — the rezoning of 83.6 acres of the subject property to BM-CT in order to accommodate the proposed shopping center. Subsequently, another public hearing was held by the County Council as to the proposed zoning map for the Third Councilmanic District.

On October 7,1976, the Baltimore County Council passed seven bills adopting the 1976 official comprehensive zoning maps for Baltimore County. The zoning bill as to the Third Councilmanic District, which included the "Bonnie Blink” tract, was passed as Bill No. 110-76. The bill granted the zoning change requested by the appellees. County Executive Theodore G. Venetoulis, on October 18,1976, vetoed Bill No. 110-76 noting "the placement of additional town centers in our county should not occur without a penetrating evaluation of their social and economic impact.” On November 1, 1976, the County Council by unanimous vote overrode Mr. Venetoulis’s veto.

The sole issue to be determined by this appeal is whether the Baltimore County Council acted illegally in placing a town center district zoning classification on the subject property when it adopted the 1976 comprehensive zoning map for the Third Councilmanic District?

Land areas in Baltimore County are divided into zones and districts, and its uses are regulated accordingly. Zones are intended to provide a broad regulation of the use of land, while districts are intended to provide for greater refinement in land use regulation for critical areas of development within the county. See Sec. 100.1 A and B of the Baltimore County Zoning Regulations. Districts, therefore, as identified in Sec. 100.1 B 2, are superimposed upon zones.

In 1967, the County Council passed Bill No. 40 which authorized the Baltimore County Planning Board to designate town centers pursuant to criteria or guidelines which the Planning Board was required to publish. On June 13, 1967, the Planning Board adopted the criteria for town centers which were then attached to the Baltimore County Zoning Regulations as Appendix G.

The CT District was described in Sec. 259.2 D of the Zoning Regulations as follows:

CT Districts may be applied only to primary shopping areas within town centers on land zoned BL, BM, BR and/or ML, the primary shopping area of any such center being that area which: contains or is intended to contain a high incidence of pedestrian-oriented uses of the type ordinarily producing relatively high income and profit per square foot of sales area; includes or is intended to include major business generators (such as department stores); and also includes or is intended to include certain auxiliary services (such as offices) typically not occupying ground-floor frontage. Certain planned shopping centers having such characteristics may lie wholly or partially within CT districts.

The definition of a CT District requires that such districts be within "town centers.”

The Planning Board also adopted the following criteria from Sec. 3 of Bill No. 40 for the establishment of "town center”:

A locality designated and delimited as a town center by the Planning Board to serve as the primary center for commercial (including supporting commercial) and higher-density residential development for an area having a population of approximately 100,000 or more persons, and meeting criterial or guidelines adopted and published by the Planning Board. Industrial, lower density, residential, and institutional uses are not excluded from town centers (when allowed under the regulations for the zones in which they are located).

Appellants point out that when the 1976 comprehensive plan was adopted by the County Council which granted CT districting to this property, there were in existence seven town centers previously designated by the Planning Board. The Town Center and Town Center Distributor By-Pass Map adopted with Appendix G by the Planning Board in 1967 indicates that the Towson Town Center service area extends to within a half mile of the "Bonnie Blink” property. Appendix G "designation criteria” No. 3 requires that each town center possess an existing or potential major market area with a projected population of approximately 100,000 persons or more within its designation. The criteria further prohibit "market service areas” to serve as a basis for more than one town center. It is conceded that the subject property cannot meet the criteria area unless the Towson market area is included in the calculation. It is to be noted that the Baltimore County Council has never adopted or approved the criteria promulgated by the Planning Board.

Appellants contend that the County Council acted illegally, when, in adopting Bill No. 110-76 as the comprehensive zoning map for the Third Councilmanic District, it placed a CT District upon a portion of the "Bonnie Blink” property without the County Planning Board having previously designated the area in which the subject property was located as a "town center.” This argument is predicated on the appellants’ interpretation of Secs. 101 and 259.2 D of the Baltimore County Zoning Regulations which they urge prohibit the County Council from applying CT Districts to properties not located in an area which has been designated as a "town center” by the Planning Board.

We do not agree with appellants’ reading of the effect of these sections. The Court of Appeals, in Fuller v. County Commissioners, 214 Md. 168, 172-73, 133 A.2d 397 (1957), stated the Court’s function in reviewing comprehensive rezoning legislation as follows:

In adopting the new zoning map for the entire Eighth District, the County Commissioners were acting in a legislative capacity. The Court’s function to review such action is restricted and its scope is narrow. The legislative exercise of the police power is presumed to be valid and a successful attack upon it must show affirmatively and clearly that it is arbitrary, capricious, discriminatory or illegal.

Zoning decisions which are made during a comprehensive rezoning process are strongly presumed to be correct. See Heller v. Prince George’s County, 264 Md. 410, 412, 286 A.2d 772 (1972); Iverson v. Zoning Bd., 22 Md. App. 265, 267-68, 322 A.2d 569 (1974). The reason for this strong presumption is that when engaged in comprehensive rezoning, the County Council is not considering individual properties on an isolated or piecemeal basis, but rather, it is considering the overall needs and development of the County as a whole. See McBee v. Baltimore County, 221 Md. 312, 316-17, 157 A.2d 258 (1960); Grooms v. La Vale Zoning Board, 27 Md. App. 266, 279, 340 A.2d 385 (1975).

Comprehensive rezoning is a vital legislative function, and in making zoning decisions during the comprehensive rezoning process, a County Council is exercising what has been described as its "plenary” legislative power. The power is broad and is limited only by the constitutional restriction that the Council’s action "bears a substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare...Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 66, 254 A.2d 700 (1969); Coppolino v. County Board of Appeals, 23 Md. App. 358, 370, 328 A.2d 55 (1974).

We conclude that Secs. 101 and 259.2 of the Zoning Regulations for Baltimore County do not deprive the County Council of the plenary power which it exercises during the comprehensive zoning process. At the most, these sections provide interpretative guidance to the Planning Board, the Zoning Commissioner and property owners who might seek interim zoning reclassification of their properties pursuant to Secs. 22-24 of the Baltimore County Code (1978).

If we were to adopt appellants’ contention in this case that the Planning Board was vested by the Baltimore County Council with certain powers regarding the establishment of "town centers” that are not only recommendatory in nature but also preliminary prerequisites to the establishment of such "town centers” then it seems clear to us such a zoning procedure would amount to an illegal delegation of the County Council’s legislative powers to the citizens’ advisory board. This is particularly so since Secs. 101 and 259.2 D, which were adopted by the County Council contain no standards governing the determination by the Planning Board as to which areas may be designated as "town centers.” See Prince George’s County v. McBride, 268 Md. 522, 527-30, 302 A.2d 620 (1973). We conclude that these sections do not limit the plenary power of the County Council to zone property throughout the County on a comprehensive basis. The Planning Board has no veto powers in the zoning process. This is clear from Sec. 22-8 of the Baltimore County Code (1978) which specifically provides that the Planning Board has an "advisory role” in the zoning process. Such a role does not sustain appellants’ position that Secs. 101 and 259.2 D place with the Planning Board the final power to determine what areas may be zoned "town centers.” See Nottingham Village, Inc. v. Baltimore County, 266 Md. 339, 354, 292 A.2d 680 (1972); Miller v. Abrahams, 239 Md. 263, 272, 211 A.2d 309 (1965).

While the wisdom of the County Council’s comprehensive rezoning in the Third Councilmanic District and the adoption of the CT District as being applicable to the subject property may be arguable, the Council made its decision after full and open hearings held in accordance with the applicable law and in the exercise of its plenary power. We do not find that the County Council’s action was arbitrary, capricious, discriminatory or illegal. Nor do we find that the trial judge was clearly erroneous in granting summary judgment in favor of the appellees.

Judgment aífírmed, costs to be paid by appellants.

      . Suit involving the same tract and the same issues was filed by the Baltimore County Planning Association and the Valleys Planning Council. The trial judge ruled that these community associations lacked standing to bring suit. No issue was raised on appeal as to the propriety of this ruling, and we do not consider it in this case.

      . MAP Associates has been actively engaged in the development of the "Bonnie Blink” tract as a proposed regional shopping center since the original sales contract was entered into by the parties. MAP Associates at one time assigned its contract interest to Arlen Realty, Inc. which later re-assigned its interest to MAP. MAP then assigned its contract rights to Shawan Associates, a partnership of which MAP was the general partner. As the identity of the contract purchaser varied from time to time during the course of these proceedings and as that status is not material to the issues raised by this appeal, we shall refer to the contract purchaser throughout as MAP Associates.

      . The "comprehensive map” for Baltimore County which is adopted by the County Council during the quadrennial comprehensive rezoning process is actually a series of comprehensive maps on a district by district basis. The comprehensive maps are adopted at the same time and by the same process and are usually referred to collectively as the County’s comprehensive zoning map.

      . The Planning Board is a group composed of twelve citizens and four County officers, the latter being non-voting members. See Baltimore County Code, Sec. 22-3 (1978).

      . Appellants rely upon Appendix G to the Baltimore County Zoning Regulations which includes a statement of the criteria promulgated by the Planning Board as a guide for determining whether to designate specific areas as "town centers.” These criteria have never been adopted by the County Council but were apparently intended to be used for the guidance of the Planning Board in reaching its recommendations.


author: Couch, J.,

text:
    GEORGE WILLIAM BARB et al. v. ROBERT WALLACE
    [No. 814,
    September Term, 1979.]

      Decided April 11, 1980.

    The cause was argued before Lowe, Melvin and Couch, JJ.

      John J. Coyle, Jr., with whom was Gary G. Leasure on the brief, for appellants.

      Robert H. Reinhart, with whom were Walsh, Walsh & Reinhart on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

At the age of sixteen, George William Barb purchased a small, used gasoline powered engine for five dollars from Robert Wallace for use in a go-cart. A short while after George returned home he attempted to start the engine, which was mounted on a sturdy base at the time of purchase. Almost immediately upon starting, the engine exploded and caused severe injuries to George’s head. George and his father, appellants here, sued appellee, Robert Wallace, in the Circuit Court for Allegany County. Appellee’s demurrer to the original declaration was sustained; appellants then filed an amended declaration containing three counts. Count One sounded in tort and claimed that appellee failed to warn George that the engine had an internal defect of which appellee was aware. Count Two alleged breaches of express and implied warranties. Count Three was brought by George’s father to recover the expenses incurred as a result of the engine’s explosion. Appellee pleaded to the amended declaration, generally denying any responsibility.

Appellee’s attorney filed a motion for summary judgment, which was accompanied by the depositions he had taken of George and George’s mother. Written memoranda of law were submitted by both sides, but no hearing was held on the motion since none was requested. Following consideration of the pleadings, depositions, and memoranda, the trial court concluded that appellee was entitled to summary judgment on all counts. George and his father appeal the entry of judgment in appellee’s favor.

Appellants take issue with the trial court’s entry of summary judgment on Count Two, which alleges that appellee breached both an express warranty and an implied warranty of fitness for a particular purpose, and on Count Three, which seeks recovery of medical expenses incurred by George’s father. Appellants concede that summary judgment was properly entered with respect to Count One since there was no evidence to support their contention.

George, in his deposition taken by appellee’s attorney, described the circumstances attendant to his purchase of the engine and the accident which followed. We shall set forth the relevant excerpts from that dispostion:

"Q. At the time that you purchased the motor, did you have any conversation with the Defendant Mr. Wallace about it?
A. Yes.
Q. Do you recall what that conversation was?
A. Yes. I asked him if the engine ran good, and he said he had been using it for uses around the farm, and he said it ran real good.
Q. Did you indicate to him what use you were going to make of it?
A. Yes.
Q. And what was that?
A. A go-cart.
Q. What else can you recall now of any conversation you had with Mr. Wallace about that motor?
A. That was about all we talked about. He told me it ran good. And I told him I was, you know, wanted it for a go-cart. And he said it would work cause the shaft was out of the side of the engine.
Q. You did not try to start it at that time?
A. No. I told him I didn’t want to start it. I took his word that it ran good. Because I didn’t want to put it in the car hot and run it home.
Q. Can you describe how you start this particular motor?
A. It had a kick starter. And all he told me I had to do was just kick down on it and it would start. And I wanted to shut it off press against the spark plug, the metal cap that come up, and it would shut it off.
Q. Could you have started it right there?
* * *
A. At his property?
Q. Yes.
A. Yeah. It had gas and all in it he told me.
* * *
Q. Did you in fact install this engine in a go-cart?
A. No, I didn’t.
Q. What did you do with it when you took it from his premises?
A. I took it to my house, and took it out of the car and set it on my grandmother’s back porch.
* * *
Q. When did you first attempt to start it?
A. About twenty minutes after I was home.
Q. On her back porch?
* * *
A. Uh huh.
Q. You attempted to start it by depressing it with your foot?
A. Uh huh.
Q. Had you put gasoline in it?
A. No. I didn’t have to.
Q. You didn’t put anything in it?
A. No. But it was ready to start he said.
Q. You didn’t do anything but just put your foot on it and depress the starting lever or kick starter?
* * *
A. Press it down. Uh huh.
Q. And what happened when you did that?
A. I heard it start, and then that’s all I remember.
Q. What happened to the engine?
A. I have no idea. I guess it blew up. Cause that’s all I remember is hearing it start, and then it just — that was it.”

It is well established that summary judgment procedure under Md. Rule 610 is not a substitute for trial but rather is a determination of whether there are disputed issues of fact that should be tried. See Merchants Mtg. Co. v. Lubow, 275 Md. 208, 339 A.2d 664 (1975), and Impala, Ltd. v. Impala Sales (U.S.A.) Inc., 283 Md. 296, 389 A.2d 887 (1978). Furthermore, it is also well settled that in determining whether a summary judgment should be granted, all facts and inferences drawn from those facts should, at that stage of the proceedings, be viewed in the light most favorable to the party against whom summary judgment is sought. Mazur v. Scavone, 37 Md. App. 695, 378 A.2d 1355 (1977); see also Berkey v. Delia, 287 Md. 302, 413 A.2d 170 (1980). Keeping these considerations in mind, we shall examine the allegations in Count Two and the record, particularly George’s deposition, to determine whether there was a genuine dispute as to the existence of an express warranty and an implied warranty of fitness for a particular purpose.

Express Warranty

Md. Com. Law Code Ann. (hereinafter U.C.C.), Section 2-313 (1975), provides in pertinent part:

"(1) Express warranties by the seller are created as follows:
(a) any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes a part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.”

The only statement of fact before the court bearing on this issue appears in George’s deposition. Appellants claim that appellee’s assurances, made prior to the sale, that the engine "ran real good”, was ready to start, that he had been using it around the farm, and that it would work for a go-cart since "the shaft was out the side of the engine”, viewed in a light most favorable to appellants, reveal that the seller (appellee) made an affirmation of fact to the buyer relating to the goods which became a part of the basis of the bargain.

Appellee’s response focuses only upon the following excerpt from George’s deposition:

"Q. Do you recall what the conversation was?
A. Yes. I asked him if the engine ran good, and he said he had been using it for uses around the farm, and he said it ran real good.”

Appellee contends that this statement is a recounting of appellee’s experience with the engine and cannot fairly be regarded as part of the negotiated contract of sale, although at argument appellee conceded that the statement formed the basis of the bargain. According to appellee, the import of appellee’s statement was that he had used the engine around his farm and that it functioned properly at that time for the uses to which it was put by appellee. Reliance is placed upon our decision in McCarty v. E. J. Korvette, 28 Md. App. 421, 347 A.2d 253 (1975), for the proposition that appellee’s statement does not relate to existing quality, capability, or condition of the object. Language couched in the past tense, in appellee’s view, relates to past quality, capability, or condition.

We can view neither McCarty nor George’s account of the transaction as narrowly as appellee urges. Judge Davidson for this Court in McCarty, supra at 425, observed that in White Automobile Co. v. Dorsey, 119 Md. 251, 86 A. 617 (1913), the Court of Appeals, prior to the adoption of the U.C.C. in Maryland, recognized that language relating to the existing qualities, capabilities, and condition of goods constituted an express warranty. The Court drew a distinction, however, between an express warranty and "[l]anguage promising that the seller would repair goods in the event of a breach of the warranty, [which] . .. did not constitute an express warranty, but rather an executory contractual undertaking to be performed in the future.” McCarty, supra at 426.

In Rittenhouse, Winterson Auto Co. v. Kissner, 129 Md. 102, 98 A. 361 (1916), the Court found an express warranty, rather than an executory promise in the seller’s assurance that a truck would perform in a certain way for a given period of time in the future. The Court of Appeals stated that, "The assurance to that effect was not an executory promise, but had reference to an existing quality or capacity, and was hence closely akin to the other representations with which it was joined.” Id. at 105. Judge Davidson, following a determination that § 2-313 required no "departure from these basic principles which were applied under both the common law and the Uniform Sales Act”, considered the warranty in McCarty and concluded:

"Here the language on the invoice given to the buyer to the effect that 'the tires identified hereon are guaranteed for 36,000 miles ... against all road hazards, including ... blow out ...’ constitutes an affirmation that the tires are of such existing quality, capacity and condition as to make them capable of rendering service without blowing out before they have been used for 36,000 miles. This assurance of the serviceability of the tires for a given number of miles, because it is a representation as to the existing quality, capacity and condition of the tires, constitutes an express warranty that the tires will not blow out during the first 36,000 miles of use.”

McCarty v. Korvette, Inc., supra at 427.

While both McCarty and Rittenhouse involved warranties concerning the future performance of the goods, we believe the rationale of those two cases governs the present factual situation involving an affirmation of past performance which refers directly to the existing qualities, capabilities or condition of the goods. We believe that two inferences can be drawn from George’s version of appellee’s statement made prior to the sale that "(appellee) had been using (the engine) around the farm, and he said it ran real good.” The first inference, drawn by appellee, that appellee was merely relating his past experience with the engine, would provide no basis for the finding of an express warranty under § 2-313 since it does not have any reference to the existing qualities, capabilities or condition of the goods. Appellee, however, views this portion of George’s testimony in a vacuum. We believe it reasonably can be inferred that George’s inquiries centered upon the present condition of the engine and appellee’s answers were responsive to George’s concern. George also related that he refused an opportunity to start the engine because, "I took his word that it ran good . . . And all he told me I had to do was just kick down on it and it would start.” From this, an inference can be drawn that appellee’s side of the discussion referred to the existing quality, capability, and condition of the goods and not strictly to the engine’s past performance, which is the inference appellee would have us draw. The facts here are susceptible of more than one permissible inference and the choice between these inferences should be made by the trier of fact and should not be resolved on a motion for summary judgment. Washington Homes v. Interstate Land Development, 281 Md. 712, 382 A.2d 555 (1978).

Our review of cases in other states which have adopted § 2-313 reveals a similar hesitancy on the part of courts to dispense with the question of whether an express warranty exists as a matter of law. A Florida Court, in reversing a summary judgment rendered in favor of a defendant in an express warranty action under the Florida Commercial Code, made observations which apply with equal force to the present case:

"The most prominent principle in the construction of warranties is the ascertainment of the intentions of the parties in light of the surrounding circumstances. (Citation omitted.) At minimum, these diverse contentions create a jury question as to the facts at issue in the understanding between the parties. On the present posture of the case it cannot fairly be said that, as a matter of law, no express warranty was created, especially since the record reveals no deposition by the employee (of the seller who allegedly made the affirmation of fact upon which the allegation of express warranty was made).”

Knipp v. Weinbaum, 351 So. 2d 1081, 1085 (Fla. App. 1977), cert. denied, 357 So. 2d 188 (Fla. S. Ct. 1978). In Woodruff v. Clark County Farm Bureau Coop. Assoc., 153 Ind. App. 31, 286 N.E.2d 188 (1972), the Indiana Court of Appeals reversed the trial court’s grant of summary judgment upon the ground that where the facts or affirmations relied upon to prove the existence of an express warranty are entirely parol, then the trier of fact must determine whether they amount to express warranties. Id. at 199; see also Young & Cooper v. Vestring, 214 Kan. 311, 521 P.2d 281 (1974). As a general matter the existence of an express warranty is a question of fact, see Rogers v. Crest Motors, Inc., 516 P.2d 445, 447 (Colo. App. 1973); Janssen v. Hook, 1 Ill. App. 3d 318, 272 N.E.2d 385 (1971); Putensen v. Clay Adams, Inc., 12 Cal. App. 3d 1062, 91 Cal. Rptr. 319 (1970), which does not lend itself easily to resolution on a motion for summary judgment. Accordingly, we conclude, on the facts and circumstances of this case, that the question of the existence of an express warranty, and specifically the issue of whether appellee’s statements exclusively referred to the past operation of the engine, is a matter which should be resolved by the trier of fact and not by the entry of summary judgment.

Implied Warranty of Fitness for a Particular Use

Appellant contends that the allegation of implied warranty of fitness for a particular purpose, coupled with George’s deposition testimony, raises a material issue of fact which should be decided by the trier of fact. We agree. Md. Com. Law Code Ann. § 2-315 (1) (1975) provides as follows:

"Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under (§ 2-316) an implied warranty that the goods shall be fit for such purpose.”

George’s deposition discloses that George informed appellee that he intended to use the engine in a "go-cart”. The appellee responded, according to George, that the engine could be used in a "go-cart” because the "shaft was out the side of the engine” and that the engine "ran good”. Appellee admits in his brief that he was apprised of the purpose for which George was purchasing the engine. The issue, then, in our review of the trial court’s granting of the motion for summary judgment, is whether there is a genuine dispute as to George’s reliance on the appellee’s skill or judgment. See Shay v. Joseph, 219 Md. 273, 275, 149 A.2d 3 (1959).

Appellee, in his brief, relies upon George’s statement that at the time he purchased the engine he was taking a course in auto mechanics where he had worked on small engines for the proposition that George’s judgment and skill was at least as good as appellee’s. We believe this evidence presents a factual dispute as to whether George relied upon himself or acutally relied upon appellee’s skill and judgment to select or furnish suitable goods. Although the evidence is undisputed, the facts here are susceptible of more than one permissible inference and the choice between these inferences should be made by the trier of fact. Washington Homes v. Interstate Land Development, supra. Moreover, Comment 1 to § 2-315 states that the question of whether an implied warranty of fitness for a particular purpose exists in any particular case is basically a question of fact to be determined by the circumstances of the contracting. See U.S. Fibres, Inc. v. Proctor & Schwartz, Inc., 358 F. Supp. 449 (E.D. Mich. 1972), aff'd 509 F.2d 1043 (6th Cir. 1975); Metowski v. Traid Corp., 28 Cal. App. 3d 332, 104 Cal. Rptr. 599 (1972). The fact that George may have had some experience with engines does not necessarily preclude the possibility that he was relying upon appellee’s knowledge of the capabilities of this particular engine. We believe this raises a factual dispute which should not have been resolved on a motion for summary judgment.

We note that § 2-315 does not limit the application of an implied warranty of fitness for a particular purpose to merchants only. The official comment to that section states that, "Although normally the warranty will arise only where the seller is a merchant with the appropriate 'skill or judgment’, it can arise as to nonmerchants where this is justified by the particular circumstances.” Md. Com. Law Code Ann. § 2-315, Comment 4 (1975). The burden of proof carried by the buyer where a nonmerchant seller is involved poses greater difficulties, particularly on the issue of appellee’s possession of appropriate skill and judgment, but it does not warrant the granting of a motion for summary judgment. This issue should be submitted to the trier of fact for determination as to whether appellants can overcome this obstacle.

Count Three relates to George’s father’s claim and, of course, is derivative of Counts One and Two. Since we have concluded the trial court erred in granting summary judgment, so far as the express warranty and implied warranty of fitness for a particular use theories of Count Two are concerned, it follows that Count Three is also viable.

Judgment reversed as to Counts Two and Three; case remanded for further proceedings.

Costs to be paid by appellee.

      . In Rittenhouse, Winterson Auto Co. v. Kissner, supra, it was alleged that seller represented to the buyer of a truck that it:
      "was a first class car, was as good as new and was in sound and first class condition; and that if it was not abused but handled with care, it would last the plaintiff at least four years.” Id at 104.


author: Moore, J.,

text:
    ROBERT UHLER v. SECRETARY OF HEALTH AND MENTAL HYGIENE
    [No. 833,
    September Term, 1979.]

      Decided April 11, 1980.

    The cause was argued before Moylan, Moore and Wilner, JJ.

      Charles O. Fisher, with whom were Walsh & Fisher on the brief, for appellant.

      Standish McCleary, III, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This is an appeal by Robert Uhler, the defendant-appellant, from an order of the Circuit Court for Carroll County which required him to comply with an administrative order of the Secretary of Health and Mental Hygiene (Secretary), barring him from operating a landfill on his farm. Mr. Uhler argues in this Court that the lower court erred when it ruled that he had forfeited his right to defend against enforcement of the Secretary’s order because he had failed to pursue an appeal pursuant to Md. Ann. Code, art. 43, § 404 (1980). He also contends that the Secretary does not have jurisdiction over the landfill because it is not a system "for public use” within the provisions of Md. Ann. Code, art. 43, § 394 (1980).

I

Mr. Uhler purchased his farm in Finksburg in 1965. A large ravine, covering about five acres, was in existence when he took possession, and he immediately attempted to reclaim the land for farming purposes by filling the ravine with farm wastes. In addition, he asked his brother, who operated a hauling business, to deposit in the ravine any rubble that he had occasion to haul. This arrangement existed for five years prior to August 14,1978. On that date Mr. Uhler was served with a written order issued by the Secretary commanding that: "All dumping at this site cease immediately....” The order also required him to cover the landfill with a minimum of two feet of earth and to grade and seed the area. In addition he was informed that: "Engineering plans and specifications ... must be submitted ... if the site is proposed for future use....” A letter accompanying the order said: "If you have any further questions, please do not hesitate to communicate with this office.”

At the hearing below, Mr. Uhler testified that he called the office and spoke to Richard Nace, a State geologist. According to appellant:

"[Mr. Nace] said if there’s any more trouble, he’d give me a call. Otherwise, if he didn’t call me, the way I understood him, it would be all right to go ahead, that [the order] wouldn’t apply to me.”

It is undisputed that Mr. Uhler took no corrective action after talking to Mr. Nace in August, 1978.

On October 30,1978, the Secretary filed a bill of complaint in the circuit court seeking a mandatory injunction and civil penalties against Mr. Uhler for violation of the August 14, 1978 administrative order. In his answer he claimed, inter alia, that the landfill was not operated "for public use” and that the Secretary’s order "denied the defendant procedural and substantive due process.”

In due course, a hearing was held in the circuit court, and testimony was taken from Norman Chapman, a consultant with the State, and Mr. Uhler. The court held the case, sub curia, and thereafter filed a "memorandum order” in which it held that Mr. Uhler had "forfeited his right” to contest the order of August 14, 1978 because he failed to seek relief under the procedure for judicial review provided by Md. Ann. Code, art. 43, § 404 (1980), supra, n. 1.

On appeal his main contention is that the Secretary’s order did not comport with the requirements of due process, specifically that, "[t]he failure to provide notice and an opportunity to be heard renders the Secretary’s Order void.” We agree.

II

Preliminarily, we observe that the lower court was inaccurate in holding that the remedy established by Md. Ann. Code, art. 43, § 404 (1980) was available to Mr. Uhler at the time he received the Secretary’s order. That avenue of relief was not then available; his proper course, at that juncture, was an appeal to the Board of Review of the Department of Health and Mental Hygiene, pursuant to Md. Ann. Code, art. 41, § 206B (1979 Cum. Supp.). Commission on Medical Discipline v. Bendler, 280 Md. 326, 373 A.2d 1232 (1977). Indeed, had appellant filed suit under § 404, his action would have succumbed before a defense that he had failed to exhaust his administrative remedies. Id. at 330, 373 A.2d at 1234.

The question properly before the lower court, therefore, and now confronting this Court, is whether Mr. Uhler’s failure seasonably to pursue his administrative remedy, at the time the order issued, constituted a waiver. In our view, there could have been a waiver — but only if Mr. Uhler had received proper notice from the Secretary of his right to an administrative appeal, a fundamental requirement of due process. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

Although, as the Supreme Court observed in Board of Regents v. Roth, 408 U.S. 564, 570 (1972), "the range of interests protected by procedural due process is not infinite,” clearly Mr. Uhler’s real property, including the use of his ravine, is protected. With respect to protected interests, the Supreme Court has also held, in language strikingly apposite here:

"While '[m]any controversies have raged about ... the Due Process Clause,’ ... it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate [a protected] interest..., it must afford 'notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.”

