author: REED, J.

text:
    135 A.3d 883
    Montgomery Blair SIBLEY v. John DOE, et al.
    No. 0417,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    April 28, 2016.

      Pro Se, appellant.
    Bradley J. Neitzel (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
    Panel: KRAUSER, C.J., BERGER, REED, JJ.
   REED, J.

Montgomery Blair Sibley, the appellant, petitioned the Circuit Court for Montgomery County for a declaratory judgment that he has a right to appear in person before the Grand Jury to present evidence that the President of the United States is violating Maryland criminal law by possessing, displaying, and/or representing to be his own “a fictitious or fraudulently altered government identification document.” Md.Code (2002, 2012 RepLVol), Crim. Law (“CL”) § 8-303(b). The circuit court, however, refused to enter such a declaratory judgment. Subsequently, the appellant filed this timely pro se appeal. He presents five questions for our review, which we have reduced to two and rephrased:

1. Did the circuit court err where it dismissed the appellant’s Complaint for Declaratory Relief without making a written declaration of the parties’ rights?

2. Did the circuit court commit an abuse of discretion where it denied the appellant’s motions for recusal and pre-service discovery?

For the following reasons, we answer the first question in the affirmative and the second in the negative. Therefore, we shall vacate the judgment below and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

On September 13, 2014, the appellant wrote the Honorable John W. Debelius III requesting that he “issue a warrant for the arrest of [President] Barack Hussein Obama” for violating CL § 8-303. Shortly thereafter, on September 22, 2014, the appellant also wrote the Assistant State’s Attorney for Montgomery County requesting permission to appear in person before the Grand Jury to present evidence of President Obama’s aforementioned alleged violations of Maryland criminal law. The Assistant State’s Attorney responded to the appellant by letter dated September 25, 2014. He indicated that “[t]he Grand Jury for Montgomery County, Maryland has considered your request that an investigation be opened into whether documents relating to President Obama’s eligibility for office are fraudulent ... [and] declines to investigate this matter.” The letter was co-signed by the foreman of the Grand Jury; however, the foreman’s signature was illegible.

On October 6, 2014, the appellant filed a Complaint for Declaratory Relief against John Doe, foreman of the Montgomery County Grand Jury. Also on October 6, 2014, the appellant filed a motion to conduct pre-service discovery and a motion to expedite the hearing. Both of these motions were denied by Judge Debelius on October 20, 2014. Therefore, on November 6, 2014, the appellant filed “Verified Emergency Motions to (I) Disqualify the Honorable John W. Debelius III, and (II) Reconsider Orders Denying Motions to Conduct PreService Discovery and to Expedite.” The appellant based his motion to disqualify Judge Debelius on the fact that he had previously sent him a letter requesting a warrant for President Obama’s arrest, thus making him a witness to the action. Judge Debelius, by Order dated November 6, 2014, denied both the motion to disqualify and the motion for reconsideration.

On December 2, 2014, the State’s Attorney for Montgomery County filed a Motion to Intervene and a Motion to Dismiss. On December 19, 2014, Judge Debelius granted the Motion to Intervene, ordering that the State’s Attorney be added as a defendant. A hearing on the State’s Attorney’s Motion to Dismiss was held before the Honorable Michael D. Mason on January 22, 2014. At the conclusion of the hearing, Judge Mason orally granted the Motion to Dismiss subject to the appellant filing an amended complaint. Judge Mason followed up his oral ruling with a written Order of Dismissal dated February 3, 2015. Before that, on January 27, 2015, the appellant filed an Amended Complaint along with a Motion to Alter or Amend the January 22, 2014, Order of Dismissal. Judge Mason denied the Motion to Alter or Amend on May 11, 2015. Four days later, the appellant timely noted this appeal.

Discussion

I. Dismissal of Complaint for Declaratory Relief

A. The Contentions of the Parties

The parties agree that in granting the Motion to Dismiss the Complaint for Declaratory Relief, the circuit court failed to discharge its duty to make a written declaration of the appellant’s rights. Therefore, the parties concur that at the very least a procedural remand for re-entry of judgment is appropriate. Their agreement, however, ends here.

According to the appellant, the circuit court erred in the first place where it granted the State’s Attorney’s Motion to Dismiss. The appellant advances this argument on a variety of grounds. First, the appellant asserts that under Maryland law, the granting of a motion to dismiss is “rarely appropriate in a declaratory judgment action,” Broadwater v. State, 303 Md. 461, 465, 494 A.2d 934 (1985), and thus was inappropriate here. Second, the appellant contends that the circuit court should have addressed the fundamental question raised in his Complaint for Declaratory Relief, which was whether the preconditions established by the Court of Appeals in Brack v. Wells, 184 Md. 86, 40 A.2d 319 (1944), “improperly impaired [his] Common Law right to directly and in person petition the Grand Jury.” Appellant’s Br. at 11. Third, the appellant argues the circuit court erred by dismissing the Complaint without addressing issues raised therein that were left unresolved by Brack. These include whether, after he has “exhausted] his remedy before the magistrate and state’s attorney,” id. at 97, 40 A.2d 319, he has the right to present to the foreman in person his request to appear before the Grand Jury, and whether the foreman would thereafter be required to present his request to the body over which he presides. Finally, the appellant assigns error to the fact that “the circuit court failed to declare whether [his] right to access the Grand Jury has been interfered with by prosecutorial misconduct,” Appellant’s Br. at 15 (emphasis omitted), namely, by the Assistant State’s Attorney’s alleged declaration to the foreman that he is a “birther lunatic.”

The State’s Attorney, on the other hand, argues that the circuit court did not err beyond its failure to make a written declaration of the appellant’s rights. Accordingly, the State’s Attorney asserts the circuit court did not err insofar as it granted the Motion to Dismiss. The State’s Attorney, pointing to the holding in Brack, contends that private citizens only have the right to ask the foreman for permission to appear before the Grand Jury, not the right to present their requests to the foreman in person. However, the State’s Attorney argues that in this case the appellant did not even trigger his right to ask the foreman for permission to appear because he did not “exhaust his remedy before the magistrate and state’s attorney.” Brack, 184 Md. at 97, 40 A.2d 319. The State’s Attorney asserts that while the appellant apparently read “magistrate” in Brack to mean the circuit court, “the Court’s reference to ‘magistrate’ in 1944 is equivalent to ‘District Court Commissioner’ in 2015.” Appellee State’s Attorney’s Br. at 5.

In response to the appellant’s contention regarding prosecutorial misconduct in connection with the Assistant State’s Attorney’s statement to the foreman that he is a “birther lunatic,” the State’s Attorney argues that “[u]nder Maryland law, ... there is no prohibition against prosecutors communicating to a grand jury their opinions about allegations before the jury, including the credibility of those who make the allegations.”

B. Standard of Review

We have recently explained that we

conduct[ ] a de novo review of the circuit court’s granting of a motion to dismiss, see Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 142, 46 A.3d 443 (2012), applying the same standard as the circuit court and determining whether that decision was legally correct. See Reichs Ford Rd. Joint Venture v. State Roads Comm’n, 388 Md. 500, 509, 880 A.2d 307 (2005) (citing Adamson v. Corr. Med. Servs., 359 Md. 238, 246, 753 A.2d 501 (2000)). “The appellate court accords no special deference to the circuit court’s legal conclusions.” Patton, 437 Md. at 95, 85 A.3d 167.

Margolis v. Sandy Spring Bank, 221 Md.App. 703, 713-14, 110 A.3d 784 (2015). Thus, because we apply the same standard as the circuit court, we are required to

assume[ ] the truth of the complaint’s factual allegations and of any reasonable inferences that can be drawn therefrom. See, e.g., Patton v. Wells Fargo Fin. Md., Inc., 437 Md. 83, 95, 85 A.3d 167 (2014) (citing Bobo v. State, 346 Md. 706, 708, 697 A.2d 1371 (1997)). A court, however, need not accept the truth of pure legal conclusions. See, e.g., Shepter v. Johns Hopkins Univ., 334 Md. 82, 103, 637 A.2d 1223 (1994); John B. Parsons Home, LLC v. John B. Parsons Found., 217 Md.App. 39, 69, 90 A.3d 534 (2014) (quoting Shenker v. Laureate Educ., Inc., 411 Md. 317, 335, 983 A.2d 408 (2009)) (“ ‘[m]ere conclusory charges that are not factual allegations need not be considered’ ”). Moreover, “[a]ny ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader.” Shenker, 411 Md. at 335, 983 A.2d 408; John B. Parsons, 217 Md.App. at 69, 90 A.3d 534.

A court should dismiss a complaint for failure to state a claim only if the alleged facts and reasonable inferences would fail to afford relief to the plaintiff. Bobo, 346 Md. at 709, 697 A.2d 1371.

Margolis, 221 Md.App. at 713, 110 A.3d 784.

C. Analysis

The seminal case on the issue of what rights a private citizen has when he or she desires to present evidence of criminal violations to the Grand Jury is Brack, supra. The Court of Appeals summarized its holding in that case as follows:

It is the opinion of this Court that every citizen has a right to offer to present to the grand jury violations of the criminal law. This does not mean that an individual member of that body may be approached. The citizen should exhaust his remedy before the magistrate and state’s attorney as was done in the instant case, and if relief can not [sic] be had there, he then has the right to ask the grand jury for permission to appear before that body.

Id. at 97, 40 A.2d 319. The State’s Attorney argues that this holding stands not for the notion that a private citizen has the right to present in person before the foreman, but rather for the idea that he or she has the right to ask the foreman for the permission to appear before the Grand Jury. We agree and shall explain.

The Court of Appeals’ holding in Brack, as we see it, is straightforward. Its core is that “every citizen has a right to offer to present to the grand jury violations of the criminal law.” Id. Conveniently, the Court of Appeals left no room for ambiguity regarding what this right entails. For example, the Court clearly stated that the existence of the right “does not mean that an individual member of [the Grand Jury] may be approached.” Id. (underline added). In addition, the Court described how a citizen is to go about exercising his right to offer to present evidence to the Grand Jury as follows: “The citizen should exhaust his remedy before the magistrate and state’s attorney[,] ... and if relief can not [sic] be had there, he then has the right to ask the grand jury for permission to appear before that body.” Id.

In the case sub judice, the appellant first wrote Judge Debeláis to request the issuance of an arrest warrant for President Obama. He then wrote the Assistant State’s Attorney to request permission to appear before the Grand Jury to present evidence of President Obama’s alleged violations of Maryland criminal law. His latter request was responded to on February 5, 2015, in the form of a letter signed by the foreperson of the Grand Jury. That letter contained the following:

On January 29, 2015, the Grand Jury for Montgomery County, Maryland received a sealed packet from you asking that in [sic] investigation be opened into whether documents relating to President Obama’s eligibility for office are fraudulent. The Grand Jury declined to investigate this matter.

Therefore, we agree with the State’s Attorney that “[the appellant] has exercised his right to ask the ... foreperson for permission to present his allegations to the grand jury.” Appellee State’s Attorney’s Br. at 4. We also agree with the State’s Attorney that the appellant does not have the right to appear in person before the foreman. See Brack, 184 Md. at 97, 40 A.2d 319 (“It is the opinion of this Court that every citizen has the right to offer to present to the grand jury violations of the criminal law. This does not mean that an individual member of that body may be approached.” (underline added)). Here, unlike Brack, the Assistant State’s Attorney delivered the appellant’s request to the foreman. Therefore, the appellant’s rights with respect to the Grand Jury have not been violated, and thus the circuit court did not err in granting the Motion to Dismiss the Complaint for Declaratory Relief.

However, we agree with both parties that the circuit court erred in- dismissing the Complaint for Declaratory Relief without making a formal declaration of the appellant’s rights. The Court of Appeals held in Harford Mut Ins. Co. v. Woodfin Equities Corp., 344 Md. 399, 687 A.2d 652 (1997), that

[t]he fact that the side which requested the declaratory judgment did not prevail in the circuit court does not render a written declaration of the parties’ rights unnecessary. As this Court stated many years ago, “whether a declaratory judgment action is decided for or against the plaintiff, there should be a declaration in the judgment or decree defining the rights of the parties under the issues made.” Case v. Comptroller, 219 Md. 282, 288, 149 A.2d 6, 9 (1959). See also, e.g., Christ v. Department, supra, 335 Md. [427] at 435-436, 644 A.2d [34] at 38 [ (1994) ] (“[t]he court’s rejection of the plaintiffs position on the merits furnishes no ground for” failure to file a declaratory judgment); Broadwater v. State, 303 Md. 461, 467, 494 A.2d 934, 937 (1985) (“the trial judge should have declared the rights of the parties even if such declaration might be contrary to the desires of the plaintiff’); East v. Gilchrist, 293 Md. 453, 461 n. 3, 445 A.2d 343, 347 n. 3 (1982) (“where a plaintiff seeks a declaratory judgment ..., and the court’s conclusion ... is exactly opposite from the plaintiffs contention, nevertheless the court must, under the plaintiffs prayer for relief, issue a declaratory judgment”); Shapiro v. County Comm., 219 Md. 298, 302-303, 149 A.2d 396, 399 (1959) (“even though the plaintiff may be on the losing side of the dispute, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory decree”).

Harford, Mut. Ins. Co., 344 Md. at 414-15, 687 A.2d 652. Therefore, we hereby remand this case to the circuit court for re-entry of judgment. The re-entered judgment shall contain a written declaration of the appellant’s rights with respect to the Grand Jury. This declaration shall be consistent with this opinion and the holding of Brack, and acknowledge specifically that a District Court Commissioner is today’s equivalent of a “magistrate” for purposes of the exhaustion requirement we have been addressing in this section. See State v. Smith, 305 Md. 489, 501-02, 505 A.2d 511 (1986) (“[T]he legislature has bestowed upon commissioners of the District Court of Maryland the authority ‘in general, [to] perform all the functions of committing magistrates as exercised by the justices of the peace prior to July 5, 1971.’ ” (quoting Md.Code § 2-607(c)(2) of the Courts and Judicial Proceedings Article)).

II. Denial of Motions for Recusal and Pre-Service Discovery

A. Parties’ Contentions

The appellant argues that Judge Debelius abused his discretion in denying the motions for recusal and pre-service discovery. The appellant asserts that Judge Debelius was required to disqualify himself pursuant to Rule 2.11(a)(1) of the Maryland Code of Judicial Conduct (“CJC”), which states that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including ... circumstances ... [wherein t]he judge has ... personal knowledge of facts that are in dispute in the proceeding.” According to the appellant, Judge Debelius had impermissible knowledge of the case as a result of being “contacted by [the appellant] prior to filing suit as required by Brack ... as a condition precedent to Sibley contacting the Foreman of the Grand Jury.” Appellant’s Br. at 5 (underline omitted).

In addition, the appellant contends the denial of pre-trial discovery was an abuse of discretion because “if Sibley could not identify the John Doe Defendant, that person could not be served and the instant matter would ultimately be dismissed for lack of prosecution.” Appellant’s Br. at 7.

The State’s Attorney, on the other hand, argues Judge Debelius exercised his discretion properly in denying both of the motions presently at issue. In large part, we shall adopt the various arguments advanced by the State’s Attorney in our analysis below.

B. Standard of Review

We apply the abuse of discretion standard of review to both a trial judge’s decision whether or not to recuse himself and the denial of discovery. See Cicoria v. State, 89 Md.App. 403, 426-27, 598 A.2d 771, aff'd, 332 Md. 21, 629 A.2d 742 (1993) (citing Boyd v. State, 321 Md. 69, 74, 581 A.2d 1 (1990)) (recusal reviewed for abuse of discretion); See also Bacon v. Arey, 203 Md.App. 606, 671, 40 A.3d 435 (2012) (“We review the denial of discovery under the abuse of discretion standard[.]” (quoting Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 28, 878 A.2d 567 (2005))). As we have indicated time and time again,

[a]n abuse of discretion occurs “where no reasonable person would take the view adopted by the [trial] court[ ] ... or when the court acts without reference to any guiding principles, and the ruling under consideration is clearly against the logic and effect of facts and inferences before the court [ ] ... or when the ruling is violative of fact and logic.” Bacon, 203 Md.App. at 667, 40 A.3d 435 (quoting Beyond Systems, Inc., 388 Md. at 28, 878 A.2d 567).

C. Analysis

Neither the denial of the motion for recusal nor the denial of the motion for pre-service discovery constituted an abuse of discretion by the circuit court. We agree with the State’s Attorney that “not only was there never a ‘dispute’ as to whether [the appellant] had contacted Judge Debelius, but ‘personal’ in the [CJC Rule 2.11(a)(1) ] context only means knowledge from an ‘extrajudicial source,’ not knowledge ‘ac- • quired in a judicial setting.’ ” Appellee State’s Attorney’s Br. at 9 (quoting Scott v. State, 175 Md.App. 130, 152, 926 A.2d 792 (2007)). “Only bias, prejudice, or knowledge derived from an extrajudicial source is ‘personal’ [for purposes of recusal].” Scott, 175 Md.App. at 152, 926 A.2d 792. Therefore, because Judge Debelius acquired the knowledge at issue in a judicial setting, we hold that “a reasonable member of the public knowing all the circumstances would [not] be led to the conclusion that [his] impartiality might reasonably be questioned.” In re Turney, 311 Md. 246, 253, 533 A.2d 916 (1987). Accordingly, he did not abuse his discretion where he denied the appellant’s request for recusal.

We also agree with the State’s Attorney regarding the issue of whether Judge Debelius abused his discretion in denying pre-service discovery. In the appellant’s motion for pre-service discovery, he requested to that he be allowed to “[direct] interrogatories ... to ... [the] Assistant State’s Attorney [to whom he had written] ... to establish the identity of John Doe, Foreman, Montgomery County Grand Jury.” However, the Assistant State’s Attorney was never a party to the instant action, and Md. Rule 2-421 only permits interrogatories against parties. “[T]he circuit court ‘has the inherent power to control and supervise discovery as it sees fit.’ ” Bacon, 203 Md.App. at 673, 40 A.3d 435 (quoting Gallagher Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., 195 Md.App. 583, 596, 7 A.3d 160 (2010)). For these reasons, the circuit court properly denied the appellant pre-service discovery.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY VACATED AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY MONTGOMERY COUNTY.

      . The appellant presented his questions exactly as follows:
      I. Did Judge Debelius, Ill's involvement in this case deny to Sibley a "fair trial in a fair tribunal”?
      II. Was Sibley entitled to pre-service discovery to identify the John Doe Defendant?
      III. Did the Complaint fail to state a cause of action?
      IV. Was Sibley’s Right to Access the Grand Jury Tainted by Prosecutorial Misconduct?
      V. Whether Significant Grand Jury Policy Issues Should be Addressed by this Court?

      . CL § 8-303 provides, in part:
      (b) A person may not, with fraudulent intent:
      (1) possess a fictitious or fraudulently altered government identification document;
      (2) display, cause, or allow to be displayed a fictitious or fraudulently altered government identification document;
      (3) lend a government identification document to another or knowingly allow the use of the person’s government identification document by another; or
      (4) display or represent as the person's own a government identification document not issued to the person.

      . The appellant is among the "groups of people, nicknamed ‘birthers,’ who continue to question [President Obama’s] place of birth and therefore legitimacy as President [under Article II, Section 1, Clause 4 of the United States Constitution].’’ Farah v. Esquire Magazine, Inc., 863 F.Supp.2d 29, 31 (D.D.C.2012), aff'd sub nom. Farah v. Esquire Magazine, 736 F.3d 528 (D.C.Cir.2013). In fact, the appellant has previously filed at least three lawsuits in the United States District Court for the District of Columbia challenging President Obama’s eligibility for office. See Sibley v. Obama, 866 F.Supp.2d 17, 18 (D.D.C.2012), aff'd, 12-5198, 2012 WL 6603088 (D.C.Cir. Dec. 6, 2012) ("[Mr. Sibley] asserts so-called ‘birther’ claims against President Barack Obama, aiming to have him ousted from office and to have his name removed from the ballot in November 2012 because he supposedly was not bom in the United States.”); Sibley v. Obama, 121-CV-1832 JDB, 2012 WL 6625813 (D.D.C. Dec. 19, 2012), aff'd, 522 Fed.Appx. 2 (D.C.Cir.2013); Sibley v. Alexander, 916 F.Supp.2d 58 (D.D.C.2013).

      . "In the case under discussion, ... the appellant has made an effort to have a case, which he claims involves a violation of the criminal laws of this State, presented to the grand jury by the state’s attorney, which has been refused[.]” Brack, 184 Md. at 97, 40 A.2d 319.

      . In reaching this holding, we agree with the State's Attorney that the appellant’s rights were not violated when the Assistant State's Attorney described him to the foreman as a “birther lunatic.” In short, we have found no case law that supports the appellant’s contention in this regard, namely, that it is impermissible for a state’s attorney to communicate to the grand jury his or her opinions of persons making allegations to that body.

      . The State’s Attorney advanced this argument in its brief, but mistakenly cited to Md. Rule 2-412.


source: Caselaw Access Project

author: BERGER, J.

license: Public Domain

text:
    135 A.3d 892
    Laurence S. KAYE v. Linda WILSON-GASKINS.
    No. 525,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    April 28, 2016.

      Laurence S. Kaye (Kaye Law Firm, Rockville, MD), on the brief, for Appellant.
    Fred B. Goldberg (Law Offices of Fred B. Goldberg, PC, Columbia, MD), on the brief, for Appellee.

      Panel: DEBORAH S. EYLER, BERGER, and REED, JJ.
   BERGER, J.

Laurence Kaye (“Kaye”), appellant, an attorney, represented Linda Wilson-Gaskins (“Wilson-Gaskins”), appellee, in a wrongful termination lawsuit filed against Wilson-Gaskins’s former employer, Government Employees Insurance Company (“GEICO”). Following that representation, Wilson-Gaskins filed a complaint against Kaye alleging “legal malpractice.” The Circuit Court for Montgomery County granted summary judgment in favor of Kaye and dismissed Wilson-Gaskins’s complaint. Wilson-Gaskins appealed the dismissal of her claim. We affirmed the judgment of the circuit court and held that Wilson-Gaskins failed to make a prima facie case for professional negligence. We further held that a release contained in a settlement agreement between the parties was enforceable.

Thereafter, on March 17, 2015, Kaye filed a three-count complaint in the Circuit Court for Montgomery County alleging, among other things, that the filing of Wilson-Gaskins’s lawsuit against Kaye constituted a breach of the parties’ settlement agreement. Wilson-Gaskins filed a motion to dismiss Kaye’s complaint. Following two hearings, the court dismissed the first two counts of Kaye’s complaint. Kaye then voluntarily dismissed count three of his complaint. This timely appeal followed.

On appeal, Kaye argues that the circuit court erred in granting Wilson-Gaskins’s motion to dismiss his complaint. Specifically, Kaye presents four issues for our review, which we consolidate and rephrase as follows:

Whether the circuit court erred in dismissing Kaye’s complaint for breach of contract.

For the reasons stated herein, we shall affirm the judgment of the Circuit Court for Montgomery County.

FACTUAL AND PROCEDURAL BACKGROUND

For thirty-six years prior to her termination, Wilson-Gas-kins was a Senior Claims Examiner for GEICO. In that capacity, Wilson-Gaskins was “responsible for overseeing and handling a case from beginning to end.” She handled cases “including major bodily injury, or any case where litigation was anticipated,” and she was “responsible for processing the entire case on [her] own,” including “contacting and interviewing witnesses, evaluating medical evidence, attempting to settle cases without litigation, referring the cases to outside counsel and ensuring that counsel was properly handling the case.”

Wilson-Gaskins alleged that, on March 20, 2006, she was “constructively discharged” from her employment with GEI-CO, after being told that if she did not retire, she would be terminated for “gross misconduct.” Kaye, and The Kaye Law Firm, subsequently represented Wilson-Gaskins in a lawsuit for wrongful discharge in the Circuit Court for Montgomery County captioned Linda Wilson v. Government Employees Insurance Co., Case No. 279956V. On June 9, 2009, following a trial, the jury returned a verdict in favor of Wilson-Gaskins in the amount of $1,415,991. Despite her significant recovery, Wilson-Gaskins was not satisfied with Kaye’s handling of the litigation.

On June 14, 2009, Wilson-Gaskins wrote Kaye a letter requesting that “the proceeds from the jury award ... be held and not be disbursed in any way, until we have reached an agreement on the total distribution to include Attorney fees, cost [sic ] and expenses.” She stated that she was “requesting this action because of [her] overall dissatisfaction with the handling of [her] case from a legal standpoint.” Specifically, Wilson-Gaskins expressed that she was dissatisfied with several aspects of Kaye’s representation, including Kaye’s decision to file the claim in Montgomery County instead of “the more favorable jurisdiction of Prince George[’]s County”; delays in filing suit and with trial dates “as a result of [Kaye’s] needs”; the “failure to allege counts of retaliation and breach of contract” until beyond the statute of limitation (resulting in dismissal of those claims); and the failure to prove, to the satisfaction of the court, counts for discrimination and wrongful termination (resulting in dismissal on the discrimination count and the court’s denial of an award for punitive damages). Wilson-Gaskins asserted that, as a result of Kaye’s actions, she incurred “substantial financial loss,” and requested a “substantial reduction in [his] attorney fees.”

On June 17, 2009, Kaye sent Wilson-Gaskins a letter by facsimile regarding “Disbursement of Funds/Settlement of Claims.” That letter provided, in relevant part:

In the past two days, you and I have engaged in a series of discussions regarding the disbursement of funds, settlement of your claims against GEICO, and allegations that I and The Kaye Law Firm somehow mishandled aspects of your case.

After our discussions, we arrived at a variety of agreements regarding actions to be taken. I am summarizing them below:

1. You authorize me to inform [GEICO’s counsel] that you agree that there will be no appeal of any issues of the case, and you are prepared to fully settle all claims, upon the payment of the $1,415,991.00 awarded in this case.[]

2. Assuming the settlement of the case at this point, Kaye Law Firm will receive an additional $275,000.00 in attorney fees for its representation of you in this matter, beyond what you have already paid in attorney fees earlier in this case ($45,000.00). You understand that this fee represents a significant reduction from the fees to which we are entitled as set forth in our retainer agreement. We have agreed that this is a flat fee.

7. You and I have agreed that we will sign a separate agreement between yourself, The Kaye Law Firm, and myself, which will include complete releases of any and all claims, including claims for professional negligence arising out of our handling of the case____You will act expeditiously to execute such release, and I agree not to disburse our attorney fees until that release is executed.

I believe that this letter accurately describes our discussions on the various issues set forth above. If you are in agreement with the contents of the letter, and give me your approval to proceed accordingly, please indicate this by signing your name below and sending the letter back to me by facsimile.

Wilson-Gaskins’s signature appears on the letter, dated “6-7-09.”

On July 7, 2009, Wilson-Gaskins, Kaye, and The Kaye Law Firm entered into a settlement agreement. The settlement agreement contains what purported to be a release which provides in relevant part:

A. Wilson[-Gaskins] does release and forever discharge Kaye ... [his] agents, servants, employees and all other persons, firms, associations, and corporations, past and present, of and from any and all actions, claims and demands including claims or actions for contribution or indemnity of whatever nature now existing or which may hereafter arise out of the legal representation of Wilson[-Gaskins] in regard to [Case No. 279956] including any consequences thereof now existing or which may develop, whether or not such consequences are known or anticipated. Kaye does release and forever discharge Wilson[-Gaskins] from any and all actions, claims and demands including claims or actions for contribution or indemnity of whatever nature now existing or which may hereafter arise out of the legal representation of Wilson[-Gaskins] in regard to [Case No. 279956] including any consequences thereof now existing or which may develop, whether or not such consequences are known or anticipated.

