source: Caselaw Access Project

author: Friedman, J.

license: Public Domain

text:
    153 A.3d 847
    William H. TORBIT, Sr., et al. v. BALTIMORE CITY POLICE DEPARTMENT, et al.
    No. 1475,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    February 2, 2017

      Robert Schulman of Baltimore, MD, Lauren D. Benjamin (Eugene A. Arbaugh, Smith, Gildea <& Schmidt, LLC, Towson, MD, of the brief), for Appellant.
    Daniel J. Moore (William J. Jackson, Moore & Jackson, LLC of Towson, MD) William R. Phelan, Jr. (George Nilson, City Solicitor, Baltimore, City Office of Law, James H. Fields, Fields, Peterson, LLC all of Baltimore, MD) (Christopher R. Lundy, Baltimore City Dept, of Law of Baltimore, MD, Brett A. Buckwater, Alicia D. Stewart, Niles, Barton & Wilmer, LLP of Baltimore, MD, Robin F. Kessler, RFK Law, LLC of Odenton, MD) all on their briefs, for Appellee,
    Krauser, C.J., Friedman, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.
   Opinion by

Friedman, J.

Two people were killed and several others were injured when the Baltimore Police Department (“BPD”) responded to an “active shooter” situation outside a nightclub in Baltimore City. We are first asked to determine whether the Police Department, the Club, and an adjoining parking lot’s owner and operator may be liable for actions prior to the shooting. For a variety of reasons described below, we affirm the trial court’s rulings in favor of those appellees. We are then asked to determine whether the trial court erred in granting judgment in favor of the four police officers who fired their guns at the shooter. We affirm the trial court’s finding that no reasonable juror could find that the officers were grossly negligent.

BACKGROUND

On January 9, 2011, the BPD was called to the Select Lounge. nightclub, located on Baltimore City’s North Paca Street, after several fights had broken out inside the nightclub. On arrival, Major Marc Partee decided to close the club early and send its patrons home. Police set up a perimeter around the club and an adjacent parking lot frequently used by guests of, although not owned by, the Select Lounge.

After the closing, Jazzmin Graves, a patron of the Select Lounge, was walking across the parking lot when she was hit by a car pulling out of the lot. Although Ms. Graves was not harmed, an argument erupted between occupants of the car and Ms. Graves and her friends. Because the ear was blocking traffic, a man in dark clothing—specifically in black jeans, hat, boots, and a black “hoodie” sweatshirt—approached the group. The man told the two groups to stop arguing and to leave the parking lot. The car drove off the lot.

Another patron, later identified as Sean Gamble, however, took exception to the dark-clothed man’s actions. Gamble “got up in” the dark-clothed man’s face and expressed his view that the man shouldn’t be “putting [his] hands on a female.” The dark-clothed man told Gamble to “mind your own fucking business.” While they argued, another man, later identified as Darrell “Rico” Baker, sucker-punched the dark-clothed man. More men joined the fray, knocking the dark-clothed man to the ground and began “stompingt,] kicking[,] and punching” him.

The dark-clothed man then pulled and fired a gun.

Officer Harry Pawley testified that the dark-clothed man fired a few shots, paused briefly, and then resumed shooting:

Q: When did you withdraw your service weapon?
A: I was putting my mace away, I heard gunshots. I looked up, more gunshots. I saw an individual on the ground shooting and that’s at which time I withdrew my weapon and fired.

Further:

Q: When you witnessed [the dark-clothed man] shooting, he was laying on his back shooting up into the air, wasn’t he?
A: No. He was laying on his back shooting, like, his arm moving from side to side, discharging.

Officer Harry Dodge testified that, after hearing initial shots, he looked up and saw the dark-clothed man fire shots toward Franklin Street, a cross street of North Paca:

Q: Was the individual firing his weapon ... into the air indiscriminately?
A: He was firing towards Franklin Street indiscriminately with his arm parallel to the ground.
Q: It wasn’t into the air?
A: Not the second time he started shooting, no. The first time he started shooting, I don’t recall which direction he was firing. The second time he began firing again, he was indiscriminately [shooting] towards Franklin street where a group of people were.

Officer Latora Craig testified that she heard several initial shots, saw the men who had attacked the dark-clothed man begin to run, and saw that the dark-clothed man began to fire again indiscriminately:

Q: ... And the shots that were fired by that person that you saw they were all going towards Franklin Street. Correct?
A: They were going in different directions, he had no aim. Some were straight up, some were down. They were back- and-forth.

Officer Craig further testified that the initial shots “went past [her] legs and [her] feet.”

Finally, Officer Toyia Williams testified that she heard rapid gunfire nearby, observed about 20 to 30 people between her and the shooter, identified a muzzle flash from the shooter’s gun, and then fired her weapoh at the shooter.

Both the dark-clothed man and Sean Gamble were fatally wounded. Jazzmin Graves and two other patrons, Katrina Harris and Jamie Jordan, suffered minor gunshot wounds.

The dark-clothed man was later identified as BPD Officer William Torbit.

PROCEEDINGS BELOW

Several lawsuits were filed and consolidated in the Circuit Court for Baltimore City. Plaintiffs were Katrina Harris, Jazzmine Graves, Jamie Jordan, the Estate of William Torbit, and the Estate of Sean Gamble. Defendants were the Select Lounge, its owner and manager, the parking lot owner Shell Realty, Inc., the parking lot operator PMS Parking, Inc., the BPD, former Commissioner Frederick Bealefeld, Major Par-tee, Lieutenant Charles Clayton (Torbit’s partner), and BPD Officers Pawley, Dodge, Craig, and Williams.

Claims against Commissioner Bealefeld and the BPD were dismissed. Summary judgment was entered in favor of Select. A jury trial commenced regarding the remaining claims but the trial court, at the conclusion of the plaintiffs’ case, granted motions for judgment in favor of the remaining defendants. The plaintiffs noted this appeal.

DISCUSSION

We have reorganized the appellate issues according to their procedural posture. Pursuant to that organization, Appellants first argue that the trial court erred in granting Commissioner Bealefeld and the BPD’s motions to dismiss. Next, they argue that the trial court erred in granting summary judgment in favor of Select. Finally, they argue the trial court erred in granting motions for judgment in favor of PMS, Shell, Major Partee, Lieutenant Clayton, and the four police officers who fired their guns.

I. Motions To Dismiss

Appellants assert the trial court erred in dismissing their tort claims against Commissioner Bealefeld and the BPD. Appellants argue that Commissioner Bealefeld and the BPD owed a duty to protect the public from harm. That duty, they claim, arises out of a special relationship between the public, the BPD, and Commissioner Bealefeld. Appellees argued below and in this Court that Commissioner Bealefeld and the BPD owed no duty of care to Appellants.

The standard of review of a grant of a motion to dismiss is “whether the trial court was legally correct.” Litz v. Maryland Dep’t of Env’t, 446 Md. 254, 264, 131 A.3d 923 (2016). We “must determine whether the [c]omplaint, on its face, discloses a legally sufficient cause of action.” Pittway Corp. v. Collins, 409 Md. 218, 234, 973 A.2d 771 (2009). In reviewing the complaint, we “accept all well-pled facts in the complaint, and reasonable- inferences drawn from them, in a light most favorable to the non-moving party.” Litz, 446 Md. at 264, 131 A.3d 923. “Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.” O’Brien & Gere Engineers, Inc. v. City of Salisbury, 447 Md. 394, 403-04, 135 A.3d 473 (2016) (citations omitted).

In a negligence action, “a plaintiff must allege facts demonstrating (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” McNack v. State, 398 Md. 378, 394, 920 A.2d 1097 (2007) (quoting Remsburg v. Montgomery, 376 Md. 568, 582, 831 A.2d 18 (2003)) (internal quotations omitted). Thus, in a case based in negligence, as we have here, we begin by identifying whether a legally cognizable duty exists. Id. at 396, 920 A.2d 1097. The Court of Appeals of Maryland has explained that police do not owe an enforceable tort duty to the public at large. Muthukumarana v. Montgomery Cnty., 370 Md. 447, 486, 805 A.2d 372 (2002) (“[W]hen a statute or common law imposes upon a public entity a duty to the public at large, and not a duty to a particular class of individuals, the duty is not one enforceable in tort.”) (Internal quotations omitted). A duty may arise between police and an individual, however, when there is a “special relationship.” Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 143, 753 A.2d 41 (2000) (explaining that, “absent a ‘special relationship’ between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie against police officers”). Thus, Appellants can recover against Commissioner Bealefeld and the BPD only if they plead and prove the existence of a special relationship. “[F]or a special relationship between police officer and victim to be found, [a plaintiff] must [show] that the local government or the police officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim’s specific reliance upon the police protection.” Fried v. Archer, 139 Md.App. 229, 250-51, 775 A.2d 430 (2001) (emphasis added) (citations omitted).

Here, Appellants have not pleaded facts in their complaint that allege Commissioner Bealefeld or the BPD affirmatively acted to protect Appellants from harm, or that Appellants were specifically relying on protection from Commissioner Bealefeld or the BPD. They try to bridge that gap by alleging that Commissioner Bealefeld and the BPD failed to act. Thus, Katrina Harris and Jazzmin Graves alleged that Commissioner Bealefeld and the BPD ‘fail[ed] to establish and/or implement adequate policies, rules and/or guidelines, and/or adequately train and/or prepare its ... employees in operational realities ... relating to ... crowd control.” Sean Gamble similarly alleged that Commissioner Bealefeld “failed ... to use proper care in selecting, supervising, training, and or retaining their employees.” But failure to act, by definition, cannot satisfy the requirement of an “affirmative act.” As a result, because there was no affirmative act to create such a relationship, no special relationship existed between Commissioner Bealefeld and Appellants nor between the BPD and Appellants. Consequently, Commissioner Bealefeld and the BPD owed Appellants no duty of care. Because Appellants have not provided allegations and facts that, if proven, would be sufficient to afford relief, we hold that the trial court did not err in dismissing claims against Commissioner Bealefeld and the BPD.

II. Summary Judgment

Appellants argue that the trial court erred in granting summary judgment in favor of Select because Select violated a duty of care owed to nightclub patrons. Appellants claim that Select’s knowledge of criminal activity in the neighborhood, over-promotion, allowance of overcrowding, and lack of security created a dangerous condition that was the proximate cause of Appellants’ injuries. Select disputes that it owed a duty of care but also argues that, even if it did and violated that duty, the police shooting was a superseding cause of Appellants’ harm. The trial court found that “even if [the] Court is to consider [Select] a tortfeasor, [the] ensuing chain of events was not foreseeable.” Moreover, “the end result of a fatal police shooting was clearly not foreseeable.”

A trial court “shall enter [summary] judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f). We apply a de novo standard of review in determining whether the trial court correctly entered summary judgment. Roy v. Dackman, 445 Md. 23, 39, 124 A.3d 169 (2015).

Even if we assume that Select owed a duty to Appellants, we agree with the trial court that Select was not the proximate cause of Appellants’ injuries. That is because an intervening act—Torbit’s firing of his gun—broke the causal link between any action by Select and Appellants’ injuries. A “defendant’s negligence is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause.” Sindler v. Litman, 166 Md. App. 90, 116, 887 A.2d 97 (2005) (citations omitted). “An intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence.” Id. at 115, 887 A.2d 97.

Here, Torbit firing his gun was an intervening force and superseding cause of Appellants’ injuries, Even if Select knew of crime in the area, knew that the nightclub was overcrowded, knew that the nightclub was over-promoted, and failed to hire adequate security, it could not foresee that Torbit, a plainclothes BPD officer, would fire his weapon in a nearby parking lot. Because there is no genuine dispute of material fact regarding whether Torbit firing his gun was an intervening force and superseding cause, we hold that the trial court correctly granted summary judgment in Select’s favor.

III. Motion for Judgment

Appellants contend that the trial court erred when—at the conclusion of Appellants’ case but prior to the case being submitted to the jury—it granted motions for judgment in favor of the remaining Appellees. We will begin by analyzing the trial court’s grant of judgment in favor of Shell and PMS. We then address, in turn, the trial court’s grant of judgment in favor of Major Partee, Lieutenant Clayton, and the remaining police officers.

“We review the trial court’s grant of [a] motion for judgment de novo, considering the evidence and reasonable inferences drawn from the evidence in the light most favorable to the non-moving party.” Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 393-94, 31 A.3d 583 (2011) (citations omitted); see also Md. Rule 2-519. A case must be submitted to a jury for consideration if any evidence is legally sufficient to create a jury question. Lowery v. Smithsburg Emergency Med. Serv., 173 Md.App. 662, 683, 920 A.2d 546 (2007).

A. Shell & PMS

Appellant Sean Gamble contends that Shell, the parking lot owner, and PMS, the parking lot operator, violated a duty of care by failing to protect Gamble from harm. Both Shell and PMS argue that the police shooting was unforeseeable and therefore they were not the proximate cause of Gamble’s injuries.

“It is a basic principle that ‘[n]egligence is not actionable unless it is a proximate cause of the harm alleged.’ ” Pittway, 409 Md. at 243, 973 A.2d 771 (quoting Stone v. Chicago Title Ins., 330 Md. 329, 337, 624 A.2d 496 (1993)). “Proximate cause involves a conclusion that someone will be held legally responsible for the consequences of an act or omission.” Id. (Internal quotations and citations omitted). To prove proximate causation, a plaintiff must establish legal causation. Id. at 245, 973 A.2d 771, “[L]egal causation most often involves a determination of whether the injuries were a foreseeable result of the negligent conduct.” Id. at 246, 973 A.2d 771. A “defendant may not be Hable if it appears highly extraordinary and unforeseeable that the plaintiff’s] injuries occurred as a result of the defendant’s] alleged tortious conduct.” Id. at 247, 973 A.2d 771.

Here, the trial court found that “there [was] no evidence that it was foreseeable to [PMS and Shell] that Mr. Gamble would involve himself in an incident on the lot, and end up entangled with Officer Torbit, and ultimately be shot by either Officer Torbit or the other defendant police officers.” Moreover, “the shooting was an extraordinary event, and not foreseeable under these circumstance.” We agree. Appellants have not presented any evidence to support a jury finding that Shell or PMS could have foreseen Gamble getting involved in a skirmish on the lot nor the subsequent police shooting. Therefore, we affirm the trial court’s grant of judgment in favor of Shell and PMS.

B. The Police Officers on Scene

Appellants contend that there was sufficient evidence that Major Partee, Lieutenant Clayton, and police officers Pawley, Dodge, Craig, and Williams were grossly negligent and, therefore, that the trial court erred in finding that there were no factual disputes for the jury to resolve.

We begin by noting that gross negligence is not just “big negligence.” Rather, gross negligence is:

[A]n intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is [liable] of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.

Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699 (2007) (citations omitted); see also Shoemaker v. Smith, 358 Md. 143, 164, 725 A.2d 549 (1999) (explaining that gross negligence is akin to “reckless or wanton conduct”). Here, to reverse the trial court’s grant of judgment, there must be legally sufficient evidence to support a jury finding that Appellees were grossly negligent. We take the Appellees separately.

i Major Partee

Appellants contend Major Partee was grossly negligent in the manner in which he managed the nightclub’s early closing. They produced an expert witness, Dr. Tyrone Powers, who testified: (1) that a supervising officer has a duty to give orders and make sure those orders are carried out; (2) that, in his opinion, no perimeter was set up outside the club and; (3) that Major Partee failed to give adequate instruction to Officer Torbit as a plainclothes police officer. Appellants argue that each of these failures violated the standard of care.

The question here, however, is not whether Major Partee violated a standard of care, but rather whether a reasonable juror could conclude that Major Partee’s conduct strayed so grossly from the ordinary standard of care as to support a finding of utter indifference to the rights of others. See Barbre, 402 Md. at 187, 935 A.2d 699. We necessarily focus, therefore, on whether, under the circumstances, Major Par-tee’s actions showed utter disregard for the safety and rights of others. We affirm the trial court’s finding that Appellants’ did not present sufficient evidence to support any inference of gross negligence. Major Partee may have failed to properly command his subordinate police officers, but there was no evidence that he didn’t instruct them because he didn’t care. He may have failed to set up a perimeter, but there was no evidence that this failure amounted to gross disregard for the lives of Appellants. He may not have adequately instructed Officer Torbit on how to behave while Torbit was in plainclothes, but there is no evidence that this was because he had reckless disregard for Torbit’s safety. Thus, even if we were to accept Appellants’ factual assertions that Major Partee failed to act in these several respects, we agree with the trial court that no reasonable juror could find his conduct constituted gross negligence.

Finally, Appellants make an incomplete argument that Major Partee violated their constitutional rights—protected by Articles 16 and 25 of the Maryland Declaration of Rights—against “cruel and unusual pains and penalties” and “cruel or unusual punishments.” Maryland courts have historically treated these provisions as providing the same protection as the Eighth Amendment to the United States Constitution. See, e.g., Harris v. State, 312 Md. 225, 237 n.5, 539 A.2d 637 (1988); see also Dan Friedman, THE MARYLAND STATE CONSTITUTION: A REFERENCE GUIDE 42-44, 61-62 (Oxford ed. 2011) (and cases cited therein). Federal courts have consistently held that the Eighth Amendment’s prohibition on “cruel and unusual punishments” applies only after conviction, not before. See, e.g., Risk v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997) (“The Eighth Amendment prohibits the infliction of cruel and unusual punishment on one convicted of a crime.”) (Emphasis in original). Appellants have failed to explain why they believe Articles 16 and 25 of the Maryland Declaration of Rights should be given a divergent interpretation from that given to the Eighth Amendment. See Dan Friedman, The History, Development, and Interpretation of the Maryland Declaration of Rights, 71 Temple L. Rev. 637, 645 (1998) (“How to Create an Argument”). In the absence of such an argument, we must deny relief.

ii Lieutenant Clayton

Appellants contend that the trial court erred in granting judgment in favor of Lieutenant Clayton, Officer Torbit’s partner, because they claim there were several questions of material fact for the jury to consider. Appellants have not shown and it is not clear to us, however, what claims those allegedly disputed facts would support. “Appellate courts cannot be expected to either (1) search the record on appeal for facts that appear to support a party’s position, or (2) search for the law that is applicable to the issue presented.” Ruffin Hotel Corp. of Maryland v. Gasper, 418 Md. 594, 618, 17 A.3d 676 (2011) (citations omitted). We, therefore, affirm the trial court’s grant of judgment in favor of Lieutenant Clayton.

Hi. Remaining Police Officers

Finally, Appellants argue that the trial court improperly resolved the issue of whether the four police officers who fired their guns—Pawley, Dodge, Williams, and Craig—were grossly negligent. In support of this contention, Appellants insist that a jury could have decided that the police officers’ alleged violation of police training and policy, and decision to fire their guns, amounted to gross negligence. Appellees generally argue that the officers acted reasonably in response to an active shooter situation. The trial court found that appropriate deference must be given to police—especially when they are making “difficult and extremely quick decisions in split second circumstances of high stress and of an emergency nature”—and therefore entered judgment in favor of the four police officers.

The Court of Appeals of Maryland has, following United States Supreme Court precedent, explained that excessive force claims against police officers are to be analyzed under Fourth Amendment jurisprudence. Richardson v. McGriff, 361 Md. 437, 452, 762 A.2d 48 (2000) (citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In Richardson, the Court explained the relevant inquiry regarding claims of excessive force:

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. ... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

Id. at 465 (citations omitted); see also Boyer v. State, 323 Md. 558, 589, 594 A.2d 121 (1991) (“[T]he police officer’s conduct should be judged not by hindsight but should be viewed in light of how a reasonably prudent police officer would respond faced with the same difficult emergency situation.”). The Court further explained the Fourth Amendment “does not allow [a] ‘Monday morning quarterback’ approach because it only requires that the seizure fall within a range of objective reasonableness.” Richardson, 361 Md. at 455, 762 A.2d 48 (citing Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995)). Moreover:

The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within a range of conduct which is objectively “reasonable” under the Fourth Amendment. Alternative measures which 20/20 hindsight reveal to be less intrusive (or more prudent), such as waiting for a supervisor or the SWAT team, are simply not relevant to the reasonableness inquiry.

Richardson, 361 Md. at 455, 762 A.2d 48 (quoting Schulz, 44 F.3d at 649). The Richardson Court concluded that that principle of reasonableness “is the appropriate one to apply” to excessive force claims brought under common law claims for gross negligence. Richardson, 361 Md. at 452, 762 A.2d 48.

Here, it is undisputed: (1) that the parking lot was dark; (2) that a dark-clothed man randomly fired shots in a group within the parking lot; (3) that a group a people were around the dark-clothed man when he started firing; (4) that when the dark-clothed man began firing a weapon, police officers did not know he was a fellow police officer; and (5) that four police officers fired their guns at what they perceived to be an active shooter. The shooter posed an active danger to the public and law enforcement. A jury might question the four police officers’ decision to fire their weapons. As the trial court explained, however, “[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with 20/20 hindsight.” Therefore, even making all reasonable inferences in favor of Appellants, we affirm the trial court’s grant of judgment in favor of Officers Pawley, Dodge, Craig, and Williams.

JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.

      . "An ‘active shooter’ is an individual actively engaged in killing or attempting to kill people in a populated area,” FBI, Active Shooter Incidents, https://perma.cc/P4AB-CUQH.

      . The Select Lounge, its owner, and manager will be collectively referenced as "Select” herein.

      . Appellants suggest that Torbit, by virtue of his employment as a BPD officer, had a special relationship with the BPD, thus creating a duty of care. Torbit’s complaint alleged that the BPD had a duty to, among other things, “conduct a specific policy addressing the type of attire necessary for plainclothed officers." Appellants have not, however, pleaded facts alleging that BPD affirmatively acted to protect Torbit from harm or that Torbit specifically relied on its protection. Therefore, no special relationship existed and no duty of care arose.

      . Appellants also contend that Commissioner Bealefeld and BPD are liable—by way of the doctrine of respondeat superior—for constitutional violations allegedly committed by BPD police officers in this case. Because we affirm the trial court’s judgment in favor of all BPD police officers involved here, none of the officers can be found liable. See infra, Part III. We, therefore, do not need to address Appellants’ respondeat superior argument.

      . Appellants further argue that the trial court erred by improperly striking their motion for reconsideration of the trial court’s grant of Commissioner Bealefeld and the BPD’s motion to dismiss. Rule 2-534 provides that a trial court, "on motion of any party filed within ten days after entry of judgment, ,.. may amend the judgment, or may enter a new judgment.” Md. Rule 2-534. Here, Appellants filed their motion for reconsideration 7 months after the entry of judgment. Appellants’ motion was therefore untimely and properly stricken. Moreover, Appellants have not explained how, had the trial court considered their untimely motion for reconsideration, the outcome would have changed. As a result, we affirm the trial court’s striking of Appellants’ motion for reconsideration.

      . Appellants filed suit against Select’s owners and manager as well. Assuming that Select’s owners and manager could be held liable for tortious conduct relating to operation of the nightclub, we would find, as we found with Select, that an intervening act was a superseding cause of Appellants’ injuries.

      . In their brief, Appellants argue the trial court erred in prohibiting testimony regarding various other crimes in the vicinity of the parking lot. Because we affirm the trial court’s finding that the police shooting was not foreseeable, and do not think that any additional evidence of criminal activity near the parking lot would have made the police shooting foreseeable, we need not address those arguments.

      . Appellants alleged various theories of liability sounding in tort and constitutional violations against Major Partee, Lieutenant Clayton, and the four police officers who fired their guns: Dodge, Pawley, Craig, and Williams. Appellants, however, have—with the exception of constitutional claims against Major Partee—argued regarding only gross negligence, and have therefore waived issues related to their other claims. See Moats v. City of Hagerstown, 324 Md. 519, 525, 597 A.2d 972 (1991) (explaining that "[t]he failure of an appellant to raise an issue in the appellate court is usually deemed a waiver as to the issue”).

      , Article 16 of the Maryland Declaration of Rights provides:
      That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.
      Md. Const. Decl. of Rts. art. 16.

      , Article 25 provides "[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law,” Md. Const. Decl. of Rts. art. 25.

      , “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII.

      . Miles v. State provides an outstanding (albeit unsuccessful) example of how an appellant might craft an argument for an independent interpretation of the Maryland Declaration of Rights, in that case, regarding Article 16. 435 Md. 540, 80 A.3d 242 (2013), For additional materials on Article 16, see 71 Temple. L. Rev. at 656, 692-93 n.272-81; Dan Friedman, Tracing the Lineage: Textual and Conceptual Similarities in the Revolutionary-Era State Declarations of Rights of Virginia, Maryland, and Delaware, 33 RUTGERS L.J. 929, 1018 (2002). For additional materials concerning Article 25, see 71 Temple L. Rev. at 660, 698-99 n.380-89; 33 RUTGERS L.J. at 968.

      . Even if we construed Appellants’ arguments as a challenge to the trial court’s finding that there was no evidence sufficient to create a jury question of gross negligence, we would affirm, Appellants allege that Lieutenant Clayton "abandoned Officer Torbit almost immediately once [Clayton and Torbit] entered the nightclub” and thus failed to supervise his partner, knowing that Torbit was in plainclothes. As the trial court explained, however, "there was no evidence that it was against any police procedure for Officer Torbit to work alone,”

      , Appellants’ further argue that the trial court failed to consider the individual reasonableness of each police officer in firing their weapons. In support, Appellants point to the fact that several other police officers on the scene did not fire their weapons. This argument is unavailing. As the trial court explained, even if other police officers didn’t fire their weapons, "what each of the other officers independently perceived in those few moments” has no bearing on the question of the reasonableness of these four officers. We agree.


author: Graeff, J.

text:
    153 A.3d 859
    MONARCH ACADEMY BALTIMORE CAMPUS, INC., et al. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS
    404,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    Filed: February 2, 2017

      Francis W. DuBois (Christopher S. Gunderson, Venable, LLP on the brief) all of Baltimore, MD, for Appellant.
    Steven F. Barley (Hogan Lovells US LLP of Baltimore, MD, Maree F. Sneed, Michele E. Gutrick, Hogan Lovells US LLP of Washington, D.C.) all on the brief, for Appellee.
    Graeff, Berger, Shaw Geter, JJ.
   Graeff, J.

This appeal arises from complaints filed in the Circuit Court for Baltimore City by appellants, charter schools in Baltimore City (the “Charter Schools”), against the Baltimore City Board of School Commissioners (the “City Board”), appellee. The complaints alleged a breach of contract by appellee in failing to provide funding to the charter schools that was commensurate with the amount disbursed to other public schools and in failing to provide budget and financial information. After counterclaims were filed, the circuit court issued an order that stayed the proceedings in the circuit court “pending administrative review of the parties’ dispute by the State Board of Education” (the “State Board”).

On appeal, the Charter Schools present a single question for our review, which we have rephrased, as follows:

Did the circuit court err in staying the proceedings pending administrative review on the ground that the State Board has primary jurisdiction over the issues raised in the complaint?

For the reasons set forth below, we conclude that the circuit court’s order is not an appealable order, and therefore, we shall dismiss this appeal.

BACKGROUND

A decision to dismiss an appeal typically will not require a detailed discussion of background facts and law. In this case, however, the nature of the issues presented to the circuit court, including the connection between the authority of the State Board with respect to school budgets and the issues presented in the Charter Schools’ breach of contract claim, requires some background discussion.

State Board’s Authority Over Public Schools

Maryland Code (2014) § 2-205 of the Education Article (“ED”) sets forth the “broad” and “comprehensive” authority of the State Board. See Bd. of Educ. for Dorchester County v. Hubbard, 305 Md. 774, 787-88, 506 A.2d 625 (1986). It “exercised general control and supervision over the public schools and educational interests in this State,” ED § 2—205(g)(2), determines the “educational policies of this State,” ED § 2-205(b), and it “shall decide all controversies and disputes under” the Education Article. ED § 2-205(e)(2).

The Court of Appeals has stated that ED § 2-205 provides the State Board with “visitatorial power of such comprehensive character as to invest the State Board “with the last word on any matter concerning educational policy or the administration of the system of public education.’ ” Hubbard, 305 Md. at 788, 506 A.2d 625 (quoting Bd. of Educ. of Prince George’s County v. Waeldner, 298 Md. 354, 360, 470 A.2d 332 (1984)). Accord Baltimore City Bd. of Sch. Commr’s v. City Neighbors Charter Sch., 400 Md. 324, 343, 929 A.2d 113 (2007) (State Board has the “paramount role” “in interpreting the public education law.”). Although that visitatorial power is not unlimited, “ ‘the paramount role of the State Board of Education in interpreting the public education law sets it apart from most administrative agencies,’ ” Patterson Park Pub. Charter Sch., Inc. v. Baltimore Teachers Union, 399 Md. 174, 195, 923 A.2d 60 (2007) (quoting Hubbard, 305 Md. at 790-91, 506 A.2d 625), and “ ‘decisions of the State Board of Education are entitled to greater deference than those of most other administrative agencies.’ ” Id. at 197, 923 A.2d 60.

Charter School Funding

Charter schools have been described as “semi-autonomous public schools that operate under a contract with a State or local school board.” City Neighbors, 400 Md. at 328, 929 A.2d 113. “The contract, or charter, defines how the school will be structured, staffed, managed, and funded, what programs will be offered, and how the school will operate and account for its activities.” Id.

In 2003, the General Assembly created the Maryland Public Charter School Program by enacting Title 9 to the Education Article. Id. at 329, 929 A.2d 113. The purpose of the charter school system is to “establish an alternative means within the existing public school system in order to provide innovative learning opportunities and creative educational approaches to improve the education of students.” ED § 9-101(b). Because charter schools are public schools, they generally are subject to the “provisions of law and regulation governing other public schools.” ED § 9-102(11).

The General Assembly, in “trying to fashion a formula for public funding” for charter schools, opted not to set a “specific formula,” but rather, it determined that funding for charter schools should be in an amount “commensurate” with the amount disbursed to other public schools. City Neighbors, 400 Md. at 354-55, 929 A.2d 113. Accordingly, the statute provides:

A county board shall disburse to a public charter school an amount of county, State, and federal money for elementary, middle, and secondary students that is commensurate with the amount disbursed to other public schools in the local jurisdiction.

ED § 9-109(a).

The Court of Appeals has explained that this funding provision “necessarily left some room for interpretation—what was commensurate and how was the amount disbursed to other public schools to be determined when no amounts were actually disbursed to public schools?” City Neighbors, 400 Md. at 355, 929 A.2d 113, The Court stated that, by providing for funding in this manner, the legislature “must have envisioned that” the State Board, “the body it has consistently vested with the ultimate administrative authority to interpret, explain, and apply the public education laws—would have the primary authority to interpret, and the ultimate authority to implement, that provision.” Id.

Commensurate Funding Cases

In May 2005, the State Board issued opinions addressing several charter school funding cases. Id. at 335-36, 929 A.2d 113. The State Board concluded that the phrase “commensurate with the amount disbursed to other public schools in the local jurisdiction” meant that a public charter school would receive funding in an “amount proportionate to the amount of funds expended for elementary, middle, and secondary level students in the other public schools in the same system.” Id. at 336, 929 A.2d 113. That included “funding for services for which students in the public charter schools are eligible such as free and reduced price meals, prekindergarten, special education, English language learners, Perkins, Title I, and transportation.” Id.

Noting that there was “no statewide formula or methodology for determining how local school systems fund their schools,” the State Board decided on an “average per-pupil amount,” which is then multiplied by the student enrollment of the school. Id. at 336-37, 929 A.2d 113. The formula to determine the average per-pupil amount was the “[t]otal annual school system operating budget,” excluding debt service and adult education, divided by the “September 30 enrollment count for the previous year.” Id. at 337, 929 A.2d 113 & n.5. This amount was then reduced by 2% for reasonable administrative costs of performing school system central office functions. Id. at 337, 929 A.2d 113. The Court determined that the Board’s use of an average per pupil funding approach “had the virtues of both simplicity and flexibility,” given that, at that time, there was not an enrollment history at the schools “upon which to base a more refined enrollment-driven allocation of funds.” Id, at 355-56, 929 A.2d 113. Once that type of history existed, however, the Board could revisit the issue. Id. at 356, 929 A.2d 113.

The Board again addressed charter school funding in Monocacy Montessori Communities, Inc. v. Frederick County Board of Education, MSBE Op. No. 06-17, p. 3 (May 24, 2006). As this Court explained in Frederick Classical Charter School, Inc. v. Frederick County Board of Education, 227 Md.App. 439, 446, 134 A.3d 376, cert. granted, 448 Md. 724, 141 A.3d 135 (2016), the Board in Monocacy determined that “a school system could use a different formula so long as it resulted in a ‘bottom line amount of money’ ” that the Board could conclude amounted to the school system providing “proportionate/commensurate funds to the charter school.”

More recently, in Frederick Classical, the Board again addressed funding issues relating to a charter school. This Court upheld the Board’s determination that the charter school was not entitled to funding for transportation costs when, pursuant to its charter agreement, the school did not “participate in the public school transportation program,” but rather, the families of the students provided transportation. Id. at 459, 134 A.3d 376. The Board determined that a charter school is not entitled to receive funds for services it does not provide, and if it did, it would receive “more than its share of commensurate county funds.” Id. at 453, 134 A.3d 376.

Proceedings in the Present Case

In 2015, a number of Baltimore City’s public charter schools filed breach of contract complaints against the City Board. The complaints alleged that, for the 2015-2016 school year, there would be 34 charter schools in Baltimore City, “with a combined enrollment of approximately 13,724 students, or more than 15% of Baltimore City’s public school enrollment.” The Charter Schools asserted that the Charter School Agreement (the “Contract”) that they entered into with the City Board, addressed, among other things, funding of the schools and the City Board’s obligation to provide financial transparency in the funding process. Specifically, the Contract provided the following:

6.1 OPERATING FUNDS. The parties agree that Title 9[] requires funding of the charter school that is commensurate with the amount disbursed to other public schools in the local jurisdiction, and that Commensurate Funding is integral to this contractual relationship and essential to the School Operator’s ability to operate the School hereunder and that all funds provided by the School Board to the school are to be used solely for the benefit of the school and its students. Accordingly, during each school year during the Term, the School Board shall allocate Commensurate Funding to the School Operator for the following school year pursuant to Applicable Requirements. Any financial commitment on the part of the School System contained in this Agreement is subject to the annual appropriation by the School Board. The School Board’s staff shall deliver to the School Operator a draft of the funding formula including the amount of the estimated per pupil allocation for the applicable school year (determined in accordance with the School Board’s “approved funding formula” and Applicable Requirements) and will make a good faith effort to deliver these materials in no less than two weeks prior to the budget (distinct from the Budget of the School Operator covered in Section 6.2) submission deadline for the School, such deadline to be consistent with the deadline for all School System schools. The draft document will include: (i) the School System’s budget and line item amounts necessary to calculate the per pupil allocation, and (ii) copies of any materials or documentation related thereto that is delivered to the School Board for public presentation. Additionally, the School Board agrees to make reasonable efforts to provide to the School Operator background information on the methodology and assumptions behind the calculations as soon as such materials are available.

(footnotes omitted).

The complaints asserted one count for breach of contract, averring that the City Board “is contractually obligated to provide [the Charter Schools] ‘commensurate funding’ under the Contracts, but has failed to do so”; the City Board “is contractually obligated to provide [the Charter Schools] certain budget and financial information under the Contracts, but has failed to do so”; and the Charter Schools “ha[ve] sustained damages and will continue to sustain damages as a result of [the City Board’s] breach of contract.”

Specifically, the complaints alleged that the City Board never provided the Charter Schools with commensurate funding, and instead, “from year to year, arbitrarily presented charter school operators with take-it-or-leave-it charter school per pupil figures derived using varying (or no) calculation methodology, inflated estimates of overall System enrollment, and unsupported and dubious financial and budget figures.” Further, the City Board “failed to apply the per pupil calculation methodology put forth by the [State Board] and affirmed by the Court of Appeals,” and it not only failed to disclose the details of its calculations, but it “unilaterally changed their methodology in developing the amount to be disbursed to charter schools.”

The City Board filed motions “to dismiss, or in the alternative, motion to stay,” asserting, among other things, that the “gravamen” of the complaints, that the City Board had not provided “commensurate funding” for charter school students, was a matter that should be decided by the State Board, not the court, under the primary jurisdiction doctrine. Noting that it had filed, the same day as it filed the motions to dismiss, a petition for declaratory relief with the State Board, seeking a ruling that it had provided commensurate funding and properly applied the funding formula, the City Board asked that the complaints be dismissed pending a decision from the State Board. Alternatively, the City Board proposed that the circuit court proceedings be stayed until the State Board, the body best equipped to hear those issues, had ruled on the administrative proceeding.

The Charter Schools opposed the City Board’s motions, asserting that the circuit court, not the State Board, “has proper jurisdiction over this breach of contract action.” They asserted that the relief being sought was “equitable and legal redress and monetary damages for [the City Board’s] ongoing breach of its contractual obligations to pass through commensurate funding to [the Charter Schools] and its students in an open and transparent process,” which is “not a dispute resolvable through administrative remedies.” In any event, they argued, “the only remedy the ... State Board ... could provide—its own interpretation of [the City Board’s] related statutory obligations,” including the methodology applicable to funding of charter schools, had already been decided in City Neighbors. Thus, they asserted, to the extent the State Board “ever had ‘primary jurisdiction’ over its interpretation of [ED § 9-109] that jurisdiction has long been fully completed.”

With respect to the alternative relief requested, the Charter Schools asserted that the City Board’s motions to stay should be denied because its petition to the State Board was not asking the State Board to interpret the “true intent and meaning” of education law, but instead, it was requesting that the State Board “apply the education law, as already explained and interpreted, and incorporated into a contract, to a specific set of circumstances.” Moreover, they asserted that, because the State Board was not required to issue a declaratory ruling, if the motions to stay were granted, appellants could “be left indefinitely without any result.”

After a hearing on January 8, 2016, the circuit court issued a lengthy oral ruling from the bench. The court relied heavily on the City Neighbors opinion, stating that the following paragraph in the opinion was important:

Finally, perhaps in light of the fact that it was already dealing with three charter schools and that there were several others in the pipeline and that it was issuing a declaratory ruling, the Board noted that its opinions should be used as “guidance and direction” to other charter school applicants and local school systems “for the refinement of the working relationships on behalf of the public school children throughout this [S]tate.”

(quoting City Neighbors, 400 Md. at 839, 929 A.2d 113), The circuit court explained that this paragraph was important because it showed that the State Board understood that the methodology identified “should be used as guidance and direction” in future cases.

The court ultimately determined that City Neighbors “provided sufficient guidance” regarding the meaning of commensurate funding, including the “requisite factors to be considered, the data to be considered.” Under these circumstances, it concluded that the court was “no longer obliged to punt the issue to the expertise of the administrative body,” but rather, it was entitled “to decline to invoke primary jurisdiction.” Accordingly, the court denied the motion to dismiss.

After the circuit court ruled, the State Board dismissed the City Board’s petition, without prejudice. It noted that the circuit court had “asserted its jurisdiction” on the issue, and it did not serve the interests of conserving judicial (and quasi-judicial) resources to have parallel proceedings.

Subsequently, the City Board filed counterclaims against the Charter Schools. It stated that Baltimore City is the fourth largest school system in Maryland, serving 85,000 students in 186 schools and programs. Of those 186 schools, 84 are public charter schools, and approximately 16% of all students in public schools attend charter schools.

The counterclaim alleged that the City Board’s goals for schools had to “be carried out with limited resources that must be spread across a diverse population of students with varying needs,” and if “Charter Schools receive more than their legally required share, less money is available for students attending Traditional Public Schools.” The City Board asserted that Charter Schools had received services that exceed “the 2% administrative cost included in the funding formula,” and as a result, the Charter Schools had “received more funding than the Traditional Public Schools.” Accordingly, because the parties disputed “which services provided by the District Office are appropriately included in ‘Administrative Costs,’ ” the City Board sought a “declaratory judgment regarding which services provided by the District Office are appropriately included in the funding formula 2% line item for ‘Administrative Costs.’ ” The City Board also sought damages for breach of contract by the Charter Schools and unjust enrichment.

On April 18, 2016, a hearing was held on the Charter Schools’ motion to dismiss the counterclaims. At the hearing, the court questioned whether there was an administrative procedure pending, and it asked “what happened that causes you to rightfully be in my courtroom.” Counsel for the City Board responded:

I wish I was in front of you several months ago. I think in January we had a hearing on a motion to dismiss where we argued exactly what Your Honor is stating, the doctrine of primary jurisdiction that this case should be stayed in favor of the State Board ... making a determination of these issues and our motion was denied.

After further discussion regarding the procedural history of the case, and after a brief recess, the court noted that the City Board “would like to make an oral motion at this time.” Counsel for the City Board then moved to dismiss “on the basis that the appropriate tribunal or court or body to hear this matter is the State Board of Education.” Citing City Neighbors, counsel stated that the “case law is very clear that that body should be the first one to take up matters such as the ones that have been raised by the Plaintiff here relating to intricate, detailed, and important issues of public policy relating to education and educational funding.”

Counsel for the Charter Schools responded that the claim raised in the complaint was for breach of contract, and the resolution of such disputes are for the courts. Counsel asserted that the issue of commensurate funding had already been settled and affirmed by the courts, thus “satisfying the requirements of primary jurisdiction of letting the administrative agency have a crack at setting out the interpretation.”

The court ultimately granted the Charter Schools’ motion to dismiss the counterclaim seeking declaratory judgment, without prejudice. With respect to the other matters, however, it ruled that dismissal was not appropriate, and the action should be stayed “pending the matter be administratively reviewed before it comes to the [cjircuit [cjourt.” The court entered a written order to that effect.

On May 5, 2016, the Charter Schools filed this appeal seeking review of the court’s stay order.

DISCUSSION

The issue presented by the Charter Schools involves the exhaustion of administrative remedies. As the Court of Appeals has explained, when the General Assembly provides an administrative remedy and a judicial remedy to resolve a matter, the relationship between the remedies typically falls into one of three categories:

“[T]he administrative remedy may be exclusive, thus precluding any resort to an alternative remedy. Under this scenario, there simply is no alternative cause of action for matters covered by the statutory administrative remedy.
[T]he administrative remedy may be primary but not exclusive. In this situation, a claimant must invoke and exhaust the administrative remedy, and seek judicial review of an adverse administrative decision, before a court can properly adjudicate the merits of the alternative judicial remedy.
[T]he administrative remedy and the alternative judicial remedy may be fully concurrent, with neither remedy being primary, and the plaintiff at his or her option may pursue the judicial remedy without the necessity of invoking and exhausting the administrative remedy.”

United Ins. Co. of Am. v. Maryland Ins. Admin., 450 Md. 1, 14-15, 144 A.3d 1230 (2016) (quoting Prince George’s County, v. Ray’s Used Cars, 398 Md. 632, 644-45, 922 A.2d 495 (2007)). In the situation where there is no “specific statutory language indicating the type of administrative remedy, there is a rebut-table presumption that an administrative remedy was intended to be primary,” which means that “ ‘a claimant cannot maintain the alternative judicial action without first invoking and exhausting the administrative remedy.’ ” Id. at 15, 144 A.3d 1230 (quoting Zappone v. Liberty Life Ins. Co., 349 Md. 45, 63, 706 A.2d 1060 (1998)).

Primary jurisdiction applies “‘where the claim is initially cognizable in the courts but raises issues or relates to subject matter falling within the special expertise of an administrative agency.’ ” Luskin’s Inc. v. Consumer Prot. Div., 338 Md. 188, 195, 657 A.2d 788 (1995) (quoting Maryland-Nat’l Capital Park & Planning Comm’n v. Washington Nat’l Arena, 282 Md. 588, 602, 386 A.2d 1216 (1978)). In the situation where the administrative remedy is deemed to be primary, it generally “must be pursued and exhausted before a court exercises jurisdiction to decide the controversy.” Hubbard, 305 Md. at 786, 506 A.2d 625. Accord Arroyo v. Bd. of Educ. of Howard County, 381 Md. 646, 658, 851 A.2d 576 (2004) (primary jurisdiction applies where resolution of issues, under a regulatory scheme, are “ ‘placed within the special competence of an administrative body’ ”) (quoting United States v. Western Pacific R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)).

The Court of Appeals has held that the State Board has “primary jurisdiction over all State educational provisions.” Patterson Park, 399 Md. at 202, 923 A.2d 60. Given the “very nature of the administrative framework of the Education Article,” the General Assembly “meant to grant primary jurisdiction to a board of education in questions involving controversies and disputes that arise under provisions” of the Education Article. Arroyo, 381 Md. at 663, 851 A.2d 576. Accord Clinton v. Bd. of Educ. of Howard County, 315 Md. 666, 675-78, 556 A.2d 273 (1989) (where a claim requires the interpretation and application of provisions of the Education Article, the State Board has primary jurisdiction); Hubbard, 305 Md. at 788, 506 A.2d 625 (State Board had primary jurisdiction over question involving teacher collective bargaining given its visi-tatorial power to “decide all controversies and disputes” under the Education Article).

As indicated, the circuit court determined that the State Board has primary jurisdiction over issues involved in the Charter Schools’ breach of contract claim against the City Board, and therefore, it stayed the circuit court proceedings pending administrative review of the parties’ dispute (the “Stay Order”). Although the Charter Schools argue that the court’s ruling in this regard was erroneous because primary jurisdiction does not apply in this case, we must address first whether this case is properly before this Court, i.e., whether this Court has appellate jurisdiction over the case.

The parties do not seek a ruling on the issue whether the Stay Order is an appealable issue. This Court, however, must address appellate jurisdiction “even if the parties have overlooked the issue or would prefer an immediate appellate determination.” FutureCare NorthPoint, LLC v. Peeler, 229 Md.App. 108, 118, 143 A.3d 191 (2016). See also Renaissance Centro Columbia, LLC v. Broida, 421 Md. 474, 489, 27 A.3d 143 (2011) (court will consider issues of jurisdiction and exhaustion of an administrative remedy even though not raised by the parties). “ ‘Where appellate jurisdiction is lacking, the appellate court will dismiss the appeal on its own motion.’ ” Schuele v. Case Handyman and Remodeling Srvcs., 412 Md. 555, 565, 989 A.2d 210 (2010) (quoting Gruber v. Gruber, 369 Md. 540, 546, 801 A.2d 1013 (2002)).

“In Maryland, appellate jurisdiction, except as constitutionally created, is statutorily granted.” Id. As this Court recently explained: “Except in a case involving one of the narrow exceptions under [Md. Code (2013) ] § 12-303 [of the Courts & Judicial Proceedings Article], the collateral order doctrine, or Rule 2-602(b), a party may appeal only from a final judgment on the merits.” FutureCare, 229 Md. App. at 118, 143 A.3d 191. We will address first whether the Stay Order is a final judgment, and then we will address the Charter School’s claim that the order is appealable pursuant to the collateral order doctrine.

“[T]o constitute a final judgment, a trial court’s ruling ‘must either decide and conclude the rights of the parties involved or deny a party the means to prosecute or defend rights and interests in the subject matter of the proceeding.’ ” Md. Bd. of Physicians v. Geier, 451 Md. 526, 545, 154 A.3d 1211, 2017 WL 281914 (2017) (quoting Schuele, 412 Md. at 565, 989 A.2d 210). Here, the Stay Order did not conclude the rights of the parties or adjudicate all of the claims in the action. Thus, the issue is whether the Stay Order denied the Charter Schools the ability to litigate its breach of contract claim and resulted in the Charter Schools being put effectively out of court. See Schuele, 412 Md. at 571, 989 A.2d 210 (an order compelling arbitration of a controversy is appealable as a final judgment because it “ ‘has the effect of putting the parties out of court’ ”) (quoting Town of Chesapeake Beach v. Pessoa Constr. Co., 330 Md. 744, 750-53, 625 A.2d 1014 (1993)).

Here, City Board argues that the Stay Order did not have the effect of putting the Charter Schools out of court because it merely “directed that the parties first go to the State Board,” which is “a jurisdictional issue regarding which body should hear threshold issues in the case in the first instance.” We agree. Once the State Board makes a determination on the commensurate funding issues presented, the breach of contract case can return to the circuit court and proceed on the merits. The Stay Order effectively operates as a postponement of trial, not as an order resulting in the Charter Schools being put effectively out of court.

Other courts have reached a similar conclusion. For example, in Crystal Clear Commc’ns, Inc. v. SW Bell Tel. Co., 415 F.3d 1171, 1173 (10th Cir. 2005), a federal trial court issued an order similar to the one here, staying a lawsuit filed by several payphone providers against Southwestern Bell Telephone Company, pending the resolution of certain issues by federal and state agencies. The United States Court of Appeals for the Tenth Circuit noted that, although a decision to stay litigation ordinarily does not constitute a final judgment, there is an exception for a stay order that puts a party “effectively out of court.” Id. at 1175 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.11, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). The Court held, however, that the order in that case, staying the proceedings in court pending resolution of certain issues by the agencies pursuant to the primary jurisdiction doctrine, with contemplation of return to court, was not a final decision. Id. at 1176-78.

That is not to say that a stay order pending administrative review can never qualify as a final judgment. In Occidental Chem. Corp. v. Louisiana Pub. Serv. Comm’n, 810 F.3d 299, 305, 307 (5th Cir. 2016), the United States Court of Appeals for the Fifth Circuit addressed whether an order by a federal court indefinitely staying proceedings to allow the Federal Energy Regulatory Commission to act on an administrative complaint was a final judgment when the court retained jurisdiction for a later determination on the merits. The Fifth Circuit held that the order in that case “functioned as a final decision” because it resulted in Occidental being “effectively out of court” for a protracted and indefinite period, and therefore, the order was appealable.

Here, there is no indication that the State Board will delay in deciding the commensurate funding issue. Although the State Board declined to weigh in on the issue while the matter was simultaneously being pursued in court, that reasoning no longer is applicable. Because there is no indication that there will be a substantial delay in obtaining an administrative ruling, if there is a proper request, the Stay Order does not place the Charter Schools “effectively out of court.” The Stay Order merely postpones resolution of the contract case pending guidance from the State Board on the commensurate funding issues. Under these circumstances, the Stay Order is not a final judgment.

We thus turn to the Charter School’s argument that the Stay Order is appealable under the collateral order doctrine. This doctrine is “ ‘based upon a judicially created fiction, under which certain interlocutory orders are considered to be final judgments, even though such orders clearly are not final judgments.’ ” Geier, at 546, 154 A.3d 1211 (quoting Dawkins v. Balt. City Police Dep’t, 376 Md. 53, 64, 827 A.2d 115 (2003)). Application of the doctrine “ ‘is very limited’ ” Schuele, 412 Md. at 572, 989 A.2d 210 (quoting Walker v. State, 392 Md. 1, 15, 895 A.2d 1024 (2006)), and it “should be applied sparingly in only the most extraordinary circumstances.” Id.

To be appealed under the collateral order doctrine, an order must meet the following four requirements: “ ‘(1) conclusively determines the disputed question, (2) resolves an important issue, (3) resolves an issue that is completely separate from the merits of the action, and (4) would be effectively unreviewable if the appeal had to await the entry of a final judgment.’ ” Id. (quoting Walker, 392 Md. at 15, 895 A.2d 1024). These requirements are “strictly applied.” Dawkins, 376 Md. at 59, 827 A.2d 115.

The Charter Schools contend that the Stay Order meets each of the four requirements. We disagree.

Initially, the Stay Order does not meet the third requirement, that it resolve an issue separate from the merits of the action. Indeed, other courts have found that “the issues involved in a determination of primary jurisdiction are ‘inextricably bound up’ with a determination of the merits” of a case. Crystal Clear, 415 F.3d at 1179-80 (quoting Richman Bros. Records, Inc. v. U.S. Sprint Commc’ns Co., 953 F.2d 1431, 1447 (1991)). As the court in Crystal Clear explained:

The entire purpose of the primary jurisdiction doctrine is to allow agencies to render opinions on issues underlying and related to the cause of action. See United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). Moreover, in order to determine whether the doctrine of primary jurisdiction was implicated in this case, the district court was required to give preliminary consideration to plaintiffs’ claims to determine the extent to which they fell under the jurisdiction of the FCC and OCC. See Delta Traffic Serv., Inc. v. Occidental Chem. Corp., 846 F.2d 911, 914 (3d Cir.1988) (“Only after [the district court] had ascertained the nature of the claim and related defenses could it know whether it needed to request the expert and specialized knowledge of the [agency] as a preliminary step in the resolution of this matter.” (quotation omitted)). In particular, the district court’s decision whether to invoke primary jurisdiction required it to consider whether the issues of fact in the case: (1) are not within the conventional experience of judges; (2) require the exercise of administrative discretion; or (3) require uniformity and consistency in the regulation of the business entrusted to a particular agency. See Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1377 (10th Cir.1989). These issues are all highly dependent on the specific allegations in plaintiffs’ complaint and required the district court to examine factual and legal issues underlying the dispute. The parties’ briefs on appeal, filled with detailed factual and legal arguments regarding plaintiffs’ claims, further underscore the impropriety of reviewing the district court’s stay order prior to final judgment.

Id. at 1179 (parallel citations omitted). Accord Beach TV Cable Co. v. Comcast of Florida/Georgia, LLC, 808 F.3d 1284, 1292 (11th Cir. 2015) (order staying action pending resolution of issue by an administrative agency, pursuant to the primary jurisdiction doctrine, is not appealable under the collateral order doctrine because “decision whether to refer a case for administrative action was sufficiently bound up with the merits”).

We agree with this reasoning. A trial court’s determination whether the primary jurisdiction doctrine is applicable “is not sufficiently separable from the cause of action” to be appealable under the collateral order doctrine. Id. at 1291.

The Charter Schools contend, however, that Crystal Clear “runs counter to established Maryland law” and “cannot constitute even persuasive authority.” We disagree.

County Comm’rs of Frederick County v. Schrodel, 320 Md. 202, 577 A.2d 39 (1990), upon which the Charter Schools rely, is distinguishable. In that case, Frederick County brought an eminent domain action to acquire property for use as a landfill. Id. at 204, 577 A.2d 39. The circuit court granted the Schrodels’ motion for a postponement of the condemnation trial on the merits, enjoining the condemnation action until the County obtained a Maryland Department of the Environment permit to construct a landfill on the property. Id. at 210-12, 577 A.2d 39.

The Court of Appeals concluded that the order was an appealable interlocutory order under the collateral order doctrine because the order “ha[d] the effect of blocking the County from prosecuting its condemnation action against the Schrodels unless and until it obtained] a state permit to construct the landfill on the property,” thereby satisfying “all four requirements of the collateral order doctrine.” Id. at 212, 577 A.2d 39. First, the Court noted that the order “conclusively determined that the County must wait until it receives a permit from the Maryland Department of the Environment before it can go to trial with its condemnation case.” Id. Second, “the issue of whether a court can lawfully impose such a condition on the government’s power to acquire property by condemnation is clearly important.” Id. Third, “the question of whether the County can be required to obtain the permit before having a trial is obviously distinct from the trial itself.” Id. And fourth, the Court stated that, “if not appealable until the trial’s conclusion, the claim that the County’s right to condemn cannot be conditioned on first obtaining all necessary permits would irretrievably be lost,” as the “government already will have had to comply with a possibly unlawful condition.” Id.

The Court noted that a stay order ordinarily is not appeal-able. Id. at 213, 577 A.2d 39. In holding, however, that the interlocutory order in that case was appealable, the Court noted the unique circumstances of that case, stating:

The circuit court granted no ordinary postponement of the trial. Not only is the length at least eighteen months, but it is certain that there will never be a trial if the County fails to obtain the permit. The order in this case assures that if the County does get the permit, only then can it prepare the property as a landfill. An important government prerogative has been delayed or defeated because of an allegedly unlawful condition. The vast majority of postponement orders, in contrast, merely require a party to wait longer for trial.

Id. at 214, 577 A.2d 39. The Court emphasized “that this is a case where ‘our holding concerning appealability goes no further than the circumstances presented in this case.’ ” Id. (quoting Public Service Comm’n v. Patuxent Valley, 300 Md. 200, 210, 477 A.2d 759 (1984)).

This case is very different from Schrodel. Initially, as previously explained, unlike the issue of whether a permit is required before prosecuting a condemnation action, the issue of primary jurisdiction is “bound up” with the merits of the action. Thus, although the third requirement of the collateral order doctrine was satisfied in Schrodel, it is not satisfied in this case. Moreover, the Stay Order here, unlike the order in Schrodel, is more akin to a mere postponement of trial. Once the State Board makes a determination on the commensurate funding issue, a determination entrusted to the State Board, Charter Schools can return to the circuit court and proceed on the merits of its breach of contract claim. The Stay Order here is not appealable under the collateral order doctrine.

Accordingly, because the Stay Order is not a final judgment, and it is not appealable under the collateral order doctrine, we must dismiss the appeal.

APPEAL DISMISSED. COSTS TO BE PAID BY APPELLANTS.

      . Appellants are operators of the following Baltimore City charter schools: Afya Baltimore, Inc,, Baltimore International Academy Inc., Baltimore Montessori, Inc., City Neighbors Charter School, Inc., