author: Couch, J.,

text:
    NATIONAL INSTITUTES OF HEALTH FEDERAL CREDIT UNION v. GORDON L. HAWK et al.
    [No. 235,
    September Term, 1980.]

      Decided November 12, 1980.

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

      Robert H. Metz, with whom were Linowes & Blocher, Ronald E. Resh and Resh & Orens on the brief, for appellant.

      Robert H. Levan and Howard J. Thomas, with whom were Levan & Schimel and Bradshaw, Thomas & Yeatman on the brief, for appellees.

      Amicus curiae brief filed for Montgomery County, Maryland, Paul A. McGuckian, County Attorney for Montgomery County, Robert G. Tobin, Jr., Deputy County Attorney for Montgomery County, and A. Katherine Hart, Assistant County Attorney for Montgomery County, on the brief.
   Couch, J.,

delivered the opinion of the Court.

This appeal comes to us from an opinion and order entered by the Circuit Court for Montgomery County on January 22, 1980 affirming the April 4, 1979 decisions of the County Board of Appeals for Montgomery County, Maryland.

The County Board had affirmed the issuance on November 18,1977 of a certificate of use and occupancy to the National Institutes of Health Federal Credit Union (Credit Union) for a building located in Bethesda, Maryland. The County Board also revoked a certificate of final inspection and occupancy that had been issued on August 15, 1978 for the same premises. This appeal followed.

For the reasons set forth, we hold that the Circuit Court for Montgomery County erred in affirming the County Board’s decision concerning the 1977 certificate, but was correct in affirming the County Board’s decision concerning the 1978 certificate.

On appeal the Credit Union and the appellees present a series of questions concerning the application of zoning laws and equitable doctrines. We shall address the questions after having first discussed the crucial issue of jurisdiction which was presented by the amicus curiae, Montgomery County, Maryland, in its brief.

JURISDICTION OF THE COUNTY BOARD

I. Cases A-504 and A-505

Credit Union purchased the property at 9030 Old Georgetown Road, Bethesda, Maryland, in 1977. It is zoned R-60, a designation for single-family residences. The land is improved by a two-story building originally constructed and occupied by the American Speech and Hearing Association pursuant to a special exception granted in 1964 for a scientific society headquarters. Subsequent zoning ordinance amendments changed the status of the site to that of a non-conforming use.

Responding to an inquiry by the Chief of Zoning and Licenses the Montgomery County Attorney, in 1975, indicated that the property’s status would not be affected by its conveyance provided that the nature and character of the property’s use remained substantially the same.

In 1976 when the Credit Union sought to purchase the property, it was informed by the County Attorney that a use and occupancy permit would be issued if the non-conforming use of the facility was not abandoned. The Credit Union then bought the property and obtained the use and occupancy permit on November 18, 1977 for the use of the facility as a "headquarters office.”

No appeal was taken from the issuance of this permit within the time period required by law. The Montgomery County Zoning Ordinance allows certain appeals, and states in pertinent part:

"59-A-4.3 FILING OF APPEALS

(a) Appeals to the board may be made by any person, board, association, corporation, or official allegedly aggrieved by the grant or refusal of a building or use-and-occupancy permit or by any other administrative decision based or claimed to be based, in whole or in part, upon this chapter, including the zoning map.
(e) Except as otherwise specifically provided by statute, any administrative appeal to the board from any action, inaction, decision or order of a department of the Montgomery County Government shall be considered de novo. The Department shall comply with the prehearing submission requirements of Chapter 2A of the Code.”

The applicable provisions of Chapter 2 of the Montgomery County Code, 1972, as amended 1977, provide:

"Sec. 2-112. Powers, duties and functions.

(a) The county board of appeals . ..
(3) Hearing under Building Code. The board shall hear and decide all appeals taken under the Building Code for the Maryland-Washington Regional District, as the same is now in force in the regional district of the county or may hereafter be amended or extended to the entire county; provided, that the authority under the Building Code which is hereby transferred to the board established by this article shall be limited to the hearing and deciding of appeals taken from decisions of the division of construction permits of the department of environmental protection, and all such appeals shall be filed with the board within thirty days after the decision of the department of environmental protection. [Footnotes omitted].”

On February 8, 1978, the Credit Union applied for a building permit from the Department of Environmental Protection (DEP) for "interior renovations” for a "non-residential” use of an "office/bank/professional” facility. The plans submitted with the permit application disclosed extensive alterations including the addition of a bank vault and eight teller windows. Following a review of the application and plans, the Director of DEP issued a building permit to the Credit Union on April 20, 1978. No timely appeal was taken from that action.

Several letters of complaint were written to DEP by area residents beginning with a letter of Gordon Hawk, now appellee, dated May 21,1978. A subsequent letter written by counsel for the appellees requested the Director of DEP to suspend the use and occupancy permit issued on November 11, 1977 to the Credit Union, and to schedule a show cause proceeding to determine the validity of the initial use and occupancy permit approval. On July 27, 1978, the Director denied both requests. This denial was appealed on August 9 and August 10, 1978 by two groups of protestants, now the appellees, to the County Board of Appeals, and designated as cases A-504 and A-505.

On August 31, 1978, a hearing was convened in the two cases before a hearing examiner pursuant to the County Board’s order. It was learned at the hearing that DEP had issued to the Credit Union a certificate of final inspection and occupancy on August 15, 1978. The hearing was continued in order to give the protestants time to also appeal the August 15, 1978 action of DEP. On September 6, 1978, appeals were filed with the County Board protesting the issuance of the final certificate. These cases were designated A-513 and A-514, and were consolidated with the two previous cases.

A public hearing was held on September 29, 1978 concerning the four cases. After reviewing the testimony and visiting the subject property, the hearing examiner submitted an extensive report, dated January 24, 1979. The hearing examiner recommended that the County Board affirm the issuance of the initial use and occupancy permit of November 18,1977, and affirm the subsequent decision of the Director of DEP not to revoke the permit. The examiner also recommended that the County Board reverse the action of DEP in issuing the final certificate on August 15, 1978.

The matter was argued before the County Board, and in an opinion dated April 4, 1979, the Board affirmed the Director’s actions concerning the initial permit, and reversed the actions concerning the final certificate. The County Board directed DEP to revoke the final certificate and issue a replacement certificate consistent with the headquarters office use represented and authorized in November of 1977.

The Credit Union appealed to the Circuit Court for Montgomery County, challenging the County Board’s jurisdiction over the subject of a non-conforming use in the present circumstances, arguing that the DEP was estopped to revoke the certificate, and claiming that the County Board misapplied the law in the case. The circuit court affirmed the decisions of the County Board in all four cases, finding that there were no perceivable errors of law in the standards applied by the County Board, and no lack of jurisdiction in the Board to entertain and hear the various appeals. The circuit court also determined that equitable estoppel could not be applied against the County in the present cases.

On appeal to this Court, Montgomery County, Maryland, amicus curiae, contends that the County Board had no jurisdiction over the appeals designated A-504 and A-505, concerning the issuance of the November 18, 1977 permit. We agree. The County Board should not have heard these appeals and should not have addressed the Director’s issuance of a permit on November 18, 1977, because the thirty-day time limit set forth in Section 2-112 (a) (3) of the Montgomery County Code had already passed before the appeals were filed on August 9 and August 10, 1978. The appellees failed to comply with the procedure for timely appeal, and thus lost their privilege to challenge the initial permit.

The jurisdiction of the County Board over the November 18, 1977 permit was not revived by the Director of DEP’s refusal to revoke the permit. The July 27, 1978 action of the Director, that provoked cases A-504 and A-505, was not an appealable order or decision of the DEP. The hearing examiner recognized this fact and stated in his report:

"The 'decision’ which is the subject of Appeals A-504 and A-505 being that evidenced in the letter of July 27,1978 (Exhibit No. 21 in Case A-505) from the Director of the Department of Environmental Protection is not a final administrative decision, order or determination. It is at most a reiteration or reaffirmation of the final administrative decision or order of the department granting the original Use and Occupancy Certificate on November 18,1977. If this were not the case an inequitable, if not chaotic, condition would exist. All that an appellant would be required to do to preserve a continuing right of appeal would be to maintain a continuing stream of correspondence, dialogue, and requests of the nature pursued by the appellants herein with appropriate departmental authorities even on the most minute issues of contention with the ability to pursue a myriad of appeals ad infinitum. The appeal provisions in the County Code and Zoning Ordinance dealing with administrative proceedings before various County departments and agencies clearly relate in their respective procedure to a point in time when the finality of the review process is conceded and all opportunities to appeal from administrative decisions and orders are clearly specified within prescribed procedures and time limitations. Hartman v. Prince George’s County, 264 Md. 320 [286 A.2d 88] (1972).”

Both the County Board and the circuit court apparently ignored the hearing examiner’s finding, and chose to exercise jurisdiction over the Director’s action. We, however, hold that cases A-504 and A-505 should have been dismissed as recommended by the hearing examiner. Dismissal is required by this Court when a lower court or agency lacked jurisdiction to hear a zoning appeal. Hope v. Baltimore County, 44 Md. App. 481, 409 A.2d 753 (1980), aff'd 288 Md. 656, 421 A.2d 576 (1980).

An appeal requires authorization by statute regardless of the persons or agencies involved in the controversy. Montgomery County v. One Park North Associates, 275 Md. 193, 338 A.2d 892 (1975); City of Annapolis v. Hartge, 38 Md. App. 629, 635, 382 A.2d 345 (1978), cert. den., 282 Md. 731 (1978). Consequently, where a specific remedy and procedure for appeal are provided by statute, they must scrupulously be followed. Baranski v. Prince George’s County, 41 Md. App. 443, 450, 397 A.2d 265 (1979).

The specific remedy for an alleged improper issuance of a use and occupancy certificate, described in the Montgomery County Zoning Ordinance, is the filing of an appeal with the County Board within thirty days after the certificate has been issued. Any appellate review of cases A-504 and A-505 would circumvent the statutory limitation of action. The issuance of the certificate on November 18,1977 may not be challenged because of the delay in raising the matter for appeal. Badian v. Hickey, 228 Md. 334, 179 A.2d 873 (1962). Likewise, the Director’s action of July 27, 1978 may not be challenged because an administrative decision concerning reconsideration of zoning is not an appealable final order. Kay Construction Co. v. County Council, 227 Md. 479, 490, 177 A.2d 694 (1962).

Therefore, cases A-504 and A-505 required dismissal for lack of jurisdiction by the County Board and Circuit Court to hear the cases.

II. Cases A-513 and A-514

The appeals to the County Board in cases A-513 and A-514 concerned the August 15, 1978 issuance of a certificate of final inspection and occupancy. The certificate was issued pursuant to the Montgomery County Code 1972, as amended 1977, which states in pertinent part:

"Sec. 8-28. Certificate of use and occupancy.

(b) Buildings hereafter altered. It shall be unlawful for any person to use or occupy a building hereafter enlarged, extended or altered to change from one use group to another, in whole or in part until a certificate of use and occupancy shall have been issued by the director certifying that the work has been completed in accordance with the provisions of the approved permit; except, that any use or occupancy, which was not discontinued during the work of alteration, shall be discontinued within thirty days after the completion of the alteration unless the required certificate is secured from the director.
(c) Existing buildings. Upon written request from the owner of an existing building, the director shall issue a certificate of use and occupancy; provided, that there are no violations of law or orders of the director pending and it is established after inspection and investigation that the alleged use of the building has heretofore existed. Nothing in this chapter shall require the removal, alteration or abandonment of or prevent the continuance of the use and occupancy of a lawfully existing building, unless such use is deemed to endanger public safety and welfare.
(f) Contents of certifícate. When a building or structure is entitled thereto, the director shall issue a certificate of use and occupancy within ten days after written applications. The certificate shall certify compliance with the provisions of this chapter and the purpose for which the building or structure may be used in its several parts. The certificate of use and occupancy shall specify the use group, the fire grading, the maximum live load on all floors, the occupancy load in the building and all parts thereof and any special stipulations and conditions of the building permit. (1975 L.M.C., ch. 1, § 3.)”

The building permit issued on April 20, 1978 indicated DEP’s approval of the renovation plans for the Credit Union facility. The certificate of August 15, 1978 indicated compliance with that building permit (per subsection (b), supra), continuation of the existing use of the facility (per subsection (c), supra), and approval of the purpose for which the building would be used (per subsection (f), supra).

Both the issuance of the building permit on April 20,1978 and the issuance of the final certificate on August 15, 1978 constituted final decisions from which appeals could be taken within thirty days pursuant to the Zoning Ordinance. The appeals for cases A-513 and A-514 were not filed until September 6, 1978, thus excluding the renovation plans of the April 20,1978 building permit from consideration by the County Board. The various aspects of the August 15, 1978 certificate were within the County Board’s jurisdiction.

At oral argument all parties agreed that the County Board’s scope of review over the August certificate was limited. The appellant, however, believed that the County Board "absolutely” was limited to determining whether or not the specifications of the approved building permit were followed. Citing Logan v. Town of Somerset, 271 Md. 42, 53, 314 A.2d 436 (1974), the appellant argued that the certificate of August 15, 1978 had the narrow function of showing that the appellant’s construction work complied with the building permit. Montgomery County, amicus curiae, makes a similar argument in its brief, relying on the language of Section 8-28 (b).

Neither the language of Logan, nor the reference to a single subsection of the County Code is persuasive authority in the present case. Logan is distinguishable because the zoning ordinance interpreted in that case was subsequently deleted from the Montgomery County Code. Code 1972, as amended, Table of Disposition. Moreover, in Logan, the Court of Appeals addressed the merits of a zoning dispute and found that a certificate of occupancy would not validate an unauthorized use in an R-60 zone. In the present case, however, the appellant would have the reviewing courts refrain from examining the merits of the case. We prefer not to so limit our review.

In the language of the present Montgomery County Code, Section 8-28, we find authority for the County Board and the courts to review more than just the certificate’s function of showing approval of completed renovations. The County Board and the courts may consider on appeal whether DEP erroneously validated a renovated facility’s subsequent use and purpose. This broader scope of review clearly is provided for by subsections (c) and (f) of Section 8-28.

The County Board had jurisdiction to consider cases A-513 and A-514. The proposed use of the facility, as an issue examined by DEP in the certification process, could properly be challenged in those cases. The appellees’ challenge of the use of the Credit Union facility was brought to the County Board within the thirty-day time limit. Thus their appeal was not affected by those Court of Appeals decisions prohibiting appeals of subsequent agency actions to reach back to the merits of an original action. See Nutter v. Mayor and City Council of Baltimore, 230 Md. 6, 185 A.2d 360 (1962).

ZONING — EXTENSION OF USE

In his opinion and order the trial judge stated:

"After a thorough review of the extensive record in the case, including the testimony, exhibits, the examiner’s findings, the Board’s decision, and the extensive briefs of both sides, the Court is satisfied that the use proposed by the Credit Union of the premises at 9030 Old Georgetown Road, is in fact, and law, an extension and not an intensification of the non-conforming use authorized by the County in November of 1977. Even if the Court were not so convinced after its review, there is in the record ample evidence to support the conclusion of the Board of Appeals in this regard, and since the Court cannot simply substitute its views for that of the responsible administrative agency, the decision must be affirmed as fairly debatable and supported by substantial evidence.”

From our own examination of the record we agree with the circuit court, and we affirm its decision to order revocation of the August 15, 1978 certificate of final inspection and occupancy.

Maryland case law permits continuing a non-conforming use, but does not permit the transmogrification of an approved non-conforming use into a new and different use. The latter constitutes an unlawful extension, even if there is no outward change in the appearance of the facility being used. Wilson v. Mayor and Commissioner of Elkton, 35 Md. App. 417, 371 A.2d 443 (1977).

The hearing examiner and the County Board determined that the original non-conforming use of the scientific headquarters was unlawfully extended by the Credit Union to the extent that the appellant conducted "financial transaction activity on the subject premises.” The Credit Union did not adequately show that the renovations approved by the certificate of August 15, 1978 "were or should have been necessarily incident to the use of the premises by the prior user of the non-conforming use.”

EQUITABLE ESTOPPEL

The appellant recites in its brief a list of the various approvals of permits and applications which it received during the renovation of the facility. From this recitation the Credit Union argues that its good faith is established, and that it justifiably relied upon the actions of the Montgomery County agencies, thus estopping the County Board from revoking the August 15, 1978 certificate.

We disagree. The Circuit Court correctly held that, despite narrow exceptions, estoppel cannot successfully be invoked against municipal authorities based on zoning actions. Lipsitz v. Parr, 164 Md. 222, 164 A. 743 (1933); Hagerstown v. Long Meadow Shopping Center, 264 Md. 481, 287 A.2d 242 (1972). The record of the appellant’s gradual revealing of the use of the facility suggests a "close to the vest” attitude toward the community in which the facility is located and raises questions of the Credit Union’s claim of good faith.

We also think that the appellant has not proven the required elements of estoppel, even against a private party. There is doubt that substantial loss would result from the revocation of the August 15, 1978 certificate. See Harris Used Car Company v. Anne Arundel County, 257 Md. 412, 263 A.2d 520 (1970).

Judgments in cases A-504 and A-505 reversed and case remanded to circuit court with instructions to dismiss.

Judgments in cases A-513 and A-514 affirmed.

Costs to be divided one-half to appellant and one-half to appellees.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    MARCIA S. DECKER v. GERALD H. FINK
    [No. 246,
    September Term, 1980.]

      Decided November 12, 1980.

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

      Donald P. McLaughlin, with whom were Powers & McLaughlin on the brief, for appellant.

      William A. Ehrmantraut, with whom were Kenneth

      Armstrong and Donahue, Ehrmantraut & Montedonico, Courtland K. Townsend, Jr., and Mannes, Meyers, Nadoniey, Townsend & O’Brien on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

In April, 1965, Marcia J. Decker, appellant, then age twenty-nine, consulted Dr. Gerald H. Fink, appellee, a practicing psychiatrist, for assistance for certain mental and emotional problems she was then experiencing. The appellant commenced a course of psychotherapy treatments which required weekly fifty minute visits to the doctor’s office located in his residence. Appellant subsequently went into psychoanalysis, a more intense form of treatment, which required four visits a week. Treatment consisted of the appellant lying on a couch and relating to the appellee her innermost thoughts, emotions, dreams, desires and conflicts, the objective being to resolve these conflicts through the process of analysis.

On March 7,1977, appellant filed, in the Circuit Court for Montgomery County, a one count declaration against the appellee, claiming medical malpractice and alleging that during the course of psychoanalysis at the doctor’s office he improperly manipulated the analysis for the purpose of engaging in sexual relations with the appellant, and that as a result of the appellee’s actions, the appellant’s mental and emotional condition worsened. The appellee filed a general issue plea and a special plea of limitations. The appellee denied a sexual relationship ever existed between the appellant and himself at any time and contended further that his professional treatment of the appellant terminated in December, 1971.

On January 7, 1980, a jury trial of the case began, and at the close of appellant’s case, appellee moved for a directed verdict on the grounds that the patient-physician relationship terminated in December of 1971, or alternatively, that the appellant knew or reasonably should have known of the appellee’s alleged malpractice before March, 1974. The trial judge granted appellee’s motion for a directed verdict on March 17,1980 finding as a matter of law that the appellant knew or in the exercise of reasonable diligence should have known of the alleged malpractice of the appellee in May of 1973, and that the appellant’s declaration filed in March of 1977 was barred by limitations. It is from this judgment that appellant has filed the instant appeal.

Appellant raises two questions for determination by this appeal:

1. Whether the impairment of appellant’s judgment which she contends resulted from the transference phenomenon during the course of the psychoanalysis by the appellee was sufficient to toll the running of the statute of limitations?

2. Whether the trial court erred in ruling as a matter of law that the appellant knew or in the exercise of reasonable diligence should have known of the alleged malpractice of the appellee in May of 1973, and that the claim of appellant filed in March of 1977 was barred by limitations?

1.

Appellant offered testimony of experts that an essential element of successful psychoanalysis is the creation of a special relationship recognized in the field of psychiatry as the transference phenomenon. That phenomenon, she contends, gives rise to an emotional reaction by the patient to the analyst which produces an ancient and subconscious parent-childlike relationship, as a result of which the patient is freed of the necessity to interact with the analyst on the level of an adult face-to-face relationship, and the patient is thus permitted to focus on her innermost thoughts and feelings which may then become subject to free association and lead to the resolution of the patient’s emotional conflicts. Inherent in the transference neurosis is the development of a strong dependence by the patient upon the analyst and an extraordinary faith and trust in him which may frequently develop into a love relationship and which can deprive the patient of her independent judgment and ability to distinguish the reality of her interaction with the analyst and vice versa. Further, such a phenomenon renders the patient vulnerable and susceptible to the influence and suggestion of the analyst. Appellant testified that after receiving psychotherapy and psychoanalysis from the appellee from April, 1965 to February, 1971, appellee commenced a sexual relationship with her during each and every visit to his office thereafter until the end of the summer of 1975. Early in 1971, appellee suggested that treatment be concluded at the end of that year. Regular treatment was, in fact, terminated at that time. Appellant testified that due to her strong feelings for the appellee and her emotional and psychological dependence on him because of the transference phenomenon, she was in a state of confusion and anxiety which caused her to consult another psychiatrist whom she saw from April to September of 1973. She told the new psychiatrist of the treatment and relationship between the appellee and herself. She was advised not to continue in psychoanalysis with the appellee, and that treatment of that nature could not be beneficial so long as she continued a sexual relationship with the appellee. She was referred to still another psychoanalyst whom she saw three or four times during the summer of 1973 and to whom she also related her experiences with the appellee. She was advised to continue analysis but with a female physician. She continued analysis with the female doctor from September, 1973 until August, 1976. In the meantime, appellant testified, she continued to see the appellee at his office through the summer of 1975 and psychoanalysis and sexual activity continued at the appellee’s office until that time. Appellant stopped treatment with the female physician in August of 1976 and filed suit against the appellee on March 7, 1977.

Maryland Code, Courts and Judicial Proceedings Article, Section 5-101 (1980) provides "a civil action at law shall be filed within three years from the date it accrues....” The statute of limitations as adopted by the Legislature of the State of Maryland reflects what is deemed an adequate period of time in which a "person of ordinary diligence” should bring his action. Walko Corp. v. Burger Chef Systems, Inc., 281 Md. 207, 378 A.2d 1100 (1977). The legislative policy underlying statutes of limitation include the encouragement of promptness in instituting actions, the suppression of stale or fraudulent claims, and most of all, the providing of the elements of fairness to defendants. Judge Levine, quoting from Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct. 1137 (1945), in Walko, supra, said:

Statutes of limitation find their justification in necessity and convenience rather than logic. They represent expedience, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.... They represent a public policy about the privilege to litigate. [281 Md. at 210.]

Statutes of limitation are to be strictly construed, the courts refusing to give such statutes a strained construction to evade their effect. See McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 40 A.2d 313 (1944).

There are exceptions to the general statutory three year limitation period which are contained in Section 5-101 of the Courts and Judicial Proceedings Article. Two exceptions are statutory and are found in Sections 5-201 and 5-203. Section 5-201 states, in pertinent part, as follows:

Persons under a disability.

(a) Extension of time. — When a cause of action subject to a limitation under Subtitle 1 accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed.

The statutory disabilities which toll the statute are infancy or lunacy. Rettaliata v. Sullivan, 208 Md. 617, 119 A.2d 420 (1956). It is generally recognized that a person may be under the legal disability of insanity, or unsoundness of mind, within the meaning of the exception to the statute of limitations, when the disability is of such a nature as to show him unable to manage his business affairs or estate, or to comprehend his legal rights or liabilities. Roberts v. Stith, 383 P.2d 14 (Okla. 1963); Hurd v. County of Alleghany, 39 App. Div. 2d 499, 336 N.Y.S.2d 952 (1972). The term "disability” as used in the applicable Maryland statutes has been held to mean "... the general disability of lunacy or infancy as to the care of property and the safeguarding of rights.” Funk v. Wingert, 134 Md. 523, 527, 107 A. 345 (1919).

In McDonald v. Boslow, 363 F. Supp. 493 (D. Md. 1973), the plaintiff, while confined at the Maryland Patuxent Institution, brought a Civil Rights Act suit against the director of Patuxent and others alleging violation of his constitutional rights, particularly infliction of cruel and unusual punishment in the nature of beatings and denial of medical attention. The court, applying Maryland law in granting the defendant’s motion to dismiss, held that commitment of the plaintiff to Patuxent Institution did not constitute an adjudication of non compos sufficient to toll the statute of limitations. The court in analyzing the disability exception to the statute' of limitations stated:

In short, the purpose . . . behind Art. 57, Section 2 [Section 5-201 of the Courts Article] is, the protection of those who suffer from a debilitating incapacity to such an extent as to render them incapable of caring for themselves or their property, and as to render their assent to a contract nugatory. It is to that class of individuals to which the benefit of a tolling of the statute of limitations was addressed, i.e., that group of individuals whose cognitive functioning was so severely impaired as to render them incapable of husbanding a presently existing, known right. [363 F. Supp. at 496.]

Appellant seeks to have this Court add the category of "impaired judgment” to the list of disabilities which will toll the running of the statute of limitations. She offers no authority for that proposition, nor have we been able to find such authority. Even if there were such authority, the factual testimony of the three psychiatrists who treated the appellant during 1973 does not support her contention that she was the victim of impaired judgment which prevented her from realizing that she had a malpractice action against the appellee. Dr. Gross testified that when he saw the appellant she was not psychotic, not hallucinating, but could make decisions. In his professional analysis of the appellant’s mental condition, he said:

Q. Now, when she came to you, as I understand it, there was no disassociation, no lack of touch with reality and she was able to make decisions on her own, is that correct?
A. Yes, basically.
Q. I don’t want to be just qualified by your term basically. Isn’t this what you testified to in your deposition on page 5: "what about
decision-making? Was she able to in your opinion, able to make decisions regarding her own welfare, her interests, and things of that nature?” and your answer was "yes.” Wasn’t that your testimony at. that time?
A. I presume it was.
Q. You had mentioned on direct examination that you performed a mental status exam, is that correct?
A. Yes.
Q. And let me correct — you can correct me if I’m wrong, but your mental status exam, as I understand your testimony, indicated she had no delusions, no hallucinations, that she could relate with people well or good I think was your expression, that she was in touch with reality, could make decisions. Is there anything else you want to add to that?
A. No.

The record extract discloses that essentially similar testimony as to the appellant’s medical and mental condition was given by the other two psychiatrists who saw and treated the appellant in 1973. Appellant’s impaired judgment, if it existed, is not sufficient legal justification for failing to file her medical malpractice claim against the appellee within the time allowed by the statute of limitations.

2.

Section 5-203 of the Courts Article provides for an exception to the general statutory period in those instances where a party is kept in ignorance of a cause of action by the fraud of an adverse party. That exception is not applicable in this case, and we shall therefore not discuss the legal principles governing those circumstances.

The Court of Appeals enunciated an exception to the strict construction of the limitation statute in the medical malpractice case of Hahn v. Claybrook, 130 Md. 149, 100 A. 83 (1917). In that case, the Court adopted the "discovery test” which provides that the statute begins to run from the time of the discovery of the alleged injury or when it should have been discovered by the exercise of due diligence. The discovery exception has been frequently applied in medical malpractice cases in this State since that time. The rule is that when there is a continuing course of treatment the statute does not begin to run until the treatment is terminated. A corollary to this rule is that, if during the course of treatment, the patient learns or should reasonably have learned of the injury sustained by the patient then the statute runs from the time of knowledge actual or constructive. Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966); Jones v. Sugar, 18 Md. App. 99, 305 A.2d 219 (1973). As we stated in Jones,

There is no doubt but that in medical malpractice cases in this jurisdiction, the limitation period starts to run when the patient discovers, or by reasonable diligence should have discovered, the negligent act which caused his injury, or in other words that he may have the basis for an actionable claim, whether or not there is a continuing course of treatment. [18 Md. App. at 105.]

There is no statutory definition of when a medical malpractice cause of action accrues, and in the absence of such a definition thé resolution of that question is left to judicial determination. Goldstein v. Potomac Electric Power Co., 285 Md. 673, 404 A.2d 1064 (1979); Harig v. Johns Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978); James v. Weisheit, 279 Md. 41, 367 A.2d 482 (1977).

In Jones, supra, we cited the philosophy which required the establishment of the discovery rule and the role of the trial judge in applying the rule. Quoting from Lopez v. Sawyer, 62 N.J. 267, 271, 300 A.2d 563 (1973), we said:

The discovery rule is essentially a rule of equity. It has been said that in equity lies its genesis. [Citation omitted.] Like so many other equitable doctrines it has appeared and is developing as a means of mitigating the often harsh and unjust results which flow from a rigid and automatic adherence to a strict rule of law. On the face of it, it seems inequitable that an injured person, unaware that he has a cause of action, should be denied his day in court solely because of his ignorance, if he is otherwise blameless.. ..
It may also be unjust, however, to compel a person to defend a lawsuit long after the alleged injury has occurred, when memories have faded, witnesses have died, and evidence has been lost. After all, statutes of limitation are statutes of repose and the principal consideration underlying their enactment is one of fairness to the defendant. [Citation omitted.] So in each case the equitable claims of opposing parties must be identified, evaluated and weighed. Where, as is often the case, they cannot be wholly reconciled, a just accommodation must be reached. We think this can better be done by a judge than a jury. [18 Md. App. at 105-06, n. 4.]

Appellant contends the law governing the granting of a motion for directed verdict to be from Campbell v. Jenifer, 222 Md. 106, 159 A.2d 353 (1960):

[The] Court must . . . resolve all conflicts in the evidence in favor of the plaintiff and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the plaintiff to recover. Or, as it is often stated the evidence must be considered in the light most favorable to the plaintiff. [222 Md. at 110.]

Generally that would suffice; however, in Moy v. Bell, 46 Md. App. 364, 368-69, 416 A.2d 289 (1980), we pointed to an added dimension when such motion is predicated upon a purely legal question (such as limitations) which would end the case if, from the plaintiffs own case, that issue is found factually to apply. In such instance the judge becomes the factfinder for purposes of determining the applicability of the statute of limitations and we may not set aside his factual findings unless he was clearly in error. Id. at 369; Md. Rule 1086. Applying that standard, there was evidence before the trial court to establish that in May, 1973 the appellant knew or should have known that the appellee’s alleged treatment of her and his alleged sexual involvement with her was grossly unprofessional, improper, and harmful to her mental and emotional well being. Appellant admitted that, she was so advised at the time she discussed her situation with each of the three psychiatrists with whom she met. The psychiatrist who treated her from April until September of 1973 testified that he informed her in May of 1973 that a sexual relationship with the appellee was inappropriate conduct, that she should not continue seeing the appellee, and that she should terminate the relationship. He stated that in his opinion such conduct on the part of the appellee, if it occurred, was a violation of medical standards. When asked if the appellant was able to understand the ramifications of continuing the relationship and his advice to terminate it, he testified that appellant understood and appreciated what he was saying.

The trial judge had evidence before him that the appellant knew or should have known in May of 1973 that the alleged sexual relationship between appellee and appellant was inappropriate medical conduct and was detrimental to her mental health and well being. Once this was established, there was no legal excuse for her failure to enter her medical malpractice action against the appellee until ten months beyond the expiration of the three year limitation period.

Judgment affirmed, costs to be paid by appellant.

      . United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352 (1980).


author: Gilbert, C. J.,

text:
    ROBERT EDWARD LEE v. STATE OF MARYLAND
    [No. 249,
    September Term, 1980.]

      Decided November 13, 1980.

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

      Philip H. Armstrong, with whom were Robert C. Heeney, Mark R. Thompson and Heeney, Armstrong & Heeney on the brief, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L.

      Sonner, State’s Attorney for Montgomery County, and Jimmy Hill, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The appellant, Robert Edward Lee, was convicted by a jury in the Circuit Court for Montgomery County of various violations of the Maryland Controlled Dangerous Substances Act. See Md. Ann. Code art. 27, §§ 276-303 (1976 Repl. Vol.). Following conviction, Lee was sentenced to a period of 15 years incarceration, but a sentence review panel reduced the time to be served to five years.

Lee has appealed to this Court where he advances a pentad of reasons why the judgment of the circuit court should be reversed. Because we hold that the trial court erred in refusing to grant appellant’s motion to suppress physical evidence, we find it unnecessary to consider the other four issues raised.

We set forth briefly the factual situation from which this matter arose.

From the record it is apparent that Officer Michael Garvey of the Montgomery County Police Department applied for and obtained a search warrant on December 19, 1978 for the premises known as Apartment 9, 12309 Braxfield Court, Rockville, Maryland. Lee was apprehended in that particular apartment on that same date when the warrant was executed at 9:10 a.m.

As a result of the search, the police seized in the premises approximately 33V2 pounds of marijuana, 510 methaquadone tablets, 742 capsules of amphetamine, a scale, miscellaneous personal papers belonging to Lee, $7,266 in United States currency, of which $1,415 were in Lee’s pocket, a quantity of glass vials, two cutting boards, plastic "baggies,” and other paraphernalia.

Prior to trial, Lee moved to suppress the evidence for want of probable cause in the issuance of the warrant. Additionally, Lee asked for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The court heard argument on both motions and denied them.

When the matter went to trial before the judge who issued the warrant, Lee, through his counsel, asked the court to rehear the motion to suppress the evidence. The rehearing was denied.

Lee contends that the application for the warrant shows on its face that the information relied upon by the issuing judge was stale and did not establish probable cause. We agree.

In Peterson v. State, 281 Md. 309, 379 A.2d 164 (1977), cert. denied, 435 U.S. 945 (1978), the Court of Appeals addressed the issue, for the first time, of stale probable cause. Judge Orth, writing for the Court, summarized the rules governing probable cause in the issuance of a search warrant. He quoted from State v. Edwards, 266 Md. 515, 518-19, 295 A.2d 465, 466-67 (1972), where it said:

"The finding of 'probable cause,’ while demanding more than mere suspicion, Draper v. U.S., 358 U.S. 307, 311-12, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), requires less evidence than would justify conviction, Locke v. U.S., 7 Cranch 339, 348, 3 L. Ed. 364 (1813), and less than would justify an officer in making a search without a warrant, Johnson v. U.S., 333 U.S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436 (1948). The evidence itself need not be legally competent in a criminal trial, Draper v. U.S., supra, 358 U.S. at 311, and may in fact be hearsay, Jones v. U.S., 362 U.S. 257, 272, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), so long as the judicial officer issuing the warrant is informed of some underlying circumstances supporting the affiant’s conclusions and his belief that any informant involved was credible or his information reliable, Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and such judicial officer is entitled to draw reasonable inferences from the facts contained in the affidavit based on his experience in such matters. Irby v. U.S., 114 U.S. App. D.C. 246, 314 F.2d 251, 253 (1963), cert. denied, 374 U.S. 842 (1963).” Peterson v. State, supra at 313, 379 A.2d at 166.

Judge Orth, for the Peterson Court, went on to declare:

"Our concern in determining whether a warrant necessary to the reasonableness of a search and seizure has been issued upon an affidavit supporting probable cause is only with the question '"whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet [sic] and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.” ’ State v. Edwards, 266 Md. at 519, quoting Dumbra v. United States, 268 U.S. 435, 441, 45 S. Ct. 546 (1925). It follows that if the facts set out in the affidavit are 'stale,’ the affiant would not have reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched. The question is what constitutes 'stale probable cause.’ ” (Emphasis supplied.) Id. at 313-14, 379 A.2d at 166-67.

The Peterson Court adopted the rule regarding stale probable cause as stated in Garza v. State, 120 Tex. Crim. 147, 149, 48 S.W.2d 625, 626 (1932), which "properly states the law and embodies the holdings of the Court of Special Appeals,[] the more persuasive teachings of the courts in other jurisdictions, and the general opinions of text writers and commentators.” Peterson v. State, supra at 315, 379 A.2d at 167. The Texas Court articulated the rule as follows:

"The affidavit for a search warrant on probable cause, based on information and belief, should in some manner, by averment of date or otherwise, show that the event or circumstance constituting probable cause, occurred at the time not so remote from the date of the affidavit as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made.” Garza v. State, supra at 149, 48 S.W.2d at 626.

In the instant case, the warrant was issued, as we have said, on December 19, 1978. The affidavit in support of the warrant contains 24 numbered items. A careful review of its contents shows that many of the statements made by the affiant are merely conclusory, and although several different informants are relied upon by the affiant, only one was properly established as a reliable source.

Items one (1) through five (5), seven (7), nine (9), eleven (11), twelve (12), and fifteen (15) relate information received by various anonymous persons. No attempt was made, however, to establish that those persons were credible or reliable sources. Singularly, item 10 relates information received by affiant from an informant whose reliability is adequately established. See Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The affidavit in pertinent part stated:

"10. On January 26, 1978, Cpl. R. Ricucci, Montgomery County Department of Police, Vice-Narcotic Division, received information from a confidential reliable informant. The confidential reliable informant will be referred to as Confidential Reliable Informant #2. Confidential Reliable Informant #2 told Cpl. Ricucci that he had been in Robert Lee’s apartment during the week of January 12, 1978 and had observed in the apartment three ounces of cocaine, $1,000.00 worth of Quaaludes, 1,000 Black Beauties and 10 lbs. of Marihuana. Confidential Reliable Informant #2 stated that Robert Lee makes trips to Florida to obtain drugs. Confidential Reliable Informant #2 has in the past supplied information which was [sic] been reliable to the Narcotic Section of the Vice-Narcotic Division of the Montgomery County Department of Police.
A) Between November of 1976 and December of 1976, Confidential Reliable Informant #2 provided information which led to the execution of a search warrant and the seizure of a large quantity of pharmaceutical drugs along with two arrests which resulted in convictions in the Circuit Court for Montgomery County, Maryland.
B) Between December 1976 and January 1977, this Confidential. Reliable Informant #2 provided information which led to the arrest of one adult for burglary in Montgomery County and the recovery of stolen property.
C) Between May 1976 and June 1976, this Confidential Reliable Informant #2 set up a buy-bust arrest which resulted in the seizure of nineteen (19) pounds of marihuana and a conviction of the subject in the Circuit Court for Montgomery County, Maryland.
D) In February of 1976, this Confidential Reliable Informant #2 provided information which led to the arrest of a subject wanted for Distribution of Heroin by the Montgomery County Department of Police.
E) In July of 1977, this Confidential Reliable Informant #2 set up a buy-bust arrest of a subject which resulted in the seizure of twenty-five (25) pounds of marihuana.
F) In July of 1977, this Confidential Reliable Informant #2 provided information which led to the arrest of a subject wanted for daytime housebreaking and forgery.
G) In February of 1978, this Confidential Reliable Informant #2 provided information which led to the arrest of a subject wanted for Assault with Intent to Murder and Escape in Montgomery County, Maryland.
H) During the month of January 1978, this Confidential Reliable Informant #2 provided information which led to the execution of a search warrant and a seizure of a quantity of controlled dangerous substance along with one arrest which resulted in a conviction in the Circuit Court for Montgomery County, Maryland.”

The quoted passages would be sufficient to establish probable cause, notwithstanding the inadequacy of the information supplied in the affidavit as obtained from other sources. Johnson v. State, 14 Md. App. 721, 725, 288 A.2d 622, 625, cert. denied, 266 Md. 738, cert. denied, 409 U.S. 1039 (1972). The remoteness of the informant’s observations as disclosed in the affidavit, however, leads us to conclude that the information was stale.

The informant allegedly observed the unlawful drugs in Lee’s apartment during the week of January 12, 1978. The warrant was issued on December 19, 1978, eleven months later. There are no facts asserted to indicate any continuing activity between January and December of 1978 which would link the appellant to illegal drugs. It has been held that "where the affidavit recites facts indicating activity of a protracted and continuoús nature, or a course of conduct, the passage of time becomes less significant, so as not to vitiate the warrant. . . .” (Citations omitted.) See Peterson v. State, supra at 317-18, 379 A.2d at 168-69. No such facts are presented in the affidavit utilized in the matter now before us.

Items thirteen (13) through twenty-three (23) of the affidavit primarily concern observations made by the affiant through surveillance of the appellant’s residence. The officer said:

"13. On August 21, 1978 at approximately 8:50 P.M., your affiant was on surveillance at 12309 Braxfield Court. At approximately 9:15 P.M., your affiant observed a brown Mercedes with 1979 Maryland registration DZL 459 driven by a w/m with shoulder length brown hair, dark T-shirt, also a w/f with dark hair was observed in the vehicle. Your affiant observed both subjects go to the door of Robert Edward Lee and knock. All the lights came on inside of R.E. Lee’s apartment. Both subjects were admitted into R.E. Lee’s residence.
On August 21, 1978 at approximately 9:40 P.M., your affiant observed both subjects exit R.E. Lee’s residence and enter the Mercedes and leave the parking lot. At this time, the lights in R.E. Lee’s living room went out.
14. According to Maryland Motor Vehicle Administration, Maryland registration DZL 459 is listed to Philip Edward Bourne, W/M, DOB 12/08/50 of 10 Schindler Court, Silver Spring, Montgomery County, Maryland on a 1969 Mercedes.
15. On February 6, 1975, Cpl. Ricucci, Vice-Narcotic Division, Montgomery County Department of Police spoke with a concerned citizen who stated that Philip E. Bourne had a lab in Ocean City, Maryland where Bourne was making pure Phencyclidine (PCP), a controlled dangerous substance of Schedule II. This concerned citizen will be referred to as Concerned Citizen #3. Concerned Citizen #3 felt that Bourne was possibly making the Phencyclidine (PCP) at 10 Schindler Court, Silver Spring, Montgomery County, Maryland.
16. On November 13, 1978, your affiant was on a surveillance at 12309 Braxfield Court and at approximately 2005 hours, your affiant observed a Cadillac Eldorado convertible displaying Maryland registration FZW 902 drive into the parking lot and back into a vacant parking space. The vehicle was occupied by three white males. One of the white males exited the vehicle and went to the door of Robert Lee’s apartment. The w/m was admitted into the residence. At 2015 hours, the white male was observed exiting the apartment. The white male went to and entered the Cadillac Eldorado then left the parking lot. According to the Maryland Motor Vehicle Administration, Maryland registration FZW 902 is listed to a 1964 Volkswagon to Gregory Mark Hall, W/M, DOB 10/09/60, 540 Palisades Drive, Crownsville, Anne Arundel County, Maryland.
At 2020 hours a white female was observed exiting Robert Lee’s apartment. This white female got into a vehicle which was displaying Maryland registration CVL 490. According to the Maryland Motor Vehicle Administration, Maryland registration CVL 490 is not a listed tag. As the white female was getting into her vehicle, Robert Lee was observed looking out his balcony window.
17. On November 14, 1978 at approximately 8:25 P.M., your affiant was on surveillance at 12309 Braxfield Court and observed R.E. Lee come out of his residence and go to his vehicle. Your affiant observed R.E. Lee put something into his front pocket. R.E. Lee then went back into his residence.
On November 14, 1978 at approximately 8:30 P.M., your affiant observed an unknown W/F knock on R.E. Lee’s apartment door. Lee was observed through the open drapes on the patio admitting the w/f. R.E. Lee and the w/f then walked to the rear of the apartment.
On November 14,1978 at approximately 8:35 P.M., your affiant observed an unknown W/M knock on R.E. Lee’s door. R.E. Lee was observed through the patio window to go to the door and admit the W/M. R.E. Lee and the W/M walked to the rear of the apartment. The W/F was still inside R.E. Lee’s residence.
On November 14,1978 at approximately 8:45 P.M., your affiant observed the W/M exit R.E. Lee’s residence. The W/M had shoulder length light hair. The W/M was driving a Ford Ranchero with a small camper top, mag wheels, with Maryland registration N 50636.
According to the Maryland Motor Vehicle Administration, Maryland registration N 50636 is listed to Philip Edward Bourne, W/M, DOB 12/08/50 of 10 Schindler Court, Silver Spring, Montgomery County, Maryland.
On November 14,1978 at approximately 9:00 P.M., your affiant observed the W/F exit R.E. Lee’s apartment and get into a green Chevy Nova with a black top with damage to the right front fender with Maryland registration GFP 265.
According to Maryland Motor Vehicle Administration, Maryland registration GFP 265 is listed to Robert Edward Bastian, W/M, DOB 05/30/49 of 12309 Braxfield Court, #1, Rockville, Montgomery County, Maryland.
On November 14,1978 at approximately 9:19 P.M., your affiant observed R.E. Lee come out onto his balcony and look around and go back inside residence.
On November 14,1978 at approximately 9:35 P.M., your affiant observed a gray van operated by a W/M drive to the side of Braxfield Court Apartments. Your affiant then observed a W/F exit the gray Van and walk across the parking lot and enter Lee’s apartment. R.E. Lee and the W/F walked to the rear of R.E. Lee’s apartment.
On November 14,1978 at approximately 9:50 P.M., your affiant observed R.E. Lee and the W/F walk to Lee’s door. The W/F exited Lee’s apartment and walked across the parking lot toward the gray van holding her stomach as if she was hiding something up her shirt. The W/F was observed to walk to the van and get in. Maryland registation on Van was N 12819.
According to Maryland Motor Vehicle Administation, Maryland registration N 12819 is listed to Wiser Electric Co. of 16771 Oakmont Avenue, Gaithersburg, Maryland.
18. On December 8, 1978, Off. J.R. Hock, Jr., Montgomery County Department of Police, acting in an undercover capacity, met a w/f, 20-22 years named Fran for the purpose of purchasing a quantity of Quaaludes. Off. Hock picked Fran up at her residence. Off. J.R. Hock asked Fran if she had the Quaaludes (Methaqualone). She said no that she would have to pick them up. Fran stated that they could get the Quaaludes at one of two places. One place they would be $4.00 per tablet or they could go to Bobs [sic] and if they bought more than ten tablets, they would pay $3.50 per tablet. Fran and Off. J.R. Hock decided to go to Bobs [sic] for the cheaper price. Fran directed Off. J.R. Hock to 12309 Braxfield Court, Rockville, Montgomery County, Maryland. Off. J.R. Hock parked in the parking lot. Off. J.R. Hock handed Fran $40.00 U.S. Currency which had previously been withdrawn from the Montgomery County Department of Police Narcotic Enforcement Fund. Fran then exited Off. J.R. Hock’s vehicle and entered Apt. 9. Approximately three minutes later at 2000 hours, Fran returned to Off. J.R. Hock’s vehicle and stated Bob didn’t have Quaaludes now but he would later. She described Bob as "Screwed Up”. Fran returned the $40.00 to Off. J.R. Hock. Off. J.R. Hock drove Fran to the Citgo Gas Station near the intersection of Veirs Mill Road and Randolph Road and dropped Fran off. Methaqualone is a controlled dangerous substance of Schedule II.
19. On December 11, 1978 at approximately 8:40 P.M., your affiant observed an unknown person, not R.E. Lee, in the rear bedroom of R.E. Lee’s apartment.
On December 11, 1978 at approximately 10:15 P.M., your affiant observed a w/m, long shoulder length hair, beard and pointed hat exit R.E. Lee’s apartment carrying a bottle covered with a paper bag and a brown box with a white label on the outside. The W/M entered a light colored Ford pickup truck, Maryland registration L 69986. Your affiant followed the truck to Quince Orchard Shopping Center located at Cloppers Road, Gaithersburg, Montgomery County, Maryland. Your affiant observed the W/M park in front of Dart Home and exit the vehicle. Your affiant walked by the truck and observed the bottle and brown box sitting on the front seat of the truck. Your affiant then went inside the Dart Home and observed the W/M purchasing two (2) sieves.
Your affiant then drove to 754 Quince Orchard Boulevard, Gaithersburg, Montgomery County, Maryland and observed the truck park in front of the same address. Your affiant observed the driver of the truck run into the apartment building with no bottle or box observed.
20. On December 12, 1978 at approximately 1:00 A.M., your affiant observed the W/M exit 754 Quince Orchard Boulevard, Gaithersburg, Montgomery County, Maryland and enter the truck. The W/M drove to the Londonderry Apartments, Gaithersburg, Montgomery County, Maryland, where the surveillance ended.
According to Maryland Motor Vehicle Administration, Maryland registration L 69986 is listed to John Ogden Zedler, W/M, DOB 01/29/49 of 754 Quince Orchard Boulevard, #202, Gaithersburg, Montgomery County, Maryland.
21. On December 12, 1978 at 2045 hours your affiant observed a vehicle displaying Maryland registration DDP 780 park in the parking lot in front of Lee’s residence. A W/F exited the vehicle and walked to the front door of Lee’s residence. The W/F was then observed inside Lee’s residence talking with Lee.
On December 12, 1978 at 2100 hours the W/F was observed exiting Lee’s residence and entered vehicle displaying Maryland registration DDP 780. The vehicle then left the parking lot.
According to Maryland Motor Vehicle Administration, Maryland registration DDP 780 is listed on a 1975 Chevrolet, to Susan Martha Payne, W/F, 6/18/49, 3927 Isbelle Street, Wheaton, Maryland.
22. On December 13, 1978 at 2000 hours, your affiant was on surveillance at Robert Lee’s apartment and observed a white male with goatee and a white female inside the apartment of Robert Lee. The white female and the white male with a goatee were observed exiting Lee’s apartment. The white male with the goatee was carrying a rolled up brown shopping bag. The white female and the white male with a goatee got into a vehicle displaying Maryland registration CPN 191. According to the Maryland Motor Vehicle Administration, Maryland registration CPN 191 is not a listed tag.
At 2035 hours, your affiant observed a white male exit the apartment carrying a white bag. The white male was observed entering a van with Maryland registration N 12462 and leave the parking lot. According to the Maryland Motor Vehicle Administration, Maryland registration N 12462 is listed on a 1976 Ford Truck to Rose Lena Marcella W/F, DOB 02/01/26, 11200 Lockwood Drive, Silver Spring, Maryland.
At 2054 hours, a white male was observed entering Robert Lee’s apartment. The white male was observed walking to the rear of Lee’s apartment with Lee. At 2110 hours, the white male was observed exiting Lee’s apartment and entering a vehicle displaying Maryland registration CLT 145. According to the Maryland Motor Vehicle Administration, Maryland registration CLT 145 is listed to a 1972 Chevy, Dominick Anthony Binetti, W/M, DOB 05/11/24, 3808 Wexford Road, Kensington, Maryland.
At 2130 hours, a small white female was observed exiting Robert Lee’s apartment. The white female was observed getting into a van displaying Maryland registration M 29126. According to Maryland Motor Vehicle Administration, Maryland registration M 29126 is listed on a 1977 Dodge Truck, to Rita Marie Lynd, W/F, 03/31/58 and Claud David Lynd, W/M 06/07/30, 4700 Olden Road, Rockville, Maryland.
At 2240 hours, a w/m with long dark hair and beard was observed entering Lee’s apartment and walking with Lee to the rear of the apartment. At 2250 hours, Lee was observed with the W/M walking to the front of the apartment. Off. Garvey was outside of Lee’s apartment and observed the W/M walking down the sidewalk in front of Lee’s apartment carrying a dark plastic trash bag which was approximately Vi full. The white male got into a vehicle displaying Maryland registration FJC 637, and left the parking lot.
According to the Maryland Motor Vehicle Administration, Maryland registration FJC 637 is listed on a 1968 Ford, to Arthur Leroy Skipworth, 833 Mill Creek Road, Anne Arundel County, Maryland.
23. On December 18, 1978, your affiant was on surveillance at the residence of Robert Lee and the following observations were made by your affiant and Off. J. Hock.
At 1955 hours, your affiant observed a vehicle displaying Maryland registration EBT 714 park in the parking lot. The vehicle was occupied by two white males and one white female. The W/F exited the vehicle and went into Lee’s apartment.
At 2010 hours, the white female exited the apartment and returned to the vehicle. The vehicle and all occupants then left the parking lot.
According to the Maryland Motor Vehicle Administration, Maryland registration EBT 714 is listed on a 1968 Ford, four door, to David Lee Drazek, W/M, 06/28/56, 9166 Edmonston Rd., #302, Greenbelt, Md.
At 2020 hours all the lights in the residence went out.
At 2025 hours, a white female was observed exiting a van that was driven to the front of Lee’s residence. This van was displaying Maryland registration M 29126. A white female exited the van and entered Lee’s residence. At this time, the lights in Lee’s apartment came on.
At 2030 hours, the white female was observed exiting Lee’s residence and went to the Van with Maryland registration M 29126. Two white females were observed exiting the vehicle and with the first white female went back into Lee’s residence.
At 2050 hours, two white females exited Lee’s residence and entered the van displaying Maryland registration M 29126 and left the parking lot. Maryland registration M 29126 has been previously mentioned.
At 2051 hours, two white females were observed exiting a vehicle parked in front of Lee’s residence displaying Maryland registration EXR 738. These two white females went into Lee’s apartment carrying several packages each. According to the Maryland Motor Vehicle Administration, Maryland registration EXR 738 is listed on a 1976 Volkswagon, two door, to Pamela Shull Miller, W/F, 10/20/56, 9536 Canaberry Riding, Laurel, Maryland.
At 2058 hours, a white male with long dark hair and long dark beard was observed walking up the sidewalk in front of Lee’s residence walking toward the door. This white male was then observed inside Lee’s residence walking to the back of the apartment.
At 2102 hours, the white male with long dark hair and long dark beard was observed leaving Lee’s residence. This white male was observed leaving the parking lot operating a vehicle displaying Maryland registration EZW 664.
According to the Maryland Motor Vehicle Administration, Maryland registration FZW [sic] 664 is listed on a 1974 Volkswagon, two door, to Rudolph Quincy Hines, W/M, 03/13/47, 12209 Dalewood Drive, Wheaton, Maryland.
At 2125 hours, a white male was observed parking a vehicle displaying Maryland registration GSJ 357 in the parking lot in front of Lee’s residence. The white male exited the vehicle and went to the trunk of the vehicle. The white male opened the trunk and removed a large brown cardboard box from the trunk. The white male carried the box to Lee’s apartment. The white male was then observed inside of Lee’s residence.
At 2135 hours, Lee was observed closing the blinds to a window in his residence.
At 2141 hours, the white male was observed exiting Lee’s residence and was carrying nothing. The white male got in the vehicle displaying Maryland registration GSJ 357 and left the parking lot. According to the Maryland Motor Vehicle Administration, Maryland registration GSJ 357 is listed on a 1969 Ford, two door, to Salvatore Francis Vastóla, W/M, 03/13/54, 8209 Greenwood Avenue, Takoma Park, Maryland.
At 2155 hours, a vehicle displaying Maryland registration L 69986 was observed parking in the lot in front of Lee’s residence. A white male long shoulder length hair, beard, wearing a big pointed hat and carrying a rolled up brown paper bag exited the vehicle and walked to door of Lee’s residence. The W/M was then observed inside of Lee’s residence walking to the rear of the residence with Lee.
At 2245 hours, the white male was observed exiting Lee’s residence with a white female, [sic] The white male and the white female got into the vehicle displaying Maryland registration L 69986 and left the parking lot. Maryland registration L 69986 has been previously mentioned.
At 2250 hours, the lights in the residence went out.
On 12/19/78 at 0340 hours Officer Donald Freitag of the Montgomery County Department of Police, Vice and Narcotics Division relieved Officer Hock of his surveillance post at Robert Lee’s residence. Officer Hock advised Officer Freitag that the lights in the residence had been out since 2250 hours and there had been on [sic] one in or out of the apartment.
On 12/19/78 at 0510 hours Officer Freitag observed the lights in Lee’s residence come on. At 0515 hours Officer Freitag observed Robert Lee and a white female exit Lee’s residence. The white female got into Lee’s vehicle displaying Maryland registration 475 ADG, Robert Lee went to the trunk and opened it and appeared to be moving things around in the trunk but he did not place anything in it. Robert Lee then got into his vehicle and left the parking lot.
At 0615 hours Officer Freitag observed Robert Lee’s vehicle enter the parking lot and park his vehicle in the same space he had left at 0515 hours. The white female exited the vehicle and walked toward the front door of Lee’s residence. Robert Lee exited his vehicle and went and opened the trunk. Robert Lee was observed removing what appeared to be three shopping bags with handles and a large green duffel bag. Robert Lee was observed to take these items into his residence. Once inside the residence Robert Lee and the white female were observed walking in a fast pace to the rear of the residence.”

The affiant concluded his narration of the facts of the surveillance with "a list of characteristics which are common during drug trafficking.” He stated:

"[S]everal people arrive in one vehicle, but only one or two persons enter the residence, persons involved in drug trafficking conduct such transactions within short periods of time; before entering a residence used for the purpose of drug trafficking several persons may each give one person money to go into such a residence to purchase controlled dangerous substances. Persons purchasing controlled dangerous substances often park their vehicles not directly in front of a residence used for drug trafficking. Vehicles from different jurisdictions frequent the residence used for the trafficking of controlled dangerous substances. Packages go in and out of residences used for the trafficking of controlled dangerous substances.”

A careful reading of the officer’s recitations of his observations will disclose that the surveillance does not satisfy any of the officer’s stated criteria "common to drug trafficking.” Nothing in those observations, as related by the affiant, indicated that there were unlawful drugs in Lee’s apartment or that Lee was involved in any criminal activities. That the surveillance revealed persons arriving and leaving Lee’s apartment does not support a rational inference that drug sales were taking place at the residence. There is nothing alleged that suggests any unusual activity nor are there facts sufficient to show that any of the persons observed during the surveillance were known users or dealers in the illegal sale of drugs. Moreover, the affiant did not observe any actual purchases or sales of proscribed controlled dangerous substances.

Item eighteen (18) simply tells of an unsuccessful attempt by an informant, whose reliability is not established, to purchase narcotics from the appellant on December 8, 1978. The item alleges that the informant went to Lee’s apartment but could not obtain drugs because Lee did not have them.

Applying the Peterson standards to the affidavit in support of the warrant issued in the instant case leads us to conclude that there were insufficient facts to pass muster on "reasonable grounds” at the time of the making of the affidavit and the issuance of the warrant thereon to believe that Lee’s apartment contained controlled dangerous substances. At best the affiant’s observations do not rise above the level of suspicion. Cuffía v. State, 14 Md. App. 521, 525, 287 A.2d 319, 322 (1972).

The information related by the only informant whose reliability was adequately established was "stale.” The happenings related were so remote in time as to be virtually worthless. That an event occurred in January 1978 does not support a conclusion that it is still happening eleven months later.

In our view, a reasonably prudent person could not determine from the affidavit that Lee’s apartment probably contained contraband on the date the warrant was issued. Because the affidavit in support of the warrant failed to demonstrate probable cause, the warrant itself was invalid and in violation of the Fourth Amendment to the Constitution of the United States. Accordingly, Lee’s motion to suppress the evidence should have been granted.

Judgment reversed and case remanded for a new trial.

Costs to be paid by Montgomery County.

      . Gatling v. State, 38 Md. App. 255, 380 A.2d 654 (1977), cert. denied, 282 Md. 732 (1978); Andresen v. State, 24 Md. App. 128, 331 A.2d 78, cert. denied, 274 Md. 725 (1975), aff'd, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976); Washburn v. State, 19 Md. App. 187, 310 A.2d 176 (1973); Johnson v. State, 14 Md. App. 721, 288 A.2d 622, cert. denied, 266 Md. 738, cert. denied, 409 U.S. 1039 (1972); Clayton v. State, 1 Md. App. 500, 231 A.2d 717 (1967).


author: Moylan, J.,

text:
    IN RE: DARIUS A., PERSEPHONE A. and GERMAINE A.
    [No. 259,
    September Term, 1980.]

      Decided November 13, 1980.

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

      Alan M. Wright, Assistant County Attorney for Montgomery County, with whom were Paul A. McGuckian, County Attorney for Montgomery County, and Richard E. Frederick, Deputy County Attorney for. Montgomery County, on the brief, for appellant.

      Richard T. Colaresi for appellee.
   Moylan, J.,

delivered the opinion of the Court.

It is unfortunate but not uncommon to see a child involved in a tug-of-war between two competing parents. It is extremely rare, however, to see children involved in a tug-of-war between two competing courts. That, in a nutshell, is the issue before us on this appeal.

Without unnecessarily belaboring the details, Darius, Persephone and Germaine are three siblings, all of whom are still under five years of age, who were found to be Children in Need of Assistance. In January, 1978 (January, 1979, in the case of the youngest, Germaine), all three children were committed to the custody and care of the Montgomery County Department of Social Services and, by that Department, were placed in foster care. On January 24, 1980, a hearing was held in the juvenile court of Montgomery County for purposes of reviewing the status of the subject children. Following the hearing, the juvenile court judge determined that it would be in the best interests of the children to remain in foster care, to remain under the general jurisdiction of the court and to remain under the continuing commitment to the Montgomery County Department of Social Services. The parents, on the other hand, because of evidence of significant progress in resolving their problems of emotional and marital instability, were to be allowed enlarged visitation rights under a specific schedule set out in the court order. Thus far, nothing that was determined is controversial.

At the same hearing, the Department of Social Services expressed its intention to file !in the circuit court a Petition for Guardianship with the Right to Consent to Adoption. The final provision of the court order of January 24, 1980, was intended to enjoin such action by the Department of Social Services:

"ORDERED that under Article 3-827 of the Courts and Judicial Proceedings, it being determined by the Court that any one to file any action to relieve the parents of their parental rights may defeat the disposition of the Court; and said filing of any action be and hereby is PROHIBITED; And It Is Further;____”

The Department of Social Services takes umbrage at this final order, arguing 1) that it violates the notion of the proper separation of powers for one coordinate branch of government (the judicial) to presume to tell another coordinate branch of the government (the executive) how to behave, and 2) that it represents an invasion of the province of the circuit court on the part of the juvenile court.

The provision under which the juvenile court asserted its authority to act is Courts and Judicial Proceedings Article, § 3-827, which provides, in pertinent part:

"Pursuant to the procedure provided in the Maryland Rules, the court may make an appropriate order directing, restraining, or otherwise controlling the conduct of a person who is properly before the court, if:
(i) The court finds that the conduct:
(a) Is or may be detrimental or harmful to a child over whom the court has jurisdiction; or
(b) Will tend to defeat the execution of an order or disposition made or to be made; ....”

The power of the juvenile court to utilize such orders to accomplish its appropriate mission must be viewed in the context of what is that mission and what are the limits upon it. We find guidance in § 3-802 (a), which declares that the very purpose for the establishment of the juvenile court is, inter alia:

"(1) To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest; ...
(3) To conserve and strengthen the child’s family ties and to separate a child from his parents only when necessary for his welfare or in the interest of public safety;
(4) If necessary to remove a child from his home, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents;
(5) To provide judicial procedures for carrying out the provisions of this subtitle.”

It is clear that the juvenile court can, when circumstances demand, go so far as to remove a child from the custody of its parents. It is equally clear that the express statement of purpose does not go so far as to empower the juvenile court to deal with the transcendent problem of severing all legal ties and providing for the adoption of the child by another. The responsibility for making that very distinct and more far-reaching decision is conferred by Courts and Judicial Proceedings Article, § 3-601, exclusively upon the circuit court:

"A circuit court sitting in equity has jurisdiction in an action for adoption.”

Section 3-602 (a) confers jurisdiction on the circuit court sitting in equity to handle, inter alia, guardianship matters and Article 16, § 72 deals with the attendant procedure of petitioning for guardianship with the right to consent to adoption. Indeed, when Courts Article § 3-602 (b) spells out the unimpaired jurisdiction of the juvenile court, contrasting it with the circuit court, the subject of adoption is not a part of that catalogue.

It is furthermore clear that within the broad legislative grant of authority to the Social Services Administration under Article 88A and the appropriately promulgated rules and regulations of that Administration, COMAR 07.02.11.16, the Montgomery County Department of Social Services is empowered to petition for guardianship with the right to consent of adoption:

"When permanent separation from the child’s own family is indicated, the appropriateness of the planning is to be determined as soon as possible and steps taken to obtain guardianship with right to consent to adoption.”

Nothing said or held herein is the remotest intimation on the merits of some speculative petition for guardianship with the right to consent to adoption in this case. Upon the possible filing of such petition, those merits would be explored by the circuit court sitting in equity. Our holding is simply that the juvenile court cannot defeat the power of the circuit court to entertain such a petition. The wisdom or folly of the Montgomery County Department of Social Services in possibly filing such a petition is not before us. Our holding is simply that the juvenile court cannot restrain the proper exercise by the Montgomery County Department of Social Services of its lawful authority to act.

That part of the order of the juvenile court prohibiting the Department of Social Services from petitioning for guardianship is vacated; costs to be paid by Montgomery County

         When Courts and Judicial Proceedings Article § 3-832 points out that an action taken by "the District Court in Montgomery County sitting as a juvenile court, shall be treated in the same manner as if it had been made, done or entered by a circuit court,” it is simply recognizing the unique status of the juvenile court in Montgomery County and granting to litigants before that court the same appellate prerogative that they would have before any other juvenile court in the State.


author: Lowe, J.,

text:
    BALTIMORE COUNTY, MARYLAND v. BARRETT F. SMITH, JR. and FRANCES M. SMITH, t/a Boyd Construction
    [No. 268,
    September Term, 1980.]

      Decided November 13, 1980.

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

      Stanley J. Schapiro, Assistant County Solicitor for Baltimore County, with whom was Leonard S. Jacobson, County Solicitor for Baltimore County, on the brief, for appellant.

      Stephen J. Nolan, with whom were James D. Nolan and Nolan, Plumhoff & Williams on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

When a building permit is applied for in Baltimore County, § 22-17 of the Baltimore County Code establishes a procedure whereby the county planning board may stay any improvement upon the property for as long as 18 months. When the application is made for such permit, within 15 days the director of planning shall report to the planning board any conflict with the county’s master plan. The board then may promptly refer the question to the agency most affected by the proposed improvement, which agency must report back within 30 days whether, in the public interest, the land involved in the application should be "reserved” and include an estimate of time (not to exceed 14 months) required to complete acquisition of the land.

If the planning board agrees at its next meeting, it may declare the public reservation,

"... the period of which shall in no event exceed eighteen months from the date of the original application for a building permit ....”§ 22-17 (c).

If at the end of the reservation period, the reserved land is not acquired for public use, or if condemnation proceedings have not been commenced, "the reservation shall be void” and the board shall record a release within 15 days. § 22-17 (g).

Because no building or other structure shall be erected on the land so reserved during the reservation period proclaimed, in order to avoid the unconstitutionality of an uncompensated taking (see Md.-Nat’l Cap. P. & P. Comm’n v. Chadwick, 286 Md. 1 (1979)), taxes, etc., are waived, § 22-17 (f), and the property owner and applicant shall be entitled to bring a cause of action for "actual damages sustained ... by reason of the public reservation....” § 22-17 (h).

To determine such damages (as well as attorney’s fees and expert witness fees), the ordinance creates a new cause of action; however, such cause of action is predicated upon there having been no condemnation proceedings or acquisition before the expiration of the reservation period.

"If at the end of the reservation period, the land so reserved is not acquired for public use or if condemnation proceedings have not been instituted in the appropriate court, any person aggrieved shall have a right of action at law against the county for actual damages sustained by him by reason of the public reservation together with reasonable attorney’s fees and expert witness fees as may be approved by the court.” § 22-17 (h).

The parties to this case, Baltimore County, Maryland, appellant, and Barrett F. Smith, Jr. and Frances M. Smith, his wife, trading as Boyd Construction, appellees, have agreed to a statement of facts which we have condensed to a short, pertinent, chronological recitation.

1. On January 6, 1976, plaintiff filed for four building permits. A "hold” was placed upon them by the county the following month.
2. Although two permits were subsequently obtained, the "hold” remained in effect on the other two applications until March 24,1977,14 months after the application.
3. The Agreed Statement of Facts then recites that:
"The Appellants, by a Resolution dated March 24, 1977, of the Baltimore County Planning Board, declared a public reservation of the land covered by the denied Building Permit Applications No. 76818 and 76819, pursuant to Section 22-17, entitled Effect of Proposals in Master Plan on Applications for Building Permits or for Approval of Preliminary Subdivision Plans, Baltimore County Code (1968) [now recodified as Baltimore County Code, 1978, Section 22-18]. Pursuant to that Code provision, the eighteen (18) month reservation period commenced on January 6, 1976, the date Appellees submitted their permit applications. Since the property was neither acquired nor were condemnation proceedings instituted during the eighteen-month reservation period mandated by Section 22-17, the Planning Board declared the reservation to be void by a Resolution dated November 17, 1977.” (Emphasis partially added).
4. On June 15, 1978, appellees again filed for building permits having been unable to obtain them despite the terminated reservation.
5. Condemnation proceedings were brought on July 18,1978, but the result of that proceeding is not a part of the record.

The issues raised deal with the damages allowed by the Circuit Court for Baltimore County as the result of a proceeding brought pursuant to § 22-17 (h) on August 25, 1977. For reasons unexplained — even after inquiry — the condemnation proceeding and the statutory proceeding were not consolidated.

Based upon the profits made upon sale of the two houses built (when two of the applications were issued from the four first sought), the trial judge found that the "actual damages sustained by ... reason of the public reservation” on the two reserved building sites were commensurate with profits made in the development of the adjacent sites, and added attorney’s fees which he almost halved from those submitted by appellees’ counsel. Appellant is concerned over the court’s computation of lost profits as an element of damages, and we add parenthetically, with some justification.

Appellees filed a cross appeal which complained not only that the court arbitrarily established an attorney’s fee unsupported by, and contrary to, the evidence, but also that it improperly reduced the "lost profits” by the value of the land then under condemnation as testified to by appellant. While there appears to be merit in these contentions as well, we find more substantial error in the trial apparently caused by misstatement of the "facts” agreed upon by the parties. Even if that agreed statement as set forth in both briefs were an attempted compliance with Md. Rule 1026 e ("Statement of Case in Lieu of Pleadings and Evidence”), we are not bound by a recitation of facts that is contrary to, and unsupported in, the record.

As we have noted by added emphasis, the "Agreed Statement of Facts” recited that the reservation period was for 18 months beginning January 6, 1976, and that absent condemnation within the next succeeding 18 months, the planning board declared the reservation to be void by a resolution dated November 17,1977. Not only was such false recitation misleading to the court below, it was repeated as fact upon appeal and justified upon inquiry as a nunc pro tunc act by the board. We find nothing in the record indicating either such intent by the board or authority if such had been its inclination.

The resolution of reservation was dated March 24, 1977, and it declared a public reservation upon the property in question

"from this date until July 6, 1977.”

That is a period of 3 months and 12 days, not 18 months as recited and as assumed by the trial judge in determining damages.

While the briefs skirted the issue, upon inquiry at argument counsel for both parties sought to indicate that the resolution was retroactive to the January 1976 "hold” date. Even if the planning board were authorized to issue a nunc pro tunc reservation — which is gravely doubtful — the resolution does not indicate any such intention by the board, nor is there any extraneous evidence from which that intent may be inferred. This seems to have been a silent agreement between the parties either undiscovered or acquiesced to by the trial court — neither of which could sanction that which is not even factually inferable from the evidence.

Courts do not decide cases on what parties would like the facts to be. The facts must accord with the evidence, at least inferentially and the court must decide the issue as such factfinder. The statutory cause of action brought by appellant limited any recovery by him to the reserved period, and there is nothing in the evidence relating to such period other than the resolution of the board establishing it from March 24, 1977 until July 6, 1977.

We will reverse the judgment of the Circuit Court for Baltimore County and remand this case for a new trial. Because this cause of action seeks damages under the ordinance for the reserved period only, we will not address what cause of action or right of recovery appellant may have or have had regarding that which was condemned, or regarding those periods of deprived use before the reservation, and after reservation but prior to condemnation.

Judgment reversed.

Case remanded for retrial.

Costs to be divided equally between the parties.

      . Baltimore County Code, 1968, § 22-17, in effect at the pertinent times in this case, is now codified in Baltimore County Code, 1978, § 22-18.

        . The Agreed Statement of Facts as recited by both parties gives the year as 1979. That is obviously incorrect and we find from the Declaration that the year was 1976, although that document declares a different day.

      . It is difficult to see how a temporary reservation can be construed as the cause of a permanent deprivation of improvement or development potential or profits therefrom. That loss was occasioned by the condemnation, if at all, not by the temporary reservation.

      . Apparently appellees were willing to proceed under a statutorily sanctioned cause of action rather than becoming involved in a constitutional deprivation case; and obviously the County was anxious to clean its own skirts in light of its unauthorized refusal to issue the permits or to proceed statutorily to reserve the property for a period of nearly 15 months.

      . The apparent reason the termination date of July 6, 1977 was placed in the resolution arises from the fact that the ordinance limits the right to reserve to an 18-month period "from the date of the original application for a building permit ....”§ 22-17 (c). Since the application was first made on January 6, 1976, the 18 months expired on July 6, 1977.