text:
    WILLIAM W. COTTMAN, III v. THE DEPARTMENT OF NATURAL RESOURCES FOR THE STATE OF MARYLAND et al.
    [No. 188,
    September Term, 1979.]

      Decided November 14, 1979.

    The cause was argued before Mooke, Lowe and Liss, JJ.

      Thomas Sisk, with whom was Elise Davis on the brief, for appellant.

      Michael J. Scibinico, II, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Edward F. Lawson, Assistant Attorney General, on the brief, for appellee Department of Natural Resources. Malcolm B. Kane for other appellee.
   Lowe, J.,

delivered the opinion of the Court.

. The Circuit Court for Anne Arundel County sustained, without leave to amend, a demurrer of the Department of Natural Resources for the State of Maryland (DNR) to an Amended Bill of Complaint and Petition for Ex Parte Injunction by William W. Cottman, III. Because the court held that

“[tjhe Amended Bill of Complaint fails to state a cause of action,”

we are concerned only with what legally constitutes a cause of action, and whether what was alleged in the amended bill of complaint factually constituted a cause of action. A demurrer, for the purpose of a demurrer only, has the effect of admitting the truth of the facts alleged in the bill of complaint. Hall v. Barlow Corp., 255 Md. 28, 42 (1969); Harding v. Ja Laur Corp., 20 Md. App. 209, 213 (1974). We will, therefore, use as our recitation of facts those taken from the amended bill, elliptically edited.

—the amended bill of complaint—

Appellant is a farmer resident in Montgomery County. For the past several years he has leased for farming public land from the Department of Natural Resources known as the Cloverdale Property, now a part of Seneca Creek State Park. The then current lease ran from November 1,1976 to October 31, 1977, and thereafter continued on a month to month basis until such time as it is terminated by either party by thirty day written notice. Appellant has not terminated the lease nor has he received written notice of termination from the Department of Natural Resources.

While appellant was still a tenant of the property, prior to the end of the initial term, DNR advertised in the Gaithersburg Gazette (beginning on July 7, 1977) that the property (and other like property) would be up for bid for a three year term. The advertisement provided that sealed bids were to be submitted and that no bids would be accepted after 2:00 p.m. on Friday, July 18, 1977.

The bid instructions provided in part that bidders should review lease samples which were in pertinent part identical to appellant’s lease. The lease sample provided that a lessee may not sublease or assign the leased property without prior permission of the DNR.

Although appellant believed he had a valid lease, he felt compelled to bid on the property in question in order to protect his interest, and submitted a sealed bid on Friday, July 18, 1977 prior to 2:00 p.m. at the designated place. Two other individuals bid on other properties by sealed bid prior to the 2:00 p.m. deadline. All bids were accepted by P. L. Wilbur, Assistant Superintendent of Seneca Park, an employee of the Department of Natural Resources.

After the 2:00 p.m. deadline had passed, appellee John Roswell submitted unsealed bids on the property in question, as well as other property open for lease, and such bids were accepted by Wilbur without any other bidders present. The absence of seal, and the submission past deadline, were contrary to the bidding instructions designated by the DNR. Roswell and the appellant were the only bidders on the subject property, and Roswell was awarded the property in question by DNR. Appellee Roswell did not have the financial ability, nor did he intend, at the time of submitting the bids, to lease the farmland and farm it himself, as required and anticipated by DNR’s indications in the bid instructions and sample lease. Roswell’s intention was to sublease the land to the “Warfield Bros.”, and he prevailed upon DNR to permit the property to be leased jointly by himself and the entity known as the “Warfield Bros.” At that time Roswell and “Warfield Bros.” fraudulently informed DNR that “Warfield Bros.” was only supplying financial aid to Appellee Roswell and only wanted “Warfield Bros.’ ” name on the lease as they (or it) were paying the rent for the first year. Such statement was fraudulent because both knew that they had entered into a contract whereby only “Warfield Bros.” would farm most of the land and manage and control all of it.

Even though the DNR was aware 1) that the bidding of Roswell was not in accordance with its own rules, 2) that Roswell never intended to farm the property himself, 3) that the representations made to DNR by Roswell and/or “Warfield Bros.” were false, and 4) that “Warfield Bros.” have acquired the property without bidding, by way of a fraudulent scheme, DNR has refused to void the present lease and either restore the land to appellant or open it for proper bidding.

Appellant then contended that the awarding of the property to Roswell by DNR was contrary to the terms of appellant’s existing lease, contrary to the advertised terms of the bidding, and awarding it to a third party by the means stated above was fraudulent, arbitrary and capricious.

Appellant attached to these recitations all pertinent documents upon which he relied including his lease, the bid advertisements, instructions for bidders, his lease as a sample lease, the lease between DNR and Roswell including “Warfield Bros.” and the agreement between Roswell and “Warfield Bros.”

—the opinion of the trial court—

In holding that appellant failed to state a cause of action, the trial judge presupposed that the complaint was founded upon the “irregularities” in the bidding procedure and the award of the lease,

“The Amended Bill of Complaint seeks to set aside the bidding of John Roswell, one of the Respondents, for a lease of public land, conducted by the Respondent, The Department of Natural Resources for the State of Maryland, based on alleged irregularities in the acceptance of the bids.
The irregularities alleged are briefly that there were only two bidders for the lease, the Complainant and Roswell. Roswell’s bid was submitted beyond the designated deadline and the bid was unsealed contrary to the Department of Natural Resources’ own rules. Further, that Roswell intended to sub-lease the land to ‘Warfield Bros.’ and fraudulently secured ‘Warfield Bros.’ name on the lease which in effect allowed ‘Warfield Bros.’ to acquire the property without bidding.”

He held that an administrative agency has wide discretion to accept or reject “irregular” bids, citing Board of Education v. Allender, 206 Md. 466, 475-476 (1955). Since that discretion will not be controlled by courts except for fraud, collusion or arbitrary discrimination, and because

“[n]o facts are alleged which would constitute, or imply, fraud,”

the judge concluded the bill of complaint did not make out a cause of action.

“At most, the facts as alleged show an opportunity for collusion, which the Court finds insufficient as a matter of law.”

Although the parties seem attracted to the question whether the irregularities overlooked were of sufficient moment to give undue advantage justifying judicial interference, the issue appears to us to be primarily whether the circumstances (cited by appellant) are sufficient allegations from which fraud, collusion or arbitrary discrimination could be inferred. As pointed out in Allender, supra at 475:

“[Wjhere there has not been any violation of a statute or ordinance, an administrative agency, in determining who is the lowest responsible bidder, has a wide discretion which will not be controlled by the courts except for fraud, collusion, or arbitrary discrimination.
It is an accepted rule in this State that a court of equity will restrain an administrative agency from ... acting fraudulently or so arbitrarily or unjustly as to constitute a violation of trust, but it will not review the exercise of the agency’s discretion where it acts within the scope of its authority and does not exercise its power fraudulently or corruptly.”

The preoccupation with the undue advantage argument obviously comes from Allender’s succeeding observation that

“[a] bidder’s variation from specifications will not exclude him from consideration for the award of the contract unless it is so substantial as to give him a special advantage over the other bidders.” Id. at 476.

Were appellant confined to variations from specifications as part of the sole case, it is unlikely that the variations were so substantial as to give a special advantage to Roswell. We are convinced that appellant would fail to make out such a case. We are not convinced, however, that appellant’s allegations failed to set out a case of fraud and/or collusion.

Summarized, his allegations indicate that he was and is entitled to possession of certain farmland, under a lease that has never been terminated in accordance with its terms. The violation of a valid lease is the legal right allegedly invaded. Debnam v. Simonson, 124 Md. 354, 358 (1914).

The allegations then set forth that DNR, in combination with Roswell and “Warfield Bros.” (which Cottman did not join), colluded to deprive appellant of his leased land by establishing a publicly advertised bidding procedure and policy to which they did not conform nor compel conformity among themselves, to the detriment of appellant. As pled, appellant set out sufficient facts from which an inference could be drawn that the collusion of appellees together with “Warfield Bros.”, defrauded him and deprived, or was about to deprive, him of his lawful right of possession under a valid lease. It is sufficient that these facts as stated will, if proven, support an inference of fraud; it is not necessary that they be accompanied by evidence by which they may be established. Willoughby v. Trevisonno, 202 Md. 442, 451 (1953); Upman v. Thomey, 145 Md. 347 (1924).

The bill of complaint described a combination which at common law is a criminal conspiracy, setting forth facts done to wrongfully deprive appellant of his contractual right of possession to his injury. Cf. Klingel’s Pharmacy v. Sharp and Dohme, 104 Md. 218, 231 (1906). The violation of this right by the unlawful combination is actionable at law as an action on the case, Kimball v. Harman and Burch, 34 Md. 407, 409-410 (1871), for damages, and if preventable may be restrained in equity by enjoining the performance of fraudulent and collusive acts allegedly participated in by a State agency. Allender, supra at 475.

The trial judge held that the facts alleged “show an opportunity for collusion, which the Court finds insufficient as a matter of law.” But that is not all that was shown. Appellant alleged facts establishing inferential indicia of, as well as the “opportunity for”, collusion, the beneficiaries of the fraud, and the injury to himself resulting therefrom. Those allegations support strong inference of fraudulent and collusive conduct without evidence necessary to that purpose. Willoughby, supra. The weight of the inference and its persuasive effect is for the factfinder at trial, but the existence of an inference will keep appellant in court.

—the Cottman lease—

The amended bill of complaint, filed October 26, 1978, alleged that Cottman’s lease with DNR for the original term ending October 31,1977, continued on a month to month basis and, not having been terminated in the manner prescribed by the lease, was still in being. Among his prayers for relief was that the court hold his lease to be valid. Assuming, as we must for purposes of the demurrer, the truth of appellant’s allegations that the lease has not been terminated pursuant to the lease requirements—

“This lease will continue in effect from month to month after the expiration of the above term. This lease may be terminated upon thirty (30) days written notice by either party.”—

the lease was indeed valid entitling him to possession until terminated as prescribed. Furthermore, assuming he was dispossessed by DNR as “Landlord” to make way for the new “tenants”, Roswell and “Warfield Bros.”, under their lease made January 10,1978, Cottman may be entitled to damages for the unlawful ejectment.

Although this point was glossed over in the appellate briefs, DNR argued below that Cottman’s lease was terminated as a matter of law by

“the request for bids on the property, and the Complainant’s participation in that process ....”

It contended that

“notice purposed to inform may be replaced by actual knowledge, especially when the knowledge has been acted upon without reliance upon the notification’s absence or its defects. Clark v. Wolman, 243 Md. 597, 600, 221 A.2d 687 (1966), Rolfe v. Clark, 269 Md. 14, 18, 304 A.2d 228 [sic] (1973).”

Appellant’s bill of complaint, however, alleged that his participation was compelled “in order to protect his interest”; but, even beyond that arguable allegation, we note that DNR’s cited authorities are inapposite to this case. Both Clark and Rolfe discuss statutorily prescribed notice, and in both cases, the complaining litigants had full knowledge of all facts. It is in those instances that the Court of Appeals iterated and reiterated that:

“The law, in its majesty, is not designed to require futile action or idle gestures. It is well settled that notification purposed to inform may be replaced by actual knowledge. 1 Merrill, Notice, 480. And this is especially so when the knowledge has been acted upon without reliance upon the notification’s absence or its defects. Ibid.; Cassidy v. Board of Appeals, 218 Md. 418; 2 Merrill, Notice, 384, 444.” Clark v. Wolman, 243 Md. at 600.

But this is not the case here. In this instance the parties contracted for the 30 day written notice to terminate. Courts cannot rewrite contracts of the parties to suit themselves. See Kasten Constr. v. Rod Enterprises, 268 Md. 318, 327-328 (1973). Even if we were so inclined, the advertisement to call for bids fell short of being even interpretively a notice to terminate the lease; it was at most an indication of a probability that the lease might be terminated sometime in the future.

It is also significant that in cases of lease termination the Legislature prescribed that leases of varying types were to be terminated in writing and further set out the amount of notice required. Md. Code, Real Prop. Art., § 8-402. In doing so, it indicated limited deviation from the writing requirement and that was only when a tenant gave parole notice to a landlord. Even then, the statute placed the burden on the landlord to “prove the notice from the tenant by competent testimony”. Real Prop. Art., § 8-402 (b) (5).

It is of passing interest (if not of immediate concern) that prior to amendment in 1974, the statute appeared to provide that in certain areas of Montgomery County leases could substitute notice time periods or waive them altogether, but that permissible exception was removed by Ch. 375 of the Acts of 1974. This would clearly indicate that the Legislature intended that Montgomery County comply with the written-notice-to-quit requirements of a lease in conformity with the rest of the State, thus reemphasizing the importance placed by the Legislature upon actual written notice as statutorily indicated.

—summary—

The appellant has therefore alleged a two-pronged cause of action: 1) factual circumstances susceptible to an inference of fraud and/or collusion to deprive him of a rightful possessory interest in leased land, and 2) an unlawful interference with a lease in being. While the amended bill of complaint is not a lesson in clarity, the allegations are sufficient in substance to withstand demurrer. Md. Rule 345 (c). If clarity is all that is lacking, amendments which are encouraged to be freely permitted, Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 29 (1974), should be required.

It should be noted that our holding here does not indicate that were we the factfinder we would be persuaded to draw the inference of fraud or collusion that is available. The likelihood of such a collusive combination to effect the deprivation alleged is one of the issues to be decided, but despite the questionable probabilities involved, the probability has been alleged by inference permissibly drawn from the factual recitations.

—motion to strike part of Appellee Roswell’s brief and appendix—

Appellee Roswell has included in his brief under the Statement of the Case and the Statement of Facts assertions of fact not before the court below at the demurrer stage to which this appeal is addressed. The appendix contains deposed testimony which had nothing to do with the issue before this Court — whether the pleadings have set forth a cause of action.

Appellee Roswell interprets Md. Rule 1031 c 4 as justification for such conduct.

“A clear concise statement of the facts material to a determination of the questions presented. If there is any dispute with regard to any of the facts asserted by the appellant, or a possibility of such a dispute, the appellánt shall so state. Reference shall be made to the pages of the record or the transcript of the testimony as contained in the record supporting his assertions.” Md. Rule 1031 c 4. which is being considered on appeal, not that which may have been introduced at trial, if a trial had ensued. Appellee Roswell’s interpretation is flimsy at best. To encourage him to remember that we will not go beyond the record and that he must so restrict his briefs and/or appendices we have, in our -discretion (Md. Rule 1082), assessed two-thirds of the costs to him. It is hardly fair that DNR pay for his misinterpretation of a clearly written and obviously purposed rule.

That rule (which applies to appellant’s not appellee’s brief) obviously speaks to disputed facts asserted in relation to that

Judgment reversed.

Costs to be paid two-thirds by appellee Roswell, one-third by Department of Natural Resources.

      . DNR contends that:
      “The real question here must be whether the bidding irregularity caused any difference in the competitive positions of the bidders.’’

      . Appellees assert that appellant's actual knowledge displayed by his bid participation obviated the need to comply with the continual obligation to 30 days’ notice in writing to effect termination of the lease. At best, this is a factual defense, but unconvincing at that. The contract cannot be rewritten to suit DNR unilaterally.

      . This lease was similar to that of Cottman being for an original term of 1 year and continuing on a month to month basis thereafter until terminated in writing by either party providing 30 days’ notice.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    MELBA INVESTORS ATLANTIC, INC. et al. v. MIMI SELIG HOMES, INC. et al.
    [No. 194,
    September Term, 1979.]

      Decided November 14, 1979.

      The cause was argued before Gilbert, C. J., and Couch and MacDaniel, JJ.

      H. Michael Hickson, with whom was John C. Nason on the brief, for appellants.

      M. Michael Cramer, with whom were Levitan, Ezrin, Cramer, West & Weinstein, Chartered on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

THE LAW

A judgment creditor may, pursuant to Md. Rule 628 a and d, seek the appointment by a circuit court of a receiver for the judgment debtor at anytime “after the expiration of sixty (60) days from the entry of any final judgment... where said judgment has not been paid or satisfied....” The appointment of the receiver by a law court is proper even though the appointment is in the nature of equitable relief. Wolcott v. Quick, 253 Md. 543, 253 A.2d 521 (1969); Housing Equity Corp. v. Joyce, 31 Md. App. 18, 354 A.2d 445 (1976).

Once the receiver is appointed, his or her role is “to protect the rights not only of the petitioning creditor but the rights of others.” 4 Poe, Pleading and Practice § 707 A at 365 (6th. ed. H. M. Sachs, Jr. 1975). No matter how “numerous the proceedings against the judgment debtor may be, the statutes generally provide that only one receiver shall be appointed, or, in other words, the same person must act as receiver in all the cases.” 3 Freeman, Law of Executions § 419 at 2240 (1900). If the rule were otherwise, the receivers might well find themselves at cross-purposes, generating more problems than they solve.

“From the time of his appointment, the receiver in supplemental proceedings represents both the judgment creditor and judgment debtor, and is also considered as a general trustee for all the creditors of the judgment debtor. Like other trustees, his acts in contravention of his trust will not be permitted to injure the beneficiaries.” 3 Freeman, supra at 2243. (Footnotes omitted.)

Freeman notes that “[t]he title [to the judgment debtor’s property] vested in the receiver ... is that only which the debtor had at the time of the appointment [of the receiver]. The chief object of the receivership may be to reach and subject to execution property fraudulently transferred.” Id. at 2245.

What we have said will serve as background for a better understanding of why we shall herein affirm the action of the Circuit Court for Worcester County in appointing a receiver on petition of Mimi Selig Homes, Inc. (Mimi), appellee, for the assets of the appellant, 85th Street Development Company (85th Street), currently possessed by Melba Investors Atlantic, Inc. (Melba), and vacating the hearing court’s order vesting title in Melba’s receiver.

THE FACTS

On May 15, 1973, Mimi, a real estate brokerage firm, entered into two written contracts in the form of listing agreements with 85th Street, owner of the Antigua condominium then under construction in Ocean City, Maryland. Mimi was granted the exclusive privilege to represent 85th Street for the sale of condominiums and was to receive in return, commissions of 4%. Mimi procured several purchasers and incurred incidental expenses. When the earned commissions remained unpaid for almost three years, Mimi filed a four-count declaration in the Circuit Court for Worcester County. Over the course of the next five months, Mimi made attempts to serve 85th Street with process. Finally, in September 1976, service was effected by serving the State Department of Assessments and Taxation of Maryland. That agency’s effort to notify 85th Street by certified mail was rebuffed by the addressee.

Default judgment was entered against 85th Street on May 25,1977. Meanwhile, on December 8,1976, three months after constructive service, by way of service on the State agency, 85th Street conveyed its interest in the Antigua to Melba. The deed reflecting the transfer was recorded in Worcester County five days later. After the default judgment was entered, 85th Street unsuccessfully sought to set it aside. The default judgment was extended on inquisition and resulted in a judgment absolute against 85th Street in the amount of $17,136. More than two months after the entry of the judgment absolute, it having remained unsatisfied, Mimi, pursuant to Md. Rule 628 d, filed a motion for special relief. Mimi requested the appointment of a receiver to dispose of real property described as the Antigua and belonging to 85th Street and to use the proceeds of the disposition to satisfy, to the extent necessary, Mimi’s judgment.

Melba was allowed to intervene when it asserted that its record ownership of the Antigua was a sufficient interest to warrant its participation in the proceedings. Following a hearing on Mimi’s motion for the appointment of a receiver, the hearing judge appointed a receiver and directed him to sell the Antigua property and to apply the proceeds to Mimi’s lien. Melba and 85th Street appealed.

The pleadings, on their face, showed that the judgment against 85th Street had remained unpaid for more than sixty (60) days. Md. Rule 628 a. The hearing judge properly appointed a receiver for the assets of 85th Street as he was empowered to do under Md. Rule 628 d. Had the hearing judge done so and cloaked “the receiver with authority to prosecute such course or courses of action as the receiver, within the ambit of the order appointing him ... deem[ed] appropriate,” we would have no hesitancy in affirming the order “across the board.” Housing Equity Corp., supra at 24. The judge, however, did not stop with the appointment of the receiver. Instead, he decided that lis pendens applied to the instant case and then proceeded to grant “[t]he relief requested.” The “relief requested” far exceeded the scope of Md. Rule 628 and, of perhaps more import, creates a receiver with a built-in conflict of interest. The “relief requested” was that:

“the Court ... appoint a receiver to sell the real property in question and described as:
All that fee simple tract or block of land situate, lying and being between 85th to 86th Streets from the Coastal Highway to the Atlantic Ocean, Ocean City, Worcester County, State of Maryland;
and distribute the proceeds of sale to the plaintiff [Mimi] to the extent necessary to satisfy the judgment rendered in favor of the plaintiff [Mimi] herein.”

The order is unique for several reasons. Were the receiver to follow the command of the order, he would, of necessity, have to treat Mimi as a preferred creditor, because the order specifically directs that Mimi be paid “to the extent necessary to satisfy” its judgment against 85th Street. We have already seen that a receiver serves all the creditors not just the interests of the petitioning creditor. Hence, if the receiver does what the order says, he may well find himself confronted with accusations by the other creditors of derogation of duty to protect their interests.

Additionally, even if the receiver could comply with the order of court, the order makes no provision for the disposition of the sale proceeds that are in excess, of a sum sufficient to satisfy Mimi, if indeed there be such proceeds.

Furthermore, the order usurped the receiver’s discretion by depriving him of the right to determine the best course of action to follow in order to protect the rights of all the creditors as well as the judgment debtor. 3 Freeman, supra.

We note that it is well settled that in the context of Supplementary Proceedings the hearing judge is not vested with the power to try title to land. See D. Joseph, E. Ottenheimer, Collection of Money Judgments in Maryland Through the Medium of Supplementary Proceedings at 123 (1955). Freeman, in his treatise on the Law of Executions declares, “In so far as the order seems to determine conflicting claims of title, or to require the delivery of property adversely held, or to authorize the receiver or other officer to take possession of it, it is beyond the jurisdiction of the court and void....” § 418 at 2233.

By invoking the doctrine of lis pendens in an effort to recapture the assets of 85th Street, the judge effectively resolved a title dispute regarding the Antigua as between Melba and Mimi, an entirely separate legal claim on which Melba is entitled to a full plenary hearing. “If the person cited to appear [intervene] denies that he is indebted to the judgment debtor, or asserts an adverse claim to property confessedly in his possession, but which is alleged to belong to such debtor, it is doubtful whether any judge or court can be authorized, in a summary proceeding, and without giving the person summoned [intervening] the benefit of a trial by jury, to determine the issues thus presented, and, if found against the claimant, compel him to pay the debt or deliver the property for the purpose of satisfying the judgment.” Freeman, supra at 2231.

We modify the order appointing a receiver by vacating that portion of it that vests the Antigua in the receiver. We remand to the circuit court for the passage of a supplemental order properly cloaking the receiver with the necessary powers to perform his duties for the benefit of all the creditors as well as the judgment debtor.

Order affirmed in part, vacated in part, and remanded for the passage of a supplemental order consistent herewith.

Costs to be divided equally between the appellants and the appellees.

      . From the record it is manifest that Melba is a “creature” of Banker’s Trust of New York, the construction money lender. In short, Melba appears to be Banker’s alter ego.

      . For purposes of this appeal, the relevant portions of the declaration are ex contractu.

      . Such service is permitted pursuant to Md. Rule 106 e.

      . The articles of Sale and Transfer are dated October 29, 1977, and were filed on November 16, 1977.

      . Such a procedure would be improper in view of the fact the record reflects more than one creditor, and the receiver is a receiver for all the creditors not just Mimi.

      . Freeman explains, “[T]here is no authority conferred by statute upon the court to make any order requiring the delivery of the possession of such property____[I]f the debtor refuses such delivery, the receiver, or any purchaser from him, must resort to some appropriate action to enforce his title and right of possession.” Id. See Md. Rule 628 e — Contempt.


author: Thompson, J.,

text:
    STAUFFER CONSTRUCTION CO., INC. et al. v. TATE ENGINEERING, INC. et al.
    [No. 257,
    September Term, 1979.]

      Decided November 14, 1979.

      The cause was argued before Thompson, Moylan and Moore, JJ.
    Submitted on brief by Francis J. Pelland and Sadur & Pelland, Chartered for appellants.

      Joseph V. Truhe, Jr., with whom were James L. Thompson and Miller, Miller & Canhy, Chartered on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

In this appeal we are asked to decide the timeliness of a notice of non-payment, by a subcontractor’s subcontractor under the “Little Miller Act”, Md. Code, Real Property Article, § 9-113. We think the notice was timely.

The facts surrounding the dispute are as follows: Stauffer Construction Co., Inc. (Stauffer) one of the appellants, was the prime contractor for certain alterations and additions to Bethesda-Chevy Chase High School, pursuant to a contract with the Montgomery County Board of Education. Stauffer, as principal, and Fidelity and Deposit Company of Maryland (Surety), the second appellant, executed and delivered a labor and material payment bond as required by Md. Code, Real Property Article, § 9-113. Manco, Inc. (Manco), the subcontractor, agreed to perform the mechanical portion of Stauffer’s contract obligation. In April of 1977, Manco accepted a proposal by appellee, Tate Engineering, Inc. (Tate), to furnish and install certain oil burner equipment and perform related work on the project for a total price of $17,745.00. After substantially completing its contract obligations, Tate billed Manco for the full contract sum on November 7, 1977, but it still had a small amount of work to complete its contract. Manco never paid Tate for work on the contract, so by letter dated March 2,1978, Tate sent Stauffer a copy of the November 7 invoice and notified Stauffer that it had not been paid. Manco terminated work in June, 1978, four months after the March 2nd notice letter from Tate to Stauffer complaining of non-payment by Manco, and before the project was complete. On June 1, 1978, Tate filed suit in Montgomery County Circuit Court against Stauffer and Surety on the payment bond. An accompanying motion for summary judgment was denied, upon consideration of an opposing affidavit which pointed out that Tate’s billing of Noyember 7, 1977 was more than ninety days before the March 2,1978 notice letter and therefore was untimely under Section 9-113. After depositions were taken Tate filed a second motion for summary judgment, arguing that the notice of March 2, 1978 was timely, either because it was within ninety days of certain work performed on January 13, 1978, or because Tate delivered certain materials to the job at the request of Stauffer in early October 1978. The delivery in October 1978 consisted of two wells to accommodate aquestats. The trial court concluded that there was a genuine factual dispute as to whether or not the January 13, 1978 work was completion work which would have made the March 2,1978 notice timely, or was corrective work which would not bring the March 2 notice within the required ninety days. The court, however, granted summary judgment for Tate on the grounds that delivery in October of 1978, made at the request of Stauffer, rendered the March 2, 1978 notice timely.

The notice provision of the Little Miller Act, Md. Code, Real Property Article § 9-113 (c) provides:

“(c) Suits on payment bonds Right to institute. — Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under this section and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final judgment and execution for the sum or sums justly due him; provided, however, that any person having direct contractual relationship with a subcontractor of the contractor, or with any sub-subcontractor of the contractor but no contractual relationship express or implied with the contractor furnishing said payment bond, shall have a right of action upon the payment bond upon giving written notice to the contractor within ninety (90) days from the date on which such person did, or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business, or his residence.”

To support their argument that the notice was not timely appellants rely on National Union Indemnity Co. v. R. O. Davis, Inc., 393 F.2d 897 (5th Cir. 1968). There, the notice letter from the supplier to the prime contractor was dated March 18, 1960. The only delivery involved in the claim had an invoice dated July 25. No year was indicated on the invoice but the court stated it had to be either 1959 or 1960. The court ruled that if the delivery was in July of 1959, the March 1960 letter was untimely because it was more than ninety days after the shipment, and if the delivery date was July 1960, the March 1960 letter was premature and, therefore, was not the proper notice under the Miller Act. The case is inapposite because it was concerned with a single delivery and not a contract which was performed over a period of time. See also, United States ex rel. Kinlau Sheet Metal Works, Inc. v. Great American Insurance Company, 537 F.2d 222 (5th Cir. 1976) which applied the same rules where three separate jobs were involved.

In the case at bar, the trial court relied on two cases to support its holding that the notice was timely. In United States v. Smith Road Construction Co., Inc., 227 F.Supp. 315 (N.D. Okla. 1964) the notice was given within ninety days after certain earlier shipments by the supplier, but before some of the shipments were made. The court found the materials were furnished under a single contract and the notice was timely, reasoning that the prime contractor had been given sufficient warning and opportunity to protect itself from its subcontractor’s delinquency. The trial court also relied on Fireman's Fund Insurance Co. v. Fischer & Porter Co., 143 Ga. App. 533, 239 S.E.2d 174 (1977), which interpreted Georgia’s “Little Miller Act” also patterned after the Federal Act. In Fireman's Fund the facts are almost identical to the facts in the present case. There, the last shipment was made on February 16, 1973, but the claimant had to fulfill certain requirements of its contract with the subcontractor including furnishing labor to seal, test and calibrate the instruments after they had been installed. The court found that the last of this labor was performed on November 1, 1973. The notice letter was written on May 29, 1973. The court found that the notice letter was timely, saying the general contractor was alerted by the notice that its subcontractor was delinquent and that it was thereby given the opportunity to withhold payment sufficient to insure satisfaction of the claimant .without double payment. Once again there was a single contract.

We see no tension between any of the four cases cited above. The rule of these cases is clear that if there is a single contract, it is immaterial if a small part of the work is performed or a small part of the materials is furnished after the notice;' the rule, however, is to the contrary if each delivery is a separate contract.

The obvious purpose of the payment bond is to protect subcontractors and materialmen on State or other public projects where they have no lien on the work done. Mayor of Baltimore v. Fidelity and Deposit Co., 282 Md. 431, 438, 386 A.2d 749 (1978); State Highway Administration v. Transamerica Insurance Company, 278 Md. 690, 697, 367 A.2d 509 (1976). The Act’s provisions are to be liberally construed to protect persons whose labor and materials go into governme|it projects. Mayor of Baltimore v. Fidelity and Deposit Co., supra at 445. The obvious purpose of the ninety day provision is to protect the prime contractor so that after the ninety days he can safely pay a subcontractor, provided he has received no written notice from latter’s materialmen or subcontractors. United States ex rel. J. A. Edwards & Co., v. Thompson Construction Corp., 273 F.2d 873, 875 (2d Cir. 1959), cert. denied, 362 U.S. 951 (1960). Appellants argue that the purpose of the notice provision is undermined by the trial court’s decision and was contrary to the clear language of the statute which gives the right of materialmen to sue “within ninety days from the date on which such persons supplied the last of the material for which such claim is made.” Appellants contend that the words “for which such claim is made” mean that the claimant can only claim for labor and materials supplied before the notice. As we see it, the words “for which such claim is made” cover all labor and materials supplied in an indivisible contract. Here, the contract was indivisible and the work was substantially, but not totally, completed before notice was given. We hold the date from which the ninety days begins to run is the date the last work necessary to complete the contract was performed or the date the last materials, necessary to complete the contract, were furnished. Mt. Airy Plumbing & Heating Inc. v. Grey Dawn Development Co., 237 Md. 38, 43, 205 A.2d 299 (1964) (interpreting timeliness of notice for mechanics lien). The cases are unanimous in holding that the relevant date from which the ninety day period will run is the last date upon which any work or materials necessary to complete the contract is performed or furnished. See, e.g. United States ex rel. Noland Company v. Andrews, 406 F.2d 790 (4th Cir. 1969) and Annot., Time of Notice to Public Works Contractor on United States Project Under Miller Act, 78 A.L.R.2d 412 (1961).

Considering the purpose of the “Little Miller Act” and applying the required liberal construction to its provisions we conclude that the notice was timely in the instant case. Any notice received by Stauffer after October 1978 would have been identical to that given to the contractor. Under these circumstances, neither Stauffer, nor its Surety, can be heard to complain that notice of non-payment was received too soon for their protection. Tate gave the required notice well in advance of that deadline, and thus it is entitled to recover on the bond. Its motion for summary judgment was properly granted.

Judgment affirmed.

Appellants to pay the costs.

      . This section was patterned after the Miller Act, 40 U.S.C.A. § 270b (a) (1969).


author: MacD aniel, J.,

text:
    ARTHUR E. BUFFIN, JR., t/u/o State Farm Mutual Automobile Insurance Company v. FRANK A. HERNANDEZ, III
    [No. 179,
    September Term, 1979.]

      Decided December 5, 1979.

      The cause was argued before Moylan, Lowe and MacD aniel, JJ.

      B. Craig Wald, with whom was William C. Littleton on the brief, for appellant.

      Judith C. Finn, with whom was Roger A. Perkins on the brief, for appellee.
   MacD aniel, J.,

delivered the opinion of the Court.

This case involves the issue of whether a trial court has jurisdiction to modify its judgment after appellate review.

Frank A. Hernandez, III, the appellee, brought an action in the Circuit Court for Anne Arundel County against Arthur E. Buffin, Jr., the appellant, for damages resulting from an automobile accident. The appellant filed a counterclaim for damages from the same accident. On the morning of the trial, the appellee filed a Motion to Add Party Plaintiff or, in the Alternative, to Exclude Certain Proof. The motion sought to add the State Farm Mutual Automobile Insurance Company as a party to the extent that it had a subrogated interest in the damages claimed by Buffin. The trial judge declined to rule on the motion.

The jury returned verdicts in favor of Buffin and assessed his damages at $6,000. The appellee’s Motion for a New Trial was denied, and judgment was entered on August 1,1977. On August 29, 1977, the appellee filed both a Petition to Modify Judgment and a line to enter appeal. The motion said:

“5. Unless the judgment is revised to show State Farm as a judgment creditor to the extent of its subrogated interest, the Counter-Defendant will be severely prejudiced in that he may be required to make payment of the property damage claim to both the Counter-Plaintiff, Arthur E. Buffin, Jr., and also to State Farm to the extent of its subrogated interest.”

The trial judge did not act upon the motion to revise the judgment, and the appeal proceeded.

On July 19, 1978, this Court issued a per curiam opinion affirming the decision of the lower court. In that opinion we declined to address the issue of whether State Farm Mutual Automobile Insurance Company should have been included as a party. We said that, under Maryland Rule 1085, the issue had not been preserved for appellate review. A Motion for Reconsideration was denied, and the mandate issued on September 27, 1978.

Thereafter, the appellee sought a hearing below on his prior Petition to Modify Judgment (filed on August 29, 1977). The trial judge heard arguments on January 17,1979, and he ruled that the trial court did have jurisdiction on the matter. In his Order, dated February 16, 1979, the trial judge modified his original judgment by entering a judgment in the amount of $1,182 against the appellee and in favor of Buffin to the use of State Farm Mutual Automobile Insurance Company, and a judgment in favor of Buffin individually for $4818.

In his oral opinion, the trial judge stated that he originally thought that the interests of the insurance company could be handled administratively but that it was not done. He intended, therefore, to correct the error then by modifying judgment. He said, with respect to jurisdiction of the trial court:

“I do feel ... that the time of the filing is immaterial because I think it is well settled that when an appeal is taken the lower court is divested of jurisdiction and has, and anything it would act on at that time would be void because, as you know, jurisdiction is basic.”

He added:

“ ... I think inherent powers of the court has a right to correct a mistake if there were one made.... And it also, as ably argued by you, that a court may revise its sentence even after thirty days for fraud or mistake and that mistake is limited to the court’s mistake. So for those reasons the Court feels that it does have jurisdiction even under the inherent powers of the Court plus Rule 625.”

Buffin now appeals the granting of the petition to modify judgment. He contends that the trial court did not, at the time of its modification of judgment, have jurisdiction to consider the petition. In support, he cites Tiller v. Elfenbein, 205 Md. 14 (1954). We agree with his contention.

Maryland Rule 625 a provides:

“Rule 625. Revisory Power of Court Over Judgment... Gen’l.
a. Generally.
For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.”

In Tiller v. Elfenbein, supra, a case similar to, and yet different from, our own, the appellee filed a motion for reargument within 30 days of the entry of judgment. He also filed an appeal but dismissed the appeal before the motion for reargument was scheduled to be heard. The appellant then contended that, because an appeal had been filed earlier, the motion for reargument could not be heard. In answer to the appellant, the Court of Appeals said:

“It is well established that the filing of a motion to strike, or for a rehearing, does not stay the time for appeal. Maryland Lumber Co. v. Legum, 197 Md. 483.... Ordinarily, the trial court’s jurisdiction is ended upon the filing of an appeal. Heath v. State, 198 Md. 455, 460; Dietrich v. Anderson, 185 Md. 103, 111. But it would appear from the cases touching the point that an appellant is not put to an immediate election as between the motion and the appeal.” (Emphasis added.) 205 Md. at 19.

The Court then analyzed the previous cases bearing upon the problem, and it concluded:

“We think that the principle announced in the Avirett and United Railways cases, that the mere filing of an appeal from the judgment does not strip the trial court of its revisory power in a proper case, is not shaken by the later cases. Although some of these cases were in equity, the problem is the same as in cases at law. But the later cases do establish the rule that if the appeal is still pending when the motion to strike the judgment comes on for hearing, the trial court lacks jurisdiction to entertain the motion, regardless of whether the motion is of the type that may be renewed or not.
We think it is a sound policy that allows the trial court, despite an appeal, to retain its control over the judgment for thirty days after its entry, and for such reasonable time thereafter as may serve the court’s convenience in disposing of a motion seasonably made, as contemplated by the Rules. On the other hand the exercise of the court’s power to act on the motion should not be stayed by the entry of an appeal, so as to work a postponement of the hearing of the motion, any more than the filing of the motion should postpone the time for, or hearing of, the appeal, for this would be capable of abuse, as suggested. We hold that, unless the appeal is dismissed when the motion comes on for hearing, the appellant must elect between his motion and his appeal. If the appeal is dismissed before the hearing, as in the instant case, the motion stands for hearing as though no appeal has been entered.” (Emphasis added.) 205 Md. at 21.

Later cases have followed the reasoning of the Tiller Court. See Visnich v. Wash. Sub. San. Comm., 226 Md. 589, 590-91 (1961).

From the Tiller case, supra, it would appear that the law applicable to our own case is as follows. (1) Both a motion to modify judgment under Maryland Rule 625 a, and an appeal may be filed, within 30 days. A motion to modify judgment filed after 30 days, when the judgment has become enrolled, must allege “fraud, mistake or irregularity”; otherwise the trial court has no jurisdiction to hear the motion. (2) If a motion to modify judgment is filed within the 30-day period, it may be heard by the trial court for a “reasonable” time thereafter. This delay, which may extend beyond the date of enrollment of the judgment, is allowed, apparently, for the orderly processes of the court. It is, for example, frequently impossible to schedule an immediate hearing on a motion. (3) Where both a motion to modify judgment and an appeal are filed within 30 days, by the time set for the hearing on the motion, the proponent must elect between pursuing the motion and pursuing the appeal.

Applying the above principles to the present case, we hold that on January 17, 1979, the trial court did not have jurisdiction to hear the appellee’s Petition to Modify Judgment.

We note, first, that the appellee’s motion was properly filed within 30 days of judgment. However, the trial court, to retain jurisdiction, had to act upon the motion within a reasonable time after it was filed. This was not done. The motion was not scheduled for a hearing until about 16 months later. This delay, without question, was longer than that necessitated by the orderly processes of court.

Apparently the trial judge felt that he should not schedule a hearing until after the appeal had been disposed of, and the appellee seems to have acquiesced. However, in Maryland a trial court no longer has jurisdiction to modify a judgment after it has been affirmed on appeal. See Korotki v. Springer, 218 Md. 191 (1958). In that case, after the decree had been reversed and remanded “for further proceedings not inconsistent with this opinion,” the appellant attempted to have the decree stricken on the grounds that it had been obtained by “fraud.” Without addressing the issue of what constitutes evidence of fraud, the Court of Appeals said:

“The cases on the subject are far from clear, but we think they support the proposition that after a judgment or decree is affirmed on appeal, the lower court may not entertain a motion to reopen, and the same rule applies to a reversal and remand for further proceedings, as to all matters decided by the appellate court. See Pinkney v. Jay & Mason, 12 Gill & J. 69; McClellan v. Crook, 7 Gill 333; Young v. Frost, 1 Md. 377; Maryland Steel Co. v. Marney, 91 Md. 360; Winter’s Executors v. Gittings, 102 Md. 464; United Rys. Co. v. Corbin, 109 Md. 52; Rent-A-Car Co. v. Fire Ins. Co., 166 Md. 447. We shall not review the cases in detail or attempt to harmonize them. See also notes, 139 A.L.R. 340, and 146 A.L.R. 1230.” 218 Md. at 194.

In partial explanation of the above result, the Court added:

“Rule 870 provides that upon affirmance or reversal of the judgment from which an appeal is taken the ‘decision of this Court shall be final and conclusive.’ See also sec. 15, Art. IV of the Maryland Constitution. Remand is dealt with in Rule 871, and there it is provided that ‘the order entered by this Court in remanding said case, and the opinion of this Court on which said order is passed, shall be conclusive as to the points finally decided thereby. In such an order remanding a case, this Court will express the purpose for so remanding and in its opinion filed with said order will determine all questions which may have been properly presented.’ ” 218 Md. at 194.

In Rent-A-Car Co. v. Fire Ins. Co., 166 Md. 447 (1934), after the judgment had been affirmed on appeal, the appellant attempted to have the original judgment stricken on the grounds that it had been obtained by “fraud.” The Court of Appeals said:

“A sound public policy requires that there be an end of litigation between the same parties growing out of the same facts. In cases where there has been an adversary trial between the parties, a judgment rendered by the trial court, and that judgment affirmed by this court, without a remand for further proceedings, it is an end of that litigation and the trial court has no jurisdiction to strike out the judgment. Maryland Steel Co. v. Marney, 91 Md. 360, 46 A. 1077; United Rwys. & Elec. Co. v. Corbin, 109 Md. 52, 71 A. 131, 134. In the last-mentioned case, Chief Judge Boyd, speaking for the court, said: ‘But we are of the opinion that an affirmance of a judgment at law by this court does preclude the court below from vacating the original judgment appealed from, unless it be a case which can be remanded after affirmance, and has actually been remanded for some further proceedings, if there be such a case....’ ” 166 Md. at 449.

That Court also said, in explanation of the above rule:

“ ... it would seem to be clear that if the lower court had the power to vacate its own judgment, it could not disturb that of the appellate court. It would therefore be a useless proceeding to permit it to be done, and in the absence of some statute, we must hold that it cannot be done.” 166 Md. at 450.

The above rule that a judgment cannot be modified by a trial court after a conclusive decision has been made by an appellate court appears to apply even where “fraud, mistake or irregularity” is alleged as the reason for modification of judgment. Clearly, then, under no circumstances can there be modification of judgment by a trial court after the judgment has been affirmed on appeal where the motion for modification of judgment was required to be filed within 30 days of the original judgment. As the above cases also make clear, where a decision has been affirmed on appeal, the trial court cannot modify its judgment even if the specific issue which is the basis for the modification was not addressed on appeal.

Although the above cases involved appeals to the Court of Appeals rather than the Court of Special Appeals, we hold that a trial court’s jurisdiction, under Maryland Rule 625 a, to modify its judgment also ends where the Court of Special Appeals has ruled upon the case. A trial court simply does not have jurisdiction to modify, in effect, the ruling of a higher court.

Therefore, we conclude that on January 17, 1979, the trial judge did not have jurisdiction to hear the appellee’s petition to modify judgment. Because of our holding on this issue, we find it unnecessary to review the appellant’s second contention.

Judgment as amended by the Circuit Court for Anne Arundel County vacated.

Original judgment reinstated.

Costs to be paid by appellee.

      . See § 6-408 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland for the codification of this rule.

      . Nowhere in the motion did the appellee allege “fraud, mistake, or irregularity.” To the extent that the trial judge may have treated the appellee’s motion as one alleging “fraud, mistake or irregularity,” he was in error.

      . We note that Maryland Rule 1070, which applies to the Court of Special Appeals and parallels Maryland Rule 870, does not contain the language, “The decision of this Court shall be final and conclusive.” The reason for the omission obviously is that the Court of Appeals may review decisions of the Court of Special Appeals.


text:
    SHERIFF OF BALTIMORE CITY v. THOMAS ABSHIRE
    [No. 180,
    September Term, 1979.]

      Decided December 5, 1979.

    The cause was argued before Gilbert, C. J., and Melvin and Mason, JJ.

      Robert A. Zarnoch, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

      Herbert R. Weiner and Jana R. Barnett, with whom were Steinberg, Schlachman, Potler, Belsky & Weiner, PA. on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The Sheriff of Baltimore City is of the mind that Thomas Abshire should not be allowed to continue employment as a deputy sheriff, so the Sheriff preferred charges against Abshire before the Secretary of Personnel of the State of Maryland. Specifically, Abshire was alleged by the Sheriff to have violated State Employee Personnel Rules .47 B and D. COMAR 06.01.01.47 B, D. Those two sections of the Rule provide:

“B. That the employee has been wantonly careless or negligent in the performance of his duty or has used unwarrantable or excessive force in his treatment of public charges, fellow employees, or other persons.
D. That the employee has violated any lawful official regulation or order or failed to obey any lawful and reasonable directive given by his superior officer when such violation or failure to obey amounts to insubordination, a serious breach of discipline which may reasonably be expected to result in lower morale in the organization or to result in loss or injury to the State or public.”

A hearing was held before the Secretary’s designated representative on July 10, 1978. As a result of that hearing, the Secretary determined “that the charges against Abshire have not been sustained by a preponderance of the evidence.” He ordered Abshire “returned to duty with full back pay and benefits...

In so holding, the Secretary was critical of the Sheriff’s suspending Abshire on May 9, 1978, and simultaneously ordering him to remain on duty. A further criticism was directed at an intraoffice procedure whereby when an employee requested a day off, no response was deemed to be approval. Needless to say, if the supervisor, for whatever reason, did not receive the request, the employee would, nevertheless, believe the supervisor’s silence was approval. The opportunity of the employee’s thus being misled to his peril is obvious.

Frustrated by the Secretary’s ruling, a ruling it is to be noted that was brought about by the Sheriff’s filing of charges with the Secretary, the Sheriff appealed to the Baltimore City Court. Subsequently, the Sheriff’s tactics were substantially altered. While the original petition, Md. Rule B 2 e, attacked the Secretary’s jurisdiction under the Maryland Constitution, Article IV, Section 44 and Md. Courts and Judicial Proceedings Code Ann. § 2-309 (d) an amended petition raised the additional ground that the Secretary lacked jurisdiction over the matter because of the Law Enforcement Officers’ Bill of Rights, (LEOBR). Md. Ann. Code art. 27, §§ 727-734 (D).

The Sheriff was again rebuffed when the Baltimore City Court (Sodaro, J.) granted Abshire’s motion for summary judgment. The court held that “deputy sheriffs in Baltimore City are included in the State Merit System and that disciplinary actions are not controlled by the provisions of the Law Enforcement Officers’ Bill of Rights.”

The Sheriff continues in his unrelenting effort to fire Abshire by bringing an appeal to this Court where he challenges the Secretary’s jurisdiction over deputy sheriffs in Baltimore City and the award of back pay to Abshire. Interlaced with the latter contention is the much berated but still very viable doctrine of sovereign immunity.

The funds to pay Abshire were available had he continued employment. Inasmuch as he was suspended, not fired, those same funds are still included within the Sheriff’s budget. Consequently, unlike Frosburg v. State Department of Personnel, 37 Md. App. 18, 375 A.2d 582 (1977), the Sheriff had the wherewithal to pay the accrued salary. The remaining contentions that the appellant raises to sustain his position that the back pay award was contrary to law were not decided by the trial judge, and we do not reach them. Md. Rule 1085.

It is ironic that the Sheriff, who initially invoked the jurisdiction of the Secretary of Personnel now asserts that the Secretary did not possess the authority to hear the matter irrespective of Md. Ann. Code art. 64A, § 9E. That section, enacted as Laws 1971, ch. 519 declares:

“Notwithstanding any provisions in § 3 of this article or elsewhere, all employees of the Sheriff’s office in Baltimore City, excepting the Sheriff, are part of the classified service. Any employee of the Sheriffs office who has been employed for at least six months on July 1,1971, shall be a member of the classified service of the State as provided in this article, without further examination or qualification.”

If section 9E is controlling, then the City court’s action in affirming the decision of the Secretary is absolutely correct.

The obvious question then is what is the effect of the LEOBR on the instant case, and most particularly, on the Merit System Law, Md. Ann. Code art. 64A? The answer to the inquiry must be found by an analysis of the LEOBR considered in juxtaposition with the Merit System Law.

When originally enacted as Laws 1974, ch. 722, the LEOBR added eight new sections to Md. Ann. Code art. 27, namely, sections 727 through 734. Section 727 (b) defined a “law enforcement officer” as:

“any person who, in his official capacity, is authorized by law to make arrests and who is a member of one of the following law enforcement agencies:
(1) The Maryland State Police; or
(2) The Baltimore City police department; or
(3) The police department, bureau, or force of any county; or
(4) The police department, bureau, or force of any incorporated city or town; or
(5) The office of the Sheriff of any county; or
(6) The police department, bureau, or force of any bicounty agency or the University of Maryland.” (Emphasis supplied.)

Significantly absent, by specific reference thereto, from the list of law enforcement agencies included within the ambit is the office of the Sheriff of Baltimore City. The Sheriff, however, argues that Md. Ann. Code art. 1, § 14, places his office under the LEOBR. Art. 1, § 14 provides: “The word county shall be construed to include the City of Baltimore, unless such construction would be unreasonable.” The appellee asserts that construing the word county, as used in the LEOBR, to include Baltimore City would be unreasonable. Appellee points to the specific reference to the Baltimore City Police Department in Md. Ann. Code art. 27, § 727(b) (2) as a clear indication that the Legislature did not mean for the office of Sheriff of Baltimore City to be within the protection of the LEOBR. Appellee says that otherwise there was no need, rhyme or reason for the General Assembly to have made the specific reference to the Baltimore City Police inasmuch as they would have been included within section 727 (b) (3) or (4), unless the law makers intended to differentiate between Baltimore City and the counties. Thus, appellee contends, for the courts to interpret “county” to mean “City of Baltimore” would, in the circumstances, be unreasonable.

To bolster his argument, appellee refers to an unpublished opinion of the Attorney General dated May 24, 1978, addressed to a member of the House of Delegates. In that opinion the Attorney General observed that “[njowhere in this section [Md. Ann. Code art. 27, § 727] is the Office of the Sheriff of Baltimore City mentioned.” The opinion goes on to state:

“At the time the Law Enforcement Officers’ Bill of Rights was enacted in 1974 and amended in 1975, the Office of Sheriff of Baltimore City had very little general law enforcement function.
The deputies were primarily process servers and, unlike any other sheriffs office in this State, were expressly included within the comprehensive State Merit System Law.”

The opinion notes that Md. Ann. Code art. 64A, § 9E places all Baltimore City deputy sheriffs in the “classified system.” The then Attorney General changed his point of view as to whether the office of Sheriff of Baltimore City is embraced within the LEOBR. The State here endeavors to erode the effect of the unpublished opinion by characterizing it as a “one-signature opinion,” “drafted when the status of deputy sheriffs in Baltimore City were in a state of extreme flux,” of little influence inasmuch as it was unpublished, “the reasoning ... will not withstand scrutiny and ... it conflicts with the conclusion of an earlier published opinion. 61 Opinions of the Attorney General 668, 670 (1976).”

We observe no conflict between 61 Opinions of the Attorney General 668 and the unpublished opinion of 1978. The published opinion deals solely with whether the Police Training Commission was required to provide the law enforcement training mandated by Md. Ann. Code art. 41, § 70A to deputy sheriffs of Baltimore City. The answer supplied in the opinion was that it depends upon the duties assigned to the deputy. Moreover, section 70A (a) (4) and (5) remove any doubt as to its application to deputies in Baltimore City provided the duty of the deputy is to enforce “the general criminal laws of this State.” Article 41, § 70A (a) (4) defines a “law enforcement unit” to mean “any ... sheriffs department ... of the State, county or municipality----” Article 41, § 70A (a) (5) declares that a “Municipality” is “any incorporated city of any class____”

We believe the Sheriffs reliance on 61 Opinion of the Attorney General668 to be misplaced. If the opinion is of any value as support for either party in the instant case, it is the appellee who benefits. A clear inference may be drawn from the manner in which subsections (4) and (5) of section 70A (a) are written that the Legislature was fully cognizant of the provision it had enacted with respect to the LEOBR, and desired to make known that with respect to “law enforcement training” it wanted to include the deputies of the office of the Sheriff of Baltimore City insofar as those deputies enforce “the general criminal laws.”

The deputy sheriffs of Baltimore City are in the unique position of being the only deputies in the State who are under the State Merit System Law. Md. Ann. Code art. 64A, § 9E. When that factor is considered and weighed along with the wording of the LEOBR referring to the Baltimore City Police Department and making reference to the office of Sheriff, we are led to the conclusion that to read Md. Ann. Code art. 27, § 727 (b) (5) to include the Sheriff of Baltimore City would be unreasonable. Moreover, such a construction would indicate that the specific reference in section 727 (b) (2) is a redundancy.

We note that during the 1976 session of the Legislature, House Bill No. 1526 was introduced “[f]or the purpose of including within the definition of law-enforcement officer, certain sheriffs’ offices in the Law-Enforcement Officers’ Bill of Rights.” The amendment would have changed section 727 (b) (5) to read: “The office of the Sheriff of BALTIMORE CITY OR any county....”

A similar bill, House Bill 738, was filed during the 1979 session. It was more specific as to its purpose and flatly said that it was to include “the sheriff’s office of Baltimore City in the definition of law enforcement officer for purposes of the ... [LEOBR].” That amendment sought to add the words “or Baltimore City” immediately after the noun “county” as it appears in section 727 (b) (5). Neither amendment was enacted.

We said in Prince George’s County v. State of Maryland Commission on Human Relations, 40 Md. App. 473, 489, 392 A.2d 105, 115 (1978), vacated on other grounds, 285 Md. 205, 401 A.2d 661 (1979): "Although the Court of Appeals has 'never held that the amendment-rejection theory is a completely determinative method of ascertaining legislative intent, . . . [it] has indicated that such action strengthens the conclusion that the Legislature did not intend to achieve the results the amendment would have achieved if adopted.’ ” Demory Brothers v. Board of Public Works, 273 Md. 320, 326, 329 A.2d 674, aff'g 20 Md. App. 467, 473, 316 A.2d 529 (1974). See also Bosley v. Dorsey, 191 Md. 229, 240, 60 A.2d 691, 696 (1948). We opined in Demory, 20 Md. App. at 473, that "[i]t has been held that a legislative body’s rejection of a statutory amendment is significant because it throws light upon the legislative intent.” (Citations omitted.)

One may infer from the rejection of the House Bill No. 1526 in 1976 and House Bill No. 738 in 1979 an intent on the part of the Legislature not to include the office of Sheriff of Baltimore City within the ambit of the LEOBR. When that inference is considered together with what we think to be the carefully chosen language of Laws 1974, ch. 722, Laws 1975, ch. 809, Laws 1976, ch. 482, ch. 484, ch. 504, Laws 1977, ch. 366, we are led to the conclusion that the General Assembly, having placed the deputy sheriffs of Baltimore City within the State Merit Law, Article 64A, § 9E, purposely omitted that office from the protection afforded by LEOBR.

To hold, as the Sheriff urges us, that the office of Sheriff of Baltimore City is within the sphere of the LEOBR would be an unreasonable interpretation, Md. Ann. Code art. 1, § 14, and a judicial trespass upon a legislative prerogative.

Judge Sodaro, in granting the appellee’s motion for summary judgment, properly construed the law.

Judgment affirmed.

Costs to be paid by appellant.

      . The origin of the ancient office of Sheriff seems to have been lost in antiquity, but its prototype, the vice-comes (Deputy of the earl), is found in Roman law. Alfred the Great (849=901) divided Britain into “shires,” and at the head of each he placed an earl with a deputy known as a “reeve,” a Saxon term meaning “keeper.” Not unexpectedly, the “shire reeve” became a “sheriff.” Note, U. of Balto. L. Rev. 282 (1973); 1 W. Blackstone, Commentaries on the Laws of England. * 339.

      . How one is suspended and yet remains on duty is not explained in this record.

      . That section of the Constitution provides:
      “There shall be elected in each county and in Baltimore City in the year 1946 and in every fourth year thereafter, one person, resident in said county, or City, above the age of twenty-five years and at least five years preceding his election, a citizen of the State, to the office of Sheriff. He shall hold office for four years, and until his successor is duly elected and qualified; shall give such bond, exercise such powers and perform such duties as now are or may hereafter be fixed by law.
      In case of vacancy by death, resignation, refusal to serve, or neglect to qualify, or give bond, or by disqualification or removal from the County or City, the Governor shall appoint a person to be Sheriff for the remainder of the official term.
      The Sheriff in each county and in Baltimore City shall receive such salary or compensation and such expenses necessary to the conduct of his office as may be fixed by law. All fees collected by the Sheriff shall be accounted for and paid to the Treasury of the several counties and of Baltimore City, respectively.”

      . Courts art. § 2-309(d) provides:
      “(1) In Baltimore City, the Sheriff shall receive a salary of $25,000. He shall appoint an undersheriff and chief deputy sheriff, three supervisory deputy sheriffs, one deputy sheriff writ clerk and four assistant deputy sheriff writ clerks, one stenographer and docket clerk, two clerks and he may appoint a total of 61 deputy sheriffs. Salaries for these employees shall be set by the Secretary of Personnel. A deputy sheriff who uses his personal automobile is entitled to a monthly automobile allowance at the same rate paid to other State.employees. Any sheriff who is assigned a city-owned automobile may not receive the monthly automobile expense allowance. They shall also have assistants at the compensation provided for in the annual ordinance of estimates of Baltimore City. Provision shall also be made in the ordinance for the expenses of the office of the Sheriff, including the purchase and maintenance of motor vehicles. The Mayor and City Council has the same power with respect to the salaries of the office of the Sheriff as it has under the city charter with respect to the salaries of all municipal departments. Employees of the Sheriff’s office, except the Sheriff, shall be selected according to the provisions of § 9E of Article 64A of the Code.”

      . By subsequent amendments additional agencies authorized to make arrests were placed under the umbrella of LEOBR. They are:
      “(7) The State Aviation Administration police force of the Department of Transportation, the Mass Transit Administration police force of the Department of Transportation, the Maryland toll facilities police force of the Maryland Transportation Authority, and the Maryland Port Administration police force of the Department of Transportation; or
      (8) The police officers of the Department of Natural Resources; or
      (9) The Maryland Alcohol and Tobacco Tax Enforcement Unit.” Md. Ann. Code art. 27, § 727 (b) (7) through (9).

        See Laws 1975, ch. 809, § 1; Laws 1976, ch. 482, § 1, ch. 484, ch. 504, § 1; Laws 1977, ch. 366, § 1.

      . We are not to be understood as being critical of the Attorney General’s altering of his position. There is clear precedent for such action. See Murphy v. Yates, 276 Md. 475, 348 A.2d 837 (1975) vis á vis 60 Opinions of the Attorney General 127 (1975).

      . Whatever may have been the power and grandeur of the office of sheriff, it has eroded with the passage of time so that, in the words of the Court of Appeals, the office is, “under our Constitution, ... ministerial in nature; a sheriffs function and province is to execute duties prescribed by law.” Crosse v. Board of Elections, 243 Md. 555, 561, 221 A.2d 431 (1966). In Baltimore City, for the most part, that means process serving.


author: Moylan, J.,

text:
    FREDERICK A. GILLIS, JR. v. STATE OF MARYLAND ALICE STEVENSON v. STATE OF MARYLAND
    [No. 135,
    [No. 582,
    September Term, 1979.]
    September Term, 1979.]

      Decided December 6, 1979.

    The cause was argued before Morton, Moylan and Mason, JJ.

      Stanley S. Cohen for appellants.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Denholm, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant Frederick A. Gillis, Jr. was convicted by a Baltimore City jury of possession of heroin. Upon this appeal, he raises four contentions:

1. That he was subjected to a massive campaign of police and prosecutorial abuse;
2. That he was denied his constitutional right to a speedy trial;
3. That the trial judge erroneously failed to disqualify himself, and
4. That the court erred in not suppressing physical evidence.

It will only be necessary for us to address the speedy trial issue.

The appellant Alice Ruth Stevenson was also convicted of possession of heroin with intent to distribute and with the maintaining of a common nuisance. Both in terms of the original criminal activity and the procedural history of the prosecution, the case of Alice Ruth Stevenson was clearly auxiliary to that against Frederick J. Gillis, Jr. Her appellate fortunes will rise or fall with his.

The criminal activity charged against both appellants occurred on February 11, 1977. They were both arrested in the course of the same raid and the time clock with respect to both began running on that date. On December 1,1977, ten months later, both appellants filed a Motion for Speedy Trial. On January 25, 1978, the appellant Gillis filed a Motion to Dismiss for Lack of Speedy Trial. With respect to both appellants, a hearing on their various pretrial motions was conducted between August 16 and August 21, 1978. The motions were denied and the trials leading to their convictions now under review were held.

At the outset, we note the passage of 18 months between arrest and trial is of constitutional dimension and, therefore, is enough to trigger analysis of the four-factored test of Barker v. Wingo, 407 US 514.

The first factor to be considered is simply the arithmetical running of the time clock, unburdened by any value judgments as to why it ran or what resulted from its running. In the special world of speedy trial analysis, the time period of 18 months is significant but not remarkable. It is not so minimal as to skew the remaining analysis according to the other three factors in favor of the State; nor is it so inordinately excessive as to skew analysis of the remaining factors in favor of the appellants. It is simply not the pivotal factor in this case.

The second factor of “demand-waiver” tilts distinctly in favor of the appellants. They each demanded a speedy trial almost nine months before they received that trial. When the demands for speedy trials came, some ten and one-half months had already elapsed since the prosecutions began. As of December 1, 1977, the State was put upon definite notice to move forward expeditiously. Cognizant of the many logistical burdens that face a busy and overworked prosecutor’s office, we are not condemning a “business as usual” approach during ordinary times. We are simply reminding the State that once the “red alert” has been sounded, it is incumbent to react with a greater sense of urgency. The pace of activity between December, 1977 and August, 1978, which might not have been inappropriate one year earlier in the running of this particular calendar and which might not have been inappropriate if the demand for speedy trial had never been made, became significantly less appropriate after the State was alerted to be at “battle stations.”

The prejudice factor is not remarkable in either direction. Alice Ruth Stevenson was free on bail one day after her arrest. The appellant Frederick J. Gillis, Jr. was incarcerated for one month following his arrest but does not claim that this was a product of undue delay or that the State was derelict for not bringing him to trial within 30 days of his arrest. Nothing was shown one way or the other with respect to pretrial anxiety and nothing was shown with respect to the impact of the delay upon the defense of the case. The appellants were content to rely, as they may, upon the presumption of prejudice arising out of the very delay itself. Although this does not give as much weight to this factor as demonstrated prejudice might, it is enough to tilt the scales mildly in favor of the appellants. This is so particularly when the State fails to rebut the presumptive prejudice in any way or to diminish its impact.

In our judgment, the pivotal factor against the State in this case is that of “fault” or “reason for delay”. Even here, we narrow the focus. On two occasions between February, 1977 and November, 1977, the case was set for trial and was postponed at the request of the defense, because defense counsel was ill. Any delay, therefore, within this first nine months is chargeable exclusively to the defense. A trial date was finally set for November 18,1977. Even though all delay prior to that point is legitimately chargeable to the defense, it does not mean that we begin our reckoning as if November, 1977 were still February, 1977. The earlier delay, though chargeable to the defense, nonetheless, injects an additional sense of urgency in the proceedings after November, 1977 that would not be present if the case were a new one. The very age of the case at that point militates toward having a “fast track” available for “intensive care” or “special problem” cases.

An additional dimension is present in this case as we assess the reason for delay between November, 1977 and August, 1978. A surface level of analysis would ascribe some of the subsequent delay to the procedural tactics of the defense. An analysis in fuller context, however, reveals that much of the procedural “traffic jam” arose out of the massive barrage of charges brought by the State against the appellant Gillis. We are not prepared to say that the charges were brought in bad faith for the charges were lodged by appropriate charging authorities — either the State’s Attorney by way of criminal information or the Grand Jury by way of indictment. Nor are we prepared to say that the numerous search and seizure warrants executed against Gillis were obtained or executed in bad faith, for each was issued upon a finding of probable cause by a neutral and detached judicial figure. Nonetheless, the very massiveness of the investigative and prosecutorial bombardment generated untold procedural and logistical problems for the defense.

There is a suggestion in the record that the State was interested in using Gillis as a source of information or as a State’s witness in the highly publicized proceedings against Colonel Watkins of the Police Department. Gillis apparently did not render the cooperation which was sought. Regardless of the reason, Gillis was subject to intense and frequent confrontation with the police throughout 1975, 1976, and 1977. The upshot was that both appellants filed, on November 18, 1977, a Motion to Dismiss for Police and Prosecutorial Misconduct and Persecution. The State obtained a continuance in order to answer that motion. The trial of the appellants, therefore, could not go forward on November 18, 1977.

Without becoming unnecessarily immersed in the tangled skein of Gillis’s many involvements with the law, we note a few highlights. On December 29, 1975, two criminal informations were filed against him. On December 15, 1976, he was found not guilty on both charges by Judge J. Harold Grady in the Criminal Court of Baltimore. Within 24 hours four indictments were handed down charging, inter alia, the appellant and the appellant’s mother with conspiracy to violate the narcotics laws. The conspiracy went to the same date and incident as did the substantive charges on which the appellant had been found not guilty the day before. Six months later, all of these indictments were nol-prossed. These indictments were still hanging over the appellant’s head at the time when charges now under review were brought. During the approximately two-year period from November, 1975 through January, 1978, no less than 19 search warrants were executed upon the appellant Gillis, his mother and his girlfriend. Six of these executions of search warrants occurred while the present charges were pending. Two additional indictments, charging the distribution of heroin and conspiracy to violate the narcotics laws on July 29,1976, were handed down on December 15,1976. They were pending against the appellant throughout the pendency of the present charges and were not nol-prossed until March, 1979. On October 18, 1977, another criminal information was filed against the appellant, charging him with possession with intent to distribute heroin on September 17, 1977. That case was ultimately tried on October 6,1978, and the appellant was found not guilty. A companion case to the present case, charging conspiracy to violate the narcotics laws, did not go to trial with the present case and was ultimately nol-prossed in 1979.

When the present case could not be tried on November 18, 1977, the appellants filed their demand for a speedy trial on December 1,1977. Five days later, Gillis was indicted on two new charges of assault with intent to murder, the crimes having allegedly occurred on October 31, 1977. After Gillis filed his motion to dismiss the present indictment because of the alleged denial of his right to a speedy trial, as of January 25, 1978, the prosecution indicated to the court that it was electing to proceed on the assault with intent to murder indictments before going forward with the present charges.

On March 13,1978, the appellant Gillis filed in the new case a motion similar to the one he had filed in this case — a Motion to Dismiss for Police and Prosecutorial Misconduct and Persecution. At the trial date set for the assault with intent to murder case on April 7,1978, it developed that the motion had not been answered and no hearing on it had been held. As a result, the trial was postponed. A .trial date was reset for June 28, 1978. On June 28, the appellant Gillis objected, quite properly, to the fact that no hearing had been held on his motion to dismiss. The trial judge also unexpectedly announced that the present case would be tried before the assault case. The appellant on that day had to request postponement because, not anticipating the narcotics trial as opposed to the assault with intent to murder trial, he needed to get his witnesses in. A hearing date for the motion to dismiss in this case was then set for August 16, 1978.

The assault with intent to murder charges were at a later date nol-prossed.

In the last months before this case came to trial, three new charges were lodged against Gillis. On June 23,1978, he was indicted for robbery. A month later the charge was nol-prossed. On June 26, 1978, a criminal information was filed charging him with the possession of heroin with intent to distribute. That information was ultimately nol-prossed. On July 10, 1978, an indictment was handed down charging Gillis with assault with intent to murder. That indictment was ultimately nol-prossed.

Nine months elapsed between appellants’ demand for a speedy trial and the trial itself. This delay was attributable to the filing of the new assault with intent to murder charges against Gillis and the decision to proceed first to trial on those charges. The failure to afford a hearing on the motion to dismiss aborted a scheduled trial on those charges. A second scheduled trial on those charges was aborted when the court overruled the prosecutor’s decision and determined to try these charges first. Additional months elapsed because a hearing had not yet been held on the motion to dismiss. Tactical decisions within the prosecutor’s office and equivocation by the court were the reasons these appellants did not get an earlier trial. The obvious source of confusion and equivocation was the multiplicity of charges against Gillis at various stages along the assembly line.

In the last analysis, the reason for the last nine months of delay lies at the feet of the State. The period of delay was significant. Prejudice is presumed. An appropriate demand had been made by the appellants. Balancing all of the factors, we conclude that their rights under the Sixth Amendment to a speedy trial were violated.

Judgments reversed; costs to be paid by the Mayor and City Council of Baltimore.