Bell v. Burson, 402 U.S. 535, 542 (1971) (footnote omitted) (emphasis in original), quoting in part from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

Here, without any prior warning or notification of any kind, appellant’s right to the use of his ravine was terminated "immediately.” The ex parte order was itself the property owner’s first notification of alleged illegal landfill activity; and neither the order nor the accompanying letter informed him of his right to an administrative appeal pursuant to Md. Ann. Code, art. 41, § 206B (1979 Cum. Supp.).

In a recent case involving "[l]ay consumers of electrical service,” whose service had been terminated, the Supreme Court addressed itself to the constitutional requirement of notice in this manner:

"Petitioners’ notification procedure, while adequate to apprise the Crafts of the threat of termination of service, was not 'reasonably calculated’ to inform them of the availability of 'an opportunity to present their objections’ to their bills. . . . The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending 'hearing.’ ” Notice in a case of this kind does not comport with constitutional requirements when it does not advise the customer of the availability of a procedure for protesting a proposed termination of utility service as unjustified. As no such notice was given respondents — despite 'good faith efforts’ on their part — they were deprived of the notice which was their due.”

Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 98 S. Ct. 1554, 1563 (1978) (citation omitted) (footnotes omitted) (emphasis added).

Notice is an especially compelling requirement in circumstances such as exist here where the order was issued ex parte and against a layman without knowledge of the intricacies, indeed the existence, of administrative and judicial procedures. Clearly, the Secretary’s offer of assistance if there were "any questions,” does not immunize the "notice” provided here against Mr. Uhler’s due process claim. He was never told that he had important administrative and judicial remedies which could be lost by delay in exercising them, nor was he told what those rights were.

"[W]hen notice is a person’s due, process which is a mere gesture is not due process.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). The notice provided to Mr. Uhler in the instant case was not reasonable, did not rise above a "mere gesture,” and certainly did not comport with the due process requirements of the Fourteenth Amendment and Article 23 of the Maryland Declaration of Rights. See generally Barry Properties, Inc. v. Fick Brothers Roofing Co., 277 Md. 15, 353 A.2d 222 (1976). See also Allied American Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 615-16, 150 A.2d 421, 426-27 (1959) (Fourteenth Amendment and Article 23 have the "same meaning and effect in reference to an exaction of property”).

"The essence of procedural due process is fundamental fairness. This embodies adequate advance notice and an opportunity to be heard prior to State action resulting in deprivation of a significant property interest.... It likewise entitles a litigant to timely notice of decisions which have adjudicated his property interests in relation to available appellate remedies.”

Mountain States Telephone and Telegraph Co. v. Department of Labor and Employment, 184 Colo. 334, 338, 520 P.2d 586, 588-89 (1974) (citation omitted) (emphasis added) (due process requires that notice of decision of referee granting award of unemployment benefits be given to employer’s counsel where absence of notice precluded timely filing of administrative appeal).

It follows, then, that because the Secretary’s order did not satisfy constitutional due process requirements, it is void ab initio. North Alabama Express, Inc. v. United States, 585 F.2d 783, 786 (5th Cir. 1978) ("Failure to provide adequate notice is a jurisdictional defect that invalidates administrative action until the defect is cured.”). The circuit court erred in not granting Mr. Uhler’s prayer that the bill of complaint be dismissed. Of course, nothing in our ruling prevents the Secretary from issuing a new order that comports with the requirements of due process of law.

Judgment reversed; cause remanded to the Circuit Court for Carroll County with instructions to dismiss the bill of complaint; costs to be paid by the appellee.

      . This Code provision is entitled "Appeals” and authorizes the commencement of an action, within ten days after the service of an order of the State Board of Health with which a person is dissatisfied, in the Circuit Court for any county or in any court of Baltimore City of appropriate jurisdiction. In any such action, the State Board of Health would be the named defendant and the action would be brought in order to vacate and set aside the order on the ground that it is "unlawful or unreasonable or that said order is not necessary for the protection of the public health or comfort.”
      It is also provided that the Board of Health file an answer within ten days and that the case thereafter stand ready for trial upon fifteen days notice to either party. Such actions are accorded precedence over any civil cause except appeals from an order of the Public Service Commission.
      As of July 1, 1969 "all rights, powers, duties, obligations and functions conferred upon or exercised by the State Board of Health” were transferred to the Secretary of Health and Mental Hygiene. Md. Ann. Code, art. 43, § 1H (1980).

      . The Board of Review was created by Md. Ann. Code, art. 41, § 206A (1978, 1979 Cum. Supp.) and was mandated by § 206A (c) to "hear and determine appeals from those decisions of the Secretary or any departments or other agencies within the Department of Health and Mental Hygiene which are subject to judicial review under § 255 [Administrative Procedure Act] of this article or under any other provisions of law.” Section 206B sets forth the procedure to be followed in all cases appealable to the Board under § 206A. It begins by providing that "a person aggrieved” shall first make known to the person responsible for the decision the basis for his complaint, "with a request that it be reviewed.” Thirty days are allowed for a "satisfactory resolution,” in the absence of which the complainant may seek further review under § 206B (1) by filing a written complaint with the chief executive officer of the department "or other agency.” Thereafter, a party aggrieved "may file an appeal to the Board of Review under § 206B (2).

      . In Bendler, a physician’s license was suspended for incompetence and she filed suit in the Circuit Court for Montgomery County under Md. Ann. Code, art. 43, § 130 (p) (1980), permitting appeals to the Baltimore City Court or any county circuit court from the suspension or revocation of a Physician’s license by the Commission on Medical Discipline established by 130. The Court, in an opinion by Chief Judge Murphy, held that this provision and the provisions of Md. Ann. Code, art. 43, § 206B were not inconsistent with each other and that a decision by the Board of. Review under § 206B is "an absolute prerequisite to judicial review.” 280 Md. at 329, 373 A.2d at 1233.

        . Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 14, n. 15, 98 S. Ct. 1554, 1563, n. 15 (1978).

      . In light of our disposition of the case, we do not consider Mr. Uhler’s challenge to the Secretary’s jurisdiction.


author: Morton, J.,

text:
    STENA S. STEVENS, Personal Representative of the Estate of Rose D. Stanley v. BARRY R. BARNHART et al.
    [No. 889,
    September Term, 1979.]

      Decided April 11, 1980.

    The cause was argued before Gilbert, C. J., and Morton and Thompson, JJ.

      Samuel D. Hill, with whom were White, Mindel, Clarke & Hill on the brief, for appellant.

      M. Natalie McSherry, with whom were William B. Whiteford, Harry S. Johnson and Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellees.
   Morton, J.,

delivered the opinion of the Court.

The appellant, as personal representative of the estate of her mother, Rose D. Stanley, brought suit in the Circuit Court for Cecil County against Dr. Barry R. Barnhart and Dr. Jay S. Barnhart, Jr., appellees, charging them with medical malpractice in the course of their treatment of Mrs. Stanley while she was a patient in Union Hospital from September 20,1974, until her discharge on October 9,1974. The case was tried before a jury (Mackey, J., presiding) and the jury rendered a verdict in favor of appellees.

The record reveals that Mrs. Stanley was admitted to Union Hospital because of injuries she sustained in a fall. Her regular doctor, Dr. Cuza, was not available and she then became a patient of the appellees. They continued her on medicine previously prescribed by Dr. Cuza except that they changed the high blood pressure medicine from butazerpizide to butazide. The latter contained a combination of two of the three drugs making up the former. They also prescribed neosporin, an ointment to be applied to the abrasions she suffered in the fall.

Some ten days after her admission to the hospital she developed a rash and an itching sensation over much of her body which was described by Dr. Jay Barnhart as "severe generalized erythematous rash, especially on the back where she has many self-inflicted excoriations which are bleeding. This rash looks like a contact dermatitis and may be due to the neosporin ointment.”

The application of neosporin to the abrased area on her arm was stopped. Thereafter the progress notes indicate that she was treated for the rash and that the rash condition seemed to have improved. Mrs. Stanley was released from the hospital on October 9, 1974. She was given a thirty day supply of high blood pressure medicine and told to make a follow up visit to the Barnharts’ office at the end of ten days.

When the rash did not subside, she entered the University of Pennsylvania Hospital on October 14, 1974. She was placed under the care of Dr. Leyden. He testified that he suspected the rash was a result of a drug reaction and took her off all drugs, including butazide, and treated her with other medication. Her condition seemed to improve and she was discharged from the hospital on November 15, 1974.

The rash did not continue to improve and she entered The Johns Hopkins Hospital for her skin problem on July 2, 1975, and stayed there until July 28, 1975. Later she was admitted to Union Hospital where she died on August 29, 1975, from causes not related to the skin condition.

At trial the appellant called as an expert witness Dr. Norton Herring, a surgeon practicing in California. He testified that in his opinion good medical judgment would have called for the suspension of all medications upon discovering the rash and not just the neosporin ointment. He also stated that the blood pressure medicine probably caused the rash and that if it had been discontinued immediately, the rash should have been ninety percent cured by the time Mrs. Stanley left the Union Hospital on October 9, 1974. He said that although all the medicines were stopped at the University of Pennsylvania Hospital, her reaction by that time had become irreversible.

Dr. Leyden, who treated Mrs. Stanley at the University of Pennsylvania Hospital, said that the best way to ascertain what drug was causing the rash was to cease all medication and then reinstitute them one at a time to see which one was causing the reaction. He thought butazide was the most likely culprit and that is why he ordered Mrs. Stanley off it. He agreed that if the rash started where the neosporin was applied and that the rash condition improved when it was not applied, it was not unreasonable to suspect that the rash was caused by the neosporin.

Dr. Lanzi was called by the defense as an expert witness and testified that he agreed with the conclusions and treatment accorded Mrs. Stanley by the appellees. It was his opinion that their conduct "did conform with the medical standards of this community as I would have practiced medicine.”

The appellant first contends that the trial judge erred in not compelling the appellees to furnish the appellant with the names of the doctors they consulted with as experts in preparing for trial, but who were not going to be called as witnesses. The appellant concedes that "[i]t might be argued that the decision of the Court of Appeals in Wagonheim v. Md. State Bd. of Censors, 255 Md. 297, 309 ... is dispositive, or that Md. Rule 400 d and f by implication precludes discovery of experts consulted but not to be called as witnesses.” It is argued, however, that "there should be a distinction made between the ordinary case and a malpractice case” because of a "conspiracy of silence.” While we are not entirely clear what the term means and although there may have been a time when doctors seemingly were reluctant to testify against each other in a malpractice case, we decline to take judicial notice that such a "conspiracy” exists today.

In Wagonheim, the Court of Appeals said:

"In the instant case the appellants requested not only the names of the actual witnesses which the State proposed to use at the hearing, but all of the individuals who may have been requested by the State to view the film for the possible purpose of being used as a witness, or for consultation with the State concerning the obscene aspects of the film. We do not think that discovery in civil cases as promulgated by Maryland Rule 417 goes to that which is in essence the work product of the attorney accumulated in the preparation of the case.” 255 Md. 309.

We agree with the argument that Wagonheim is dispositive of appellant’s first contention.

For the same reason we find no merit in appellant’s second contention that "[t]he Court erred in refusing to allow the Plaintiffs attorney to question the Defendant Jay [Barnhart] before the jury about the doctors with whom he conferred about the Defendants’ alleged malpractice.”

It appears that at the voir dire stage of the trial nine prospective jurors from the entire panel of some thirty jurors advised the court that they were patients of Dr. Lanzi and another juror knew him as a fellow church member. Each of the ten jurors was asked if that fact would prevent him or her from rendering a fair and impartial verdict based solely on the evidence and each responded that it would not. The trial judge thereupon overruled appellant’s motion that these jurors be stricken for cause. The jury was then selected and it turned out that of the twelve seated and the alternate, four were patients of Dr. Lanzi and one was a fellow church goer.

After Dr. Lanzi completed his testimony, appellant moved for a mistrial because of alleged prejudice suffered as a result of the five jurors’ relationship to Dr. Lanzi. The same alleged prejudice formed the basis of the appellant’s motion for a new trial which was filed after the jury’s verdict. Appellant raised the issues separately, but suggests that they be treated together. We agree.

Appellant recognizes that "[a] surface glance at the law applicable without delving deeper might lead this Court to conclude that the Trial Judge was correct in not striking these jurors for cause, when they said that their relationship with Dr. Lanzi would not prejudice their decision.” But if we give more than a surface glance and delve deeper into the applicable law, the trial judge cannot be faulted for refusing to strike these jurors for cause. In Borman v. State, 1 Md. App. 276 (1967), this Court stated, at 279:

"The purpose of the voir dire examination is to ascertain the existence of cause for disqualification and for no other purpose. Giles v. State, 229 Md. 370 (1962). Neither mere acquaintance with an individual or group, nor mere relationship to witnesses, other than parties, is sufficient basis for challenging a prospective juror for cause. Goldstein v. State, 220 Md. 39 (1959). Bias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts, in addition to mere relationship or association, which would give rise to a showing of actual prejudice. See Bristow v. State, 242 Md. 283 (1966).”

On the other hand, we did hold in Tisdale v. State, 30 Md. App. 334 (1976), that the trial judge committed reversible error when he refused to strike for cause two jurors who admitted on voir dire that they would give more weight to the testimony of a police officer merely because he was a police officer. With refreshing candor appellant’s appellate counsel suggests that "[pjerhaps, the Plaintiffs attorney should have requested a more precise statement by the Trial Judge of Dr. Lanzi’s actual position in the case, except that it was known then only that he was a possible witness for the Defendants.” Conceivably, a deeper probing of the jurors’ relationship with Dr. Lanzi would have demonstrated a reason to strike them for cause. The magic question propounded in Tisdale was simply not asked the jurors here. Thus, this case does not come to us in the factual posture of Tisdale. Accordingly, we think the refusal of the trial judge to strike these jurors for cause does not mount up to reversible error. We cannot subscribe to the argument that "the relationship of the jurors to Dr. Lanzi was sufficient in itself in this case to show a predisposition to attach greater credence to his testimony regardless of the assurance to the Court of the contrary.”

We find no merit in the appellant’s seventh contention that "[t]he Trial Court erred in refusing to advise Dr. Lanzi that he might well be violating his duty to a patient of his partnership by testifying as an expert for the Defendants against the interest of the Plaintiffs deceased or to allow the Plaintiffs attorney to do so or question Dr. Lanzi about that before the jury.” The basis for this contention is an allegation that a partner of Dr. Lanzi treated Mrs. Stanley in 1974 for an ailment unrelated to her rash, which was the basis for this suit. Dr. Lanzi testified that he did not know that Mrs. Stanley had been a patient of his partner. In support of the contention appellant sets forth the following quotation from Green v. Otenasek, 267 Md. 9, 16 (1972):

"' "We are of the opinion that members of a profession, especially the medical profession, stand in a confidential or fiduciary capacity as to their patients. They owe their patients more than just medical care for which payment is exacted; there is a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed. That further includes a duty to refuse affirmative assistance to the patient’s antagonist in litigation

The above statement is a quotation from Hammonds v. Aetna Casualty & Surety Company, 243 F. Supp. 793, 799 (N.D. Ohio, 1965), which in turn is a quotation from Alexander v. Knight, 177 A.2d 142, 146 (Sup. Ct. Pa. 1962). The Court of Appeals set forth the quotation from these cases because the appellants in Green "relied upon [those] two cases for support of their position ... .” The Court of Appeals went on to say: "We agree that neither of these cases is apposite and what might be quoted in each case as favorable to appellants hardly rises to the level of dicta.”

In any event, we do not believe the above statement represents the law of Maryland. In Franklin v. State, 8 Md. App. 134, 141 (1969), cert. denied, 257 Md. 733, Chief Judge Murphy, speaking for this Court, stated:

"Communications made to a physician in his professional capacity are not privileged under the common law of Maryland, nor, with some exceptions in the case of psychiatrists, have they been made so by statute. See Robinson v. State, 249 Md. 200, 221; O’Brien v. State, 126 Md. 270, 284; Leszynski v. Russ, 29 F.R.D. 10 (D.C. Md.).”

Until the Court of Appeals holds otherwise, this represents the law of Maryland. Accordingly, we find no error in the trial judge’s refusal to advise Dr. Lanzi as requested by appellant’s counsel, or in his refusal to permit counsel to question Dr. Lanzi before the jury concerning the relationship.

Finally, the appellant contends that "[t]he Court erred in overruling the Plaintiffs Motion to limit the transcript to a statement of the case plus transcript of the proceedings on voir dire and out of the presence of the jury.” We agree with the appellant’s assertion that it is desirable to submit a case to the appellate court on an agreed statement of the case as provided in Maryland Rule 1026 e whenever possible. We are not prepared, however, to use this appeal as a vehicle to chastise either appellees’ counsel for opposing the appellant’s motion or the trial court for denying the motion.

Judgment affirmed; costs to be paid by appellant.