C. Wilson[-Gaskins] further acknowledges:

(1) That she understands that before signing this General Release she was aware that she could, if she chose, consult with another lawyer of her choosing, that such consultation or representation is appropriate and that she has either consulted with an attorney of her choosing or voluntarily chosen to enter into this General Release without such independent consultation.

(2) That no additional promise or agreement has been made as consideration for this Release and that the signing thereof has not been induced by any representations of the parties released, or by anyone in their behalf, concerning the nature, extent or duration of the injuries or damages sustained, or any other matter.

D. In recognition of the work Kaye performed on behalf of Wilson[-Gaskins] in conjunction with [Case No. 279956], Wilson[-Gaskins] agrees that Kaye shall be entitled to an additional attorney fee in the amount of Two Hundred Seventy-Five Thousand Dollars ($275,000.00) beyond any attorney fees already paid to Kaye (which the parties agree has been approximately $45,000.00 at the inception of the case) prior to the date of the execution of this Release, and that Wilson[-Gaskins] continues to be responsible for all costs incurred in the prosecution of [Case No. 279956]. Wilson[-Gaskins] has also agreed that Kaye should be paid an additional Twenty-Five Thousand Dollars ($25,000.00) as a retainer for costs, and will pay any additional costs not covered by the retainer promptly from the moneys she has recovered as a result of her judgment in [Case No. 279956].

E. Wilson[-Gaskins] recognizes and agrees that the additional attorney fees received by Kaye represent a reduction in what Kaye would otherwise have been entitled to under the retainer agreement in effect between the parties.

F. Wilson[-Gaskins] agrees that she retained separate counsel for the purposes of advising her as to matters about taxation, and she is solely responsible for paying her tax counsel. Wilson[-Gaskins] further acknowledges that Kaye has not held himself out to be an expert in the taxation of settlements and or damages.

G. Wilson[-Gaskins] agrees that she has reviewed this Agreement and General Release, and understands each and every provision of it.

Both Wilson-Gaskins and Kaye signed the settlement agreement.

On June 1, 2012, Wilson-Gaskins, pro se, filed a complaint in the Circuit Court for Prince George’s County against Kaye, Kaye’s professional liability insurer, and GEICO, alleging that they had engaged in “legal malpractice, retaliation and collusion.” Thereafter, Wilson-Gaskins retained counsel, venue was transferred to Montgomery County, and GEICO as well as Kaye’s professional liability insurer were dismissed from the action.

In an amended complaint, Wilson-Gaskins asserted that Kaye’s breach of his professional duty of care constituted professional negligence and a breach of contract. WilsonGaskins alleged that she “suffered economic damages due to payment of unnecessary taxes, legal fees and similar expenses in excess of $75,000.” Kaye, in response, filed a motion to dismiss the amended complaint, or in the alternative, a motion for summary judgment. In his motion, Kaye argued that Wilson-Gaskins’s complaint was barred by the release in the parties’ settlement agreement.

After a hearing, the trial judge granted Kaye’s motion for summary judgment. Notably, the trial court did not expressly ground its decision in the language of the release contained in the parties’ settlement agreement. Rather, the court found that Wilson-Gaskins had not alleged facts sufficient to show that Kaye breached the relevant standard of care, that Wilson-Gaskins had failed to show that she suffered damages, and that any damages she did suffer were not caused by Kaye. Accordingly, the circuit court found that Wilson-Gaskins failed to make a prima facie showing of professional negligence or a breach of contract. As such, the circuit court granted Kaye’s motion for summary judgment. Wilson-Gaskins appealed the circuit court’s order granting summary judgment.

In an unreported opinion filed June 11, 2014, we affirmed the circuit court’s grant of Kaye’s motion for summary judgment. Initially, we held that the court was legally correct in finding that Wilson-Gaskins had failed to make a prima facie showing establishing that she was entitled to the relief she sought in her complaint. Accordingly, we affirmed the circuit court decision because Kaye had shown that there was no genuine dispute as to any material fact and that he was entitled to judgment as a matter of law. We continued, however, to address the enforceability of the release that Wilson-Gaskins signed. Upon considering the release, we held that:

[Wilson-Gaskins] presented no facts of substantive unconscionability. Indeed, when the court asked what damages Ms. Wilson-Gaskins suffered as a result of Mr. Kaye’s actions, counsel never mentioned that the Release was unfair or unreasonably harsh. The Release here was not unconscionable, and given that Ms. Wilson-Gaskins released all claims against Mr. Kaye “now existing or which may hereafter arise” out of the underlying litigation, the grant of summary judgment in favor of Mr. Kaye was proper.

Following our holding, Kaye filed a complaint in the Circuit Court for Montgomery County against Wilson-Gaskins. In his complaint, Kaye alleged that by filing her complaint, Wilson-Gaskins breached the release contained in the parties’ settlement agreement. Kaye further alleged that WilsonGaskins breached the implied covenant of good faith and fair dealing, and that she was anticipating further breaches of the contract. In response, Wilson-Gaskins, filed a motion to dismiss Kaye’s claims for breach of the release, and breach of the implied covenant of good faith and fair dealing. Additionally, Kaye filed a motion for partial summary judgment, claiming that our prior opinion affirmatively established Wilson-Gaskins’s liability as the law of the case. After two hearings, the circuit court acknowledged that the release absolved Kaye of liability for conduct within the scope of the agreement. Nevertheless, the court found that the agreement did not provide Kaye with an affirmative cause of action to pursue damages against Wilson-Gaskins. Accordingly, the circuit court granted Wilson-Gaskins’s motion to dismiss counts one and two of Kaye’s complaint.

Kaye, then, voluntarily dismissed count three of his complaint. This timely appeal followed. Additional facts will be discussed as necessitated by the issues presented.

STANDARD OF REVIEW

Under Maryland Rule 2 — 322(b)(2), a defendant may seek a dismissal of a complaint if the complaint fails “to state a claim upon which relief can be granted.” Indeed,

“[t]he proper standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct. In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action.” In reviewing the complaint, we must “presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom.” “Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven.”

Higginbotham v. Pub. Serv. Comm’n of Md., 171 Md.App. 254, 265-66, 909 A.2d 1087 (2006) (quoting Britton v. Meier, 148 Md.App. 419, 425, 812 A.2d 1082 (2002)). “When moving to dismiss, a defendant is asserting that, even if the allegations of the complaint are true, the plaintiff is not entitled to relief as a matter of law.” Heist v. E. Sav. Bank, FSB, 165 Md.App. 144, 148, 884 A.2d 1224 (2005). Accordingly, we will review Kaye’s complaint to determine whether the allegations presented satisfy the elements necessary to obtain the relief sought. In so doing, we will accept as true the factual allegations made in the complaint, but we review the legal premises upon which Kaye’s relief is sought de novo.

In the present action, Kaye seeks relief for an alleged breach of contract arising from the breach of the release contained in the parties’ settlement agreement. Accordingly, in reviewing the circuit court’s grant of Wilson-Gaskins’s motion to dismiss, we accept Kaye’s factual allegations, but we review de novo whether the allegations presented amount to a breach of the settlement agreement.

DISCUSSION

In the instant. litigation, Kaye contends that he is entitled to recover damages for Wilson-Gaskins’s breach of the parties’ settlement agreement. Specifically, Kaye asserts that the release contained in the agreement did not only immediately discharge any claim Wilson-Gaskins had against Kaye, but it also constituted a promise not to sue Kaye for claims arising out of his representation in the future. Wilson-Gaskins, for her part, argues that the parties’ agreement contains no continuing obligation for her to refrain from litigating against Kaye. Moreover, Wilson-Gaskins maintains that even if a covenant not to sue is read into the contract, that agreement was not breached. Additionally, Wilson-Gas-kins asserts that we should construe the release against Kaye as he is the drafter, that she pursued her litigation in good faith, and that public policy prohibits Kaye from limiting his liability in this sort of fashion.

The gravamen of the question as to whether Wilson-Gas-kins breached the release requires us to identify, interpret, and apply the settlement agreement that the parties entered into on July 7, 2009. Accordingly, in analyzing this question, we must identify the agreement between the parties. Upon identifying the agreement between the parties, we move to interpret the terms of that agreement. Only after we interpret the terms of the agreement will we apply the agreement and determine whether Kaye has pleaded sufficient facts that, if proven, would entitle him to the relief he seeks. For the reasons stated herein, we hold that the settlement agreement reached by the parties only discharged obligations owed to Wilson-Gaskins, and that Wilson-Gaskins tendered complete performance upon effectuating the release. Accordingly, Wilson-Gaskins could not have breached an obligation that already had been discharged. We, therefore, hold that the circuit court did not err in granting Wilson-Gaskins’s motion to dismiss Kaye’s complaint.

I. The July 7, 2009 Settlement Agreement Is Enforceable Against the Parties.

Initially, we note that there is a signed agreement between the parties, and that agreement is enforceable. This is so because we have previously held that the settlement agreement was not unconscionable and was enforceable. See Wilson-Gaskins v. Kaye, No. 692, Sep. Term 2013 (Md.Ct. Spec.App.2014). Accordingly, our holding that the settlement agreement is enforceable between the parties constitutes the law of the case. See Haskins v. State, 171 Md.App. 182, 189-90, 908 A.2d 750 (2006) (“ ‘[Ojnce an appellate court rules upon a question presented on appeal, litigants and lower courts become bound by the ruling, which is considered to be the law of the case.’” (quoting Scott v. State, 379 Md. 170, 183-84, 840 A.2d 715 (2004))).

Wilson-Gaskins asserts in her brief that our prior decision is not the law of the case because we affirmed the circuit court’s dismissal of her claims on the grounds that she had not made a prima facie case for professional negligence, not because the settlement agreement precluded the action. As such, Wilson-Gaskins perceives our opinion on the validity of the settlement agreement as dicta and not the law of the case. We disagree.

When a question of law is raised properly by the issues in a case and the Court supplies a deliberate expression of its opinion upon that question, such opinion is not to be regarded as obiter dictum, although the final judgment in the case may be rooted in another point also raised by the record.

Schmidt v. Prince George’s Hosp., 366 Md. 535, 551, 784 A.2d 1112 (2001).

For the reasons we articulated in our previous opinion, the question of the validity of the settlement agreement between the parties was properly presented in the prior appeal. Accordingly, we affirm the enforceability of that agreement because the validity of that agreement constitutes the law of the case.

II. A Promise Never to Sue Will Generally Operate to Discharge Obligations Owed by the Promisee to the Promisor.

Having concluded that the July 7, 2009 settlement agreement is enforceable and binds the parties, we must interpret the terms of that agreement. “Settlement agreements are enforceable as independent contracts, subject to the same general rules of construction that apply to other contracts.” Maslow v. Vanguri, 168 Md.App. 298, 316, 896 A.2d 408 (2006). We begin by observing that the interpretation of a contract is a question of law subject to de novo review. SpaceSaver Sys., Inc. v. Adam, 440 Md. 1, 7, 98 A.3d 264 (2014). Moreover, in Maryland, we employ the objective theory of contracts, under which:

“[A court is to] determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean.”

Id. at 8, 98 A.3d 264 (alteration in original) (quoting Gen. Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306 (1985)). As the Court of Appeals set forth in Gen. Motors Acceptance Corp., and again in SpaceSaver Sys., Inc., we emphasize that our paramount concern as we seek to interpret the parties’ agreement is to objectively determine what a reasonable person in the position of the parties would have intended this agreement to mean at the time it was effectuated.

The settlement agreement in this case aimed to resolve a dispute that arose from Kaye’s representation of WilsonGaskins in her action against GEICO. Wilson-Gaskins was contemplating pursuing a professional negligence claim against Kaye. In consideration for “a reduction in what Kaye would otherwise have been entitled to under [the parties’] retainer agreement,” Wilson-Gaskins agreed to:

[R]elease and forever discharge Kaye ... of and from any and all action, claims and demands including claims or actions for contribution or indemnity of whatever nature now existing or which may hereafter arise out of the legal representation of Wilson[-Gaskins] in regard to Lawsuit including any consequences thereof now existing or which may develop, whether or not such consequences are known or anticipated.

In Wilson-Gaskins’s prior appeal, we held that this agreement operates as a release that discharged any amount to which Kaye may have been liable to Wilson-Gaskins. The question in this case, however, is whether the language in this agreement expresses an affirmative promise by Wilson-Gas-kins not to sue on claims within the scope of the agreement. Kaye contends that the release given by Wilson-Gaskins contains an implied obligation to refrain from suing Kaye. Wilson-Gaskins, on the other hand, avers that her obligation under the contract was discharged at the time the release was effectuated. In order to resolve this inquiry, we must address the distinction between a release and a covenant not to sue.

“Releases are contractual, and they are therefore governed by ordinary contract principles.” Chi Title Ins. Co. v. Lumbermen’s Mut. Cas. Co., 120 Md.App. 538, 548, 707 A.2d 913 (1998). Indeed, “it is well settled that ‘[a] release is to be construed accordingly to the intent of the parties and the object and purpose of the instrument, and that intent will control and limit its operation.’ ” Owens-Ill., Inc. v. Cook, 386 Md. 468, 495, 872 A.2d 969 (2005) (alteration in original) (quoting Shriver v. Carlin & Fulton Co., 155 Md. 51, 64, 141 A. 434 (1928)). Because the nature and scope of a release is defined by, and in accordance with, the intent of the contracting parties as determined from an objective perspective, there is a notable dearth of authority articulating the exact definition of a release. The Court of Appeals has, however, endeavored to define a release generally as “[a] giving up or relinquishment as of a right or claim[,] [t]he giving up or abandoning a claim or right to the person against whom the claim exists or the right is to be exercised or enforced[, or a] surrender of a right.” Whitcomb v. Nat. Exch. Bank of Balt., 123 Md. 612, 615, 616, 91 A. 689 (1914) (internal quotations and citations omitted).

At common law, a release was an action on the part of an obligee to discharge an obligation, and was most relevant in the context of an action by a plaintiff against joint tortfeasors. In the context of joint tortfeasors, the identity of the obligor to whom a release was given was immaterial. Rather, a release was an affirmative act by an obligee to discharge a debt then owed regardless of whom the obligor or obligors may be. See Roe v. Citizens Nat. Bank, 32 Md.App. 1, 5, 358 A.2d 267 (1976) (“[Ujnder the common law, the release of one joint debtor was a release of all.”); Shriver, supra, 155 Md. at 60, 141 A. 434 (“[A] release of a judgment as to one of several joint defendants operated as a release of all.” (citing Booth v. Campbell, 15 Md. 569, 572 (I860))); see also Smith v. State, to Use of Balt. Cnty. Comm’rs, 46 Md. 617, 619 (1877) (“[T]he release of one or more sureties without the assent of the cosureties will operate at law to discharge the latter.” (emphasis omitted)). The concept that a release operates to discharge an obligation rather than an obligor is reflected in the Restatement (Second) of Contracts. The Restatement defines a release as follows:

§ 284. Release

(1) A release is a writing providing that a duty owed to the maker of the release is discharged immediately or on the occurrence of a condition.

(2) The release takes effect on delivery as stated in §§ 101— 03 and, subject to the occurrence of any condition, discharges the duty.

Restatement (Second) of Contracts § 284 (1981).

Critically, a release takes effect immediately. Id. As a consequence, a release immediately discharges any obligation within the scope of the agreement. Id. Accordingly, because a release has the effect of immediately discharging an obligation, the release is tendered at the time the release is given. Therefore, a release cannot be breached because complete performance is tendered at the moment release is effectuated.

In some instances — again, generally in the context of joint tortfeasors — the common law rule that a release had the effect of discharging an obligation rather than an obligor was perceived to apply too harshly when an obligee provided a release with an obvious intent only to discharge one but not all obligors. Shriver, supra, 155 Md. at 61, 141 A. 434. In an effort to “escape the harshness of the common-law rule ... the fiction of a covenant not to sue” was developed to accommodate the circumstance when a plaintiff intended to discharge one, but not all obligors. Id. A covenant “is an agreement duly made to do or not do a particular act and is a contractual obligation.” White v. Pines Cmty. Improvement Ass’n, 173 Md.App. 13, 38, 917 A.2d 1129 (2007), aff'd in part rev’d in part, 403 Md. 13, 939 A.2d 165 (2008). A covenant not to sue, therefore, is a promise to forbear from litigating with respect to an obligation. Critically, while a release addresses the relationship between the obligee and the obligation, the covenant not to sue addresses the relationship between the obligor and the obligee. Accordingly, the covenant not to sue had the practical effect of providing an obligor with immunity against those seeking to enforce the underlying obligation, but the covenant did not actually discharge the underlying obligation with respect to other obligors.

To be sure, contrary to a release, a covenant not to sue did not have the effect of discharging an obligation, but rather the covenant was a promise made by the obligee to refrain from enforcing the obligation. This distinction permitted a plaintiff to reach a settlement with one joint tortfeasor without discharging the obligation with respect to the remaining obligors. This concept is reflected in the Restatement (Second) of Contracts, which defines a contract not to sue as “a contract under which the obligee of a duty promises never to sue the obligor or a third person to enforce the duty or not to do so for a limited time.” Restatement (Second) of Contracts § 285.

The material distinction between a release and a covenant not to sue is that a release is an immediate discharge, and performance is complete at the time the release is effectuated. A covenant not to sue, on the other hand, is a promise for the maker to undertake the future performance of forbearance from litigation. Stated differently, “[discharge by release ... has long been regarded as an executed transaction rather than an executory promise” whereas “a covenant not to sue ... was treated as an executory promise.” Restatement (Second) of Contracts § 295 cmt. a. For this reason, a lawsuit predicated on claims that have been released cannot be actionable as a breach of contract, because a release is a unit of consideration that is tendered — and the obligee’s promise under the contract is discharged — immediately at the time of contracting. A covenant not to sue, however, can generally be breached if performance is not subsequently rendered in accordance with the promise.

An analytical problem arises where, as here, an obligee purports to release obligations which have yet to accrue. For the reasons stated above, a release takes effect immediately. Accordingly, at common law the release of an obligation that had yet to accrue was “anomalous, and, in the view of early lawyers, an impossibility.” 29 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 73:5 (4th ed. 2003 & Supp.2009) (citing Hoe v. Marshall, (1592) 78 Eng. Rep. 823 (K.B.) Cro. Eliz. 580, 823 (“A release of all actions, duties, and demands given to bail, pending the action against the principal cannot be pleaded in bar to a scire facias on the subsequent judgment.”)). Stated differently, it would be ultra vires for one to release (ie., discharge) a right which they have yet to possess. Indeed, comment a to § 284 of the Restatement (Second) of Contracts provides that a release must:

[T]ake effect immediately or on the occurrence of a condition. A promise to discharge in the future an existing duty merely creates a new duty that can itself be discharged by the parties. Such a promise is not a release. The duty that is released need not be matured. A purported release of a duty that does not yet exist, however, is not a release but a promise to discharge a duty in the future____

Restatement (Second) of Contracts § 284 cmt. a.

Therefore, under the common law a release in anticipation of an obligation that had yet to accrue was not actually a release, but rather a covenant never to sue. Modern commentary, however, suggests that this problem should be resolved by interpreting such an arrangement as a covenant never to sue, but nevertheless giving the agreement the same effect as a discharge. See Restatement (Second) of Contracts § 285(2) (“[A] contract never to sue discharges the duty.”). This position advances the concept that a release of a future claim is incorrect as a matter of semantics. Nevertheless, this position advocates construing a purported release of a future claim as a discharge because such an interpretation more accurately captures the intent of the parties. Professor Jenkins explains in her treatise that a contract never to sue: Because of its form — a promise by the creditor — it may appear that the parties intended to create a duty in the creditor, rather than to discharge an existing duty in the debtor. In spite of its promissory form, a contract never to sue indicates an intention to discharge the obligor in any case not involving a joint obligor, and the parties are held to have consummated a discharge because of the legal effect of their intent.

Historically, to refuse to give a contract not to sue effect as a discharge resulted in an unnecessary and highly undesirable circuity of action. The creditor would sue the debtor for the enforcement of the original claim; the debtor could at once maintain a counteraction for damages for the breach of the creditor’s promise never to sue. The damages to which the debtor would be entitled in this counteraction would include the amount of the creditor’s recovery in the primary action against the debtor. To avoid such a result, the contract not to sue operated as a release.

13 Sarah Howard Jenkins, Corbin On Contracts: Discharge § 67.14 (Joseph M. Perillo ed., Revised ed. 2003 & Supp.2008). Stated differently:

[W]here one person only is subject to a specific duty, if violation of the contract by suing for the debt and recovering judgment therefor were permitted it would entitle the defendant to bring a cross-action on the promise not to sue in which the precise amount of that judgment would be recovered back. The contract never to sue is therefore automatically enforced by treating the debt as discharged in order to avoid circuity of action.

Restatement (First) of Contracts § 405 cmt. a (1932).

Under the principles expressed by Professor Jenkins and the Restatement (First) of Contracts, although a release cannot discharge obligations which are not yet owed to the obligee, such a release should nevertheless automatically operate to immediately discharge such obligations. This concept is similar to the manner in which title to property passes immediately through a grantor at the precise moment when the grantor acquires title which he has previously purported to convey. See, e.g., Hughes v. Insley, 155 Md.App. 608, 625, 845 A.2d 1 (2003) (quoting Columbian Carbon Co. v. Right, 207 Md. 203, 210, 114 A.2d 28 (1955) (“This principle is based upon the ancient doctrine that such a deed operates upon the after-acquired title by way of estoppel. It has been stated that the title vests by operation of law or by inurement as soon as it is acquired by the grantor, without the need of judicial aid, in order to prevent circuity of action.”)). Similarly, when an obligee purports to release a claim to which she has no right, if the obligee later acquires rights to enforce the claim, the claim will generally be discharged immediately by operation of law upon the obligee’s acquisition of the right.

We are convinced that, in most circumstances, the intent of parties who contract to release unaccrued claims is for those claims to be discharged. We are unpersuaded, however, that we need to adopt the bright-line rule that a covenant never to sue an obligor should always operate only as a release. Indeed, the critical and operative assumption in the proposition that a contract never to sue should operate to discharge future obligations is that “a contract never to sue indicates an intention to discharge the obligor.” Jenkins, supra, § 67.14.

It may be true that in most cases the intent of an agreement to release claims that have yet to accrue is only to provide a discharge of any obligation that may arise. In such a case, the contract damages would equal any recovery the obligee could obtain by violating the covenant not to sue. It is, however, also cognizable that a covenant never to sue could represent a bargain for not only a discharge of the obligor’s liability, but also a promise that the obligor would not later be forced to suffer the indignity of defending against such claims. See, e.g., Maslow, supra, 168 Md.App. at 324-25, 31, 896 A.2d 408 (holding that a high-low settlement agreement in exchange for a promise not to appeal a jury verdict “sought two closely related things: limitation of their exposure risks and finality.”). If the latter intent is expressed, the obligor’s damages for the breach of the covenant never to sue would exceed the obligee’s claim to the obligation to the extent the obligor suffered consequential damages arising from defending against the released claims.

We do not mean to reject the proposition that a covenant never to sue is often the functional equivalent of a discharge. Rather, we merely decline to impose a bright-line rule that may, in some circumstances, undermine an objective understanding of the parties’ intent. Indeed, parties need not employ magic language in a contract in order to include a release, a covenant not to sue, or both. Rather, in construing the parties’ contract, we aim to discern “what a reasonable person in the position of the parties would have meant at the time it was effectuated” to determine whether the parties sought a release, a covenant not to sue, or both. SpaceSaver Sys., Inc., supra, 440 Md. at 8, 98 A.3d 264. Accordingly, in order to avoid circuity of action, when parties agree that an obligee will never pursue a claim, we will give that language the effect of a discharge unless the parties clearly express that they intend for the obligor to recover consequential damages as a result of the obligee’s failure to honor that discharge in their agreement.

III. The Circuit Court Did Not Err in Finding That Wilson-Gaskins’s Obligation Was Discharged Upon the Tender of Her Performance.

In the instant case, the parties disagree as to whether the conduct that gave rise to this litigation arose prior to or after the settlement agreement took effect. In this appeal, we need not opine on whether the obligation, if any, accrued before or after the parties reached their settlement agreement because the obligation here was discharged in either instance. Wilson-Gaskins agreed to “release and forever discharge Kaye.... of and from any and all actions claims and demands ... now existing....” (emphasis added). This language has the effect of releasing and immediately discharging any obligation Kaye may have owed to Wilson-Gaskins. Critically, a breach of contract action is unsustainable based on a violation of this language because Wilson-Gaskins’s performance was complete immediately upon assenting to the agreement.

The language of the agreement also provides, however, that Wilson-Gaskins “does release and forever discharge Kaye ... of and from any and all actions claims and demands ... which may hereafter arise ... or which may develop, whether or not such consequences are known or anticipated.” (emphasis added). Under the common law rule, Wilson-Gaskins could not release claims “which may hereafter arise ... or which may develop” because she could not discharge obligations which were not yet owed to her. This passage, then, must be interpreted as a promise to forever forbear from litigating matters that fall within the agreement’s scope. Although we hold that Wilson-Gaskins’s agreement to release claims which have yet to arise is an executory covenant never to sue, we nevertheless hold that those claims were discharged at the precise moment when the claims became viable.

For the reasons stated in Part II, supra, as between the parties we will generally construe a promise never to sue as a discharge of obligations that later arise and that are within the scope of the agreement. In such an instance, the promise never to sue remains executory in nature. As soon as the obligee’s claim against the obligor becomes viable that claim is discharged automatically as a matter of law. Simultaneously, the obligee’s performance under the covenant never to sue is complete, and the obligee’s obligation is discharged. On the other hand, we will construe a promise never to sue as an ongoing executory promise that can be breached if we can clearly discern from the agreement’s text that the parties intended for the obligor to recover consequential damages resulting from the obligee’s failure to honor that discharge.

The question, then, is whether we can discern from the text of the parties’ agreement an intent that Wilson-Gaskins would be liable for damages resulting from her failure to honor her release. In the parties’ settlement agreement, Wilson-Gas-kins purports to “release and forever discharge” obligations that are either owed to her or may become owed to her. Critically, nowhere in the agreement does Wilson-Gaskins purport to undertake the affirmative obligation to refrain from suing Kaye. Moreover, assuming arguendo, that we could discern from this agreement that Wilson-Gaskins breached a promise never to sue Kaye for claims within the agreement’s scope, we further observe that Kaye made a reciprocal promise to release Wilson-Gaskins from claims “which may hereafter arise out of the legal representation of Wilson[-Gaskins] ... including any consequences thereof now existing or which may develop.” The significance of this fact is that the construction Kaye advocates would give rise to a circuity of action. Indeed, Kaye’s construction would create litigation’s equivalent of an infinity mirror; whereby Wilson-Gaskins’s breach provides Kaye a cause of action that, upon executing, he becomes liable to Wilson-Gaskins for his breach. Indeed, this process would continue in perpetuity.

Our review of the parties’ agreement reveals no indication that Kaye bargained for consequential damages resulting from Wilson-Gaskins’s failure to honor the release she provided. Without a clear expression that Wilson-Gaskins was to be bound by an ongoing promise not to litigate against Kaye, and that Wilson-Gaskins would be liable for the consequential damages resulting from the breach of that promise, we hold that the parties’ covenant never to sue operated as a release and performance was complete upon the consummation of the agreement. As such, Kaye cannot pursue a breach of contract claim when Wilson-Gaskins had executed her release, and thereby completed performance which discharged her obligation under the agreement. We, therefore, hold that the circuit court did not err in granting Wilson-Gaskins’s motion to dismiss Kaye’s breach of contract claim.

JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. APPELLANT TO PAY COSTS.

      . Neither party addressed whether the circuit court’s dismissal of the first two counts of Kaye’s complaint constitutes a final judgment. Nevertheless, to the extent the court’s judgment might be perceived as lacking finality due to Kaye’s voluntary dismissal of count three, we note that the docket entry dismissing counts one and two was made subsequent to the docket entry evincing Kaye’s voluntary dismissal. Accordingly, this case presents no final judgment problem.

      . The issues, as presented by Kaye, are:

        1. Whether a party can be held liable for breach of contract, where that party entered into a settlement agreement that does not contain an explicitly worded covenant not to sue, and then filed suit on claims released by the party in that settlement agreement;
      2. Whether a release of claims through a settlement agreement carries with it the implied obligation not to sue on those same released claims;
      3. Whether the circuit court erred in granting Appellee’s motion to dismiss a claim for breach of contract brought by Appellant, where Appellee had entered into a binding and enforceable settlement agreement, and then filed suit on claims released in that agreement; and
      4. Whether the circuit court abused its discretion in denying the Appellant's motion for partial summary judgment as to Appellee’s liability for breach of contract.

      . The fourth question presented by Kaye addresses whether the circuit court erred in denying his motion for summary judgment. The circuit court — because it granted Wilson-Gaskins’s motion to dismiss — never ruled upon Kaye's motion for summary judgment. Nevertheless, the circuit court’s grant of Wilson-Gaskins’s motion to dismiss — which we affirm — necessarily precludes the relief Kaye sought in his motion for summary judgment.

      . Both parties had several issues that could have been raised on appeal. Instead of appealing, Wilson-Gaskins and GEICO reached a settlement agreement. Pursuant to the agreement, Wilson-Gaskins released her claims against GEICO, and GEICO agreed to pay her the full amount of the verdict, but with a restructuring of the payment schedule.

      . Before the circuit court, Wilson-Gaskins acknowledged that under her settlement with GEICO, she was entitled to the entire amount of the jury verdict. She claimed that she suffered damages, however, because the settlement "allowed GEICO to issue the annuity.” This was apparently material to her because "[Wilson-Gaskins] hated GEICO” and “has a right to not have a further relationship with GEICO.”

      . We justified the basis upon which we reviewed this question for two reasons. First, the trial judge’s decision was unclear as to whether he had based his decision on Wilson-Gaskins failure to make a prima facie case for professional negligence or the release signed by WilsonGaskins. Secondly, we justified our decision to consider the question based on the principle that we may affirm the grant of summary judgment on a ground not relied upon by the circuit court if "the alternative ground is one that the motions judge would have had no discretion to reject.” Dehn Motor Sales, LLC v. Schultz, 212 Md.App. 374, 392 n. 26, 69 A.3d 61 (2013).

      . In his notice of appeal, Kaye purports to challenge the circuit court’s order dismissing his breach of contract claim, and count two of his complaint alleging a breach of the implied covenant of good faith and fair dealing. Initially, "Maryland does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing.” Magnetti v. Univ. of Md., 171 Md.App. 279, 285 n. 3, 909 A.2d 1101 (2006). Rather, the covenant is an implied term of the contract that, if breached, would serve as an alternative theory for maintaining a breach of contract action. Id. Nevertheless, in his reply brief, Kaye assures us that with respect to his allegation that WilsonGaskins breached the covenant of good faith and fair dealing, "he is not seeking to overturn that decision by the Circuit Court.” Accordingly, we do not address whether the circuit court erred in dismissing Kaye’s claim that Wilson-Gaskins breached the covenant of good faith and fair dealing in this appeal.

      . In a letter signed by Wilson-Gaskins on June 17, 2009, the parties agreed that the reduction in Kaye’s attorney’s fees was "significant.” In his complaint, Kaye attests that the consideration he gave for this agreement amounts to approximately $78,997.75. In total, Kaye’s assent to the settlement agreement effectively reduced his contingent fee from 25% to 19.42% of Wilson-Gaskins's recovery in her action against GEICO.

      . An obligor who is jointly and severely liable for an obligation and who is the promisee of a covenant not to sue may nevertheless remain liable to his co-obligors for contribution.

      . The Restatement (Second) of Contracts uses the largely synonymous term "contract not to sue” in lieu of "covenant not to sue” "to avoid any suggestion that it must be under seal." Restatement (Second) of Contracts § 285 cmt. a.

      . Conceivably, a pleading alleging damages arising from released claims may, in some circumstances, be sanctionable under Md. Rule 1-311(c) or Md. Rule 1-341. Moreover, some other cause of action might be actionable in tort for a plaintiff who has been sued on released claims and has suffered sufficient damages that are attributable to a defendant who acts with malice and who initiated the lawsuit without probable cause. See Havilah Real Prop. Serv., LLC v. Early, 216 Md.App. 613, 624-25, 88 A.3d 875 (2014). For our purposes, however, it is sufficient to hold that a release, in the technical sense of the word, can neither be breached nor can it serve as the basis for a breach of contract action.

      . In her brief, Wilson-Gaskins contends that if we construe the parties’ agreement to articulate this latter intent, such a construction is unenforceable because public policy prohibits an agreement that "effectively precluded] any challenge to the validity or scope of a release____” We emphasize that we offer no opinion as to whether a contract made between an attorney and client to release claims and to award damages for subsequent challenges to the release would be unenforceable as a matter of public policy.


author: WILNER, J.

text:
    135 A.3d 909
    Felton R. HOOD, et ux. v. John E. DRISCOLL, III, et al. Substitute Trustees.
    No. 0856,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    April 28, 2016.

      Richard I. Chaifetz, Columbia, MD, for Appellant.
    Robert H. Hillman (Kimberly L. Britt, Samuel I. White, PC, on the brief) Rockville, MD, for Appellee.
    Panel: WOODWARD, LEAHY, ALAN M. WILNER (Retired, Specially Assigned), JJ.
   WILNER, J.

In 2007, appellants executed a note in the amount of $345,000 and, as security for the note, a deed of trust on their home in Harford County. The note called for interest on the loan at the rate of 6.805 percent. Appellants defaulted on their obligations under the note and deed of trust, and, in July 2013, the substitute trustees under the deed of trust instituted foreclosure proceedings in the Circuit Court for Harford County. Appellants were able to forestall a sale of the property for two-and-a-half years, first by requesting mediation, which failed, and then seeking protection from the U.S. Bankruptcy Court, which was partly successful. The Bankruptcy Court discharged them from the underlying debt but permitted the sale to proceed.

The sale was conducted on January 21, 2015. In the Notice of Sale sent to appellants and published in two newspapers of general circulation in the county earlier that month, the trustees stated, as one of the terms of sale, that interest would accrue on any unpaid part of the purchase price at the rate of 6.805 percent — the same rate as provided in the note — from the date of sale to the date of settlement. No objection was made to that provision by appellants prior to the sale. The property was sold to Federal National Mortgage Association, for $490,005, that being the highest bid and the full amount of the debt that had been owed by appellants and discharged in bankruptcy. In his Report of Sale, filed on February 18, 2015, the substitute trustee affirmed that the sale was fairly made and that the property brought a fair price. The purchaser filed the required affidavit that no one was discouraged from bidding.

The seeds of this appeal were planted on March 20, 2015, when appellants filed exceptions to the foreclosure sale. The sole ground raised by them was that the interest rate on the purchase price was “excessive.” With no supporting documentation, but with a request for a hearing, they claimed that “[i]t is well known and public knowledge that the current prevailing interest rate on mortgage loans is in the vicinity of 4 percent and the Court may take judicial notice of this fact under Rule 5 — 201(b) of the Maryland Rules.” They contended that, in the absence of payment terms set in the lien instrument, terms set by the trustee must be reasonable and that it was not reasonable to require the purchaser to pay interest on the purchase price at the rate of 6.805 percent when the prevailing rate for mortgage loans was only about four percent. They urged that “it is quite likely that,” absent the higher rate “the price could have been higher,” and thus “a possibility that there could have been sufficient proceeds to yield some funds to Defendants.”

The substitute trustee responded that (1) there was nothing improper about requiring the purchaser to pay the same rate appellants had agreed to pay, (2) if there was anything improper, it should have been raised in a pre-sale motion to enjoin the sale, (3) it is not a proper ground for exceptions designed to upset a sale, and (4) appellants were not prejudiced in any event, as charging a lesser rate would have reduced the amount paid for the property.

The court held a hearing on the exceptions, which mostly was limited to argument. The one item of evidence was in the form of a stipulation that, if called to testify, an expert retained by appellants would opine that the 6.805 rate “was too high given the current market conditions and that a lower market based rate would yield a higher sale price and perhaps produced more qualified buyers.” The proffer did not include any backup data for that opinion. The court accepted the proffered testimony, not as being persuasive but merely that the expert would so testify. The court listened to argument and, three weeks later, filed a Memorandum Opinion and Order denying the exceptions and ratifying the sale. The court assigned three reasons for ruling as it did: first, that the issues raised by appellants “were not filed in a timely fashion;” second, that those issues “are inappropriately raised at this stage of the proceeding;” and third, assuming that appellants’ challenge to the sale was timely raised, it was legally insufficient to deny the trustee’s request to ratify the sale.

We believe that the court erred in its first two conclusions but not in the third, which is dispositive.

Timeliness; Appropriateness

There are two avenues by which a borrower may challenge a foreclosure sale. One is a motion to dismiss the foreclosure action or stay or enjoin a threatened sale; the other is to file exceptions to a sale that already has occurred. The law regarding when one may or must be used to the exclusion of the other has shifted somewhat during the past eight years, as both the Legislature and the Court of Appeals, in its rule-making capacity, attempted to respond to the disastrous fallout from Wall Street’s inexcusable misadventure. The proper guidance is found in Rules 14-211 and 14-305(d) and in the recent case law interpreting those Rules. Rule 14-211 deals specifically with a motion to stay a sale or dismiss the foreclosure action altogether, both as to when such a motion may be filed and what it must contain. Rule 14 — 305(d) deals with exceptions to the trustee’s or mortgagee’s report of sale, including when they must be filed and, in an exceedingly brief statement, what they must contain. The Rules and the case law complement each other.

Rule 14-211(a)(3) requires that a motion to stay and dismiss must “state with particularity the factual and legal basis of each defense that the moving party has to the validity of the lien or the lien instrument or to the right of the plaintiff to foreclose in the pending action.” (Emphasis added). That describes the function of the motion — to raise a challenge to the foreclosure action itself — not to the manner in which the sale is conducted but to whether there should be a sale at all.

Consistent with that function, Rule 14-211(a)(2)(A) requires that the motion must be filed prior to the sale. It sets forth alternative deadlines, depending on the circumstances. The one applicable here, where a “postfile” mediation was held, is 15 days after the administrative law judge selected to conduct the mediation filed a notice that no agreement had been reached in the mediation. That notice was filed in this case on September 19, 2013, which, subject to seeking an extension pursuant to subsection (a)(2)(C) of the Rule, which was not done, made October 4, 2013 the effective deadline for moving to dismiss the action or enjoin or stay any sale. No such motion was filed in this case, nor could it have been by that deadline, as notice of the sale was not published until January 2015.

Rule 14-305(d), which deals with exceptions to a sale, has a more narrow focus. Exceptions to a sale must set forth, with particularity, alleged irregularities in the sale itself. The court must ratify the sale if convinced that “the sale was fairly and properly made.” The focus of the exceptions is on the conduct of the sale, not whether the trustee had a right to have the property sold.

The case law supports that distinction. Most recently, in Thomas v. Nadel, 427 Md. 441, 445, 48 A.3d 276 (2012), the Court of Appeals confirmed what it had said in Bates v. Cohn, 417 Md. 309, 9 A.3d 846 (2010) and Maddox v. Cohn, 424 Md. 379, 36 A.3d 426 (2012) — that a homeowner/borrower ordinarily “must assert known and ripe defenses to the conduct of a foreclosure sale prior to the sale, rather than in post-sale exceptions.” Thomas, 427 Md. at 445, 48 A.3d 276, quoting from Bates, 417 Md. at 328, 9 A.3d 846. Consistently— harmoniously — with that approach, Bates made clear that Rule 14-305 “is not an open portal through which any and all presale objections may be filed as exceptions, without regard to the nature of the objection or when the operative basis underlying the objection arose and was known to the borrower.” Bates, at 327, 9 A.3d 846 (Emphasis supplied).

This Court expounded on that in Jones v. Rosenberg, 178 Md.App. 54, 69, 940 A.2d 1109 (2008) and Johnson v. Nadel, 217 Md.App. 455, 466, 94 A.3d 149 (2014), giving as examples of the kinds of procedural irregularities properly raised in exceptions under Rule 14 — 305(d) “allegations such as the advertisement of sale was insufficient or misdescribed the property, the creditor committed a fraud by preventing someone from bidding or by chilling the bidding, challenging the price as unconscionable, etc.” See also Fagnani v. Fisher, 418 Md. 371, 15 A.3d 282 (2011); 101 Geneva v. Wynn, 435 Md. 233, 77 A.3d 1064 (2013); Maddox v. Cohn, supra, 424 Md. 379, 399, 36 A.3d 426.

Applying these principles, it is clear, for several reasons, that, without regard to the merits of appellants’ objection, it was permissible to raise it as an exception to the Report of Sale. It was not the kind of objection that properly could be made under Rule 14-211. Appellants were not arguing any defect in the lien or lien instrument, or in the right of the trustee to sell the property. They were not challenging the validity of the note or deed of trust and were not contesting that they had defaulted on the debt or that the secured party or the trustees had failed to comply with a statutory or other legal precondition to proceeding with a foreclosure. Their sole complaint concerned the terms of the sale — something they claimed may have discouraged prospective bidders and thereby depressed the price offered for the property. Their objection fell squarely within the ambit of Rule 14-305(d) and not at all within the purview of Rule 14-211. It was therefore appropriate for them to raise the issue of the interest rate through an exception to the Report of Sale.

Merits of the Exception

Two inter-related principles are relevant in determining the validity of appellants’ exception. First, it is settled law that “there is a presumption that the sale was fairly made and that the antecedent proceedings, if regular on the face of the record, were adequate and proper, and the burden is upon one attacking the sale to prove the contrary.” Burson v. Capps, 440 Md. 828, 342-43, 102 A.3d 353 (2014), quoting from Webster v. Archer, 176 Md. 245, 253, 4 A.2d 434 (1939). The party excepting to the sale has the twin burden of showing that the sale was invalid and that any claimed errors caused prejudice. Burson, at 343, 102 A.3d 353; see also Fagnani v. Fisher, supra, 418 Md. at 384, 15 A.3d 282. In reviewing the trial court’s ruling on exceptions to a sale, we apply a de novo standard of review as to questions of law but do not substitute our judgment for that of the trial court as to findings of fact unless we find them to be clearly erroneous. Burson, at 342, 102 A.3d 353, quoting from Jones v. Rosenberg, supra, 178 Md.App. at 68, 940 A.2d 1109.

Second, trustees have general discretion to determine the manner and terms of a foreclosure sale. 101 Geneva v. Wynn, supra, 435 Md. at 251, 77 A.3d 1064. That discretion, however, is not unlimited. The trustee has a duty “to protect the interest of all concerned persons to the foreclosure sale and to use reasonable diligence in producing the largest revenue possible for the mortgaged property.” Maddox v. Cohn, supra, 424 Md. at 395, 36 A.3d 426, quoting from Pizza v. Walter, 345 Md. 664, 679, 694 A.2d 93 (1997); see also D'Aoust v. Diamond, 424 Md. 549, 580-82, 36 A.3d 941 (2012).

The essence of appellants’ exception was that the trustee violated that duty by requiring a higher-than-market rate of interest on the unpaid purchase price, thereby abusing his discretion in setting the terms of sale. The only prejudice alleged to have resulted from that decision was that “it is quite likely” that, absent the higher rate, the price “could have been” higher. The problem with that assertion is that it is based on pure speculation. Even accepting the proffered testimony of appellants’ expert, no evidence was produced that anyone was dissuaded from bidding on the property by reason of the interest rate set by the trustee or that the successful bidder would have bid more had the rate been lower. Had no exception been filed, the sale could have been ratified and settlement completed within a month or two of the sale. No evidence was presented that the $490,005 bid for the property was an unfair price, much less a price so unfair as to warrant setting aside the sale and requiring the expenditure of additional funds to re-advertise and conduct another sale, without any indication that a higher price would be obtained.

We cannot fault the trial judge for refusing to assume, in the absence of evidence, that the extra 2.8 percent annual interest for that limited period had any effect whatever on the price obtained for the property. Balanced against that speculation is the fact that, had a lower rate been prescribed by the trustee without inducing a higher price, less would have been received for the property. See Busey v. Perkins, 168 Md. 453, 457, 178 A. 254, 256 (1935) (“where the objection is based on inadequacy of price, courts are reluctant to order a resale unless there is some assurance that a better price would result.”) For these reasons, we shall affirm the judgment of the Circuit Court.

JUDGMENT AFFIRMED; APPELLANTS TO PAY THE COSTS.

      . There is a third avenue of relief, directed not at the right to sell the property or to the conduct of the sale itself, but to the allowance or disallowance of expenses of the sale or the distribution of net proceeds. That is done through exceptions to the auditor’s report following ratification of a sale. See Rules 14 — 305(f) and 2-543. No such exceptions were filed in this case.

      . That point was made clear in the 160th Report of the Court's Standing Committee on Rules of Practice and Procedure, which drafted Rule 14-211 for consideration by the Court of Appeals. The Committee advised:
      "The Rule attempts to strike a fair balance by providing borrowers and others with sufficient standing, who have a legitimate defense to the foreclosure, a reasonable and practical opportunity to raise the defense, but not allowing for frivolous motions intended solely to delay the proceeding. Because the only basis for a stay of sale will be a defense to the lien or the action itself, the motion to stay will be treated as a motion to dismiss the foreclosure action.” (Emphasis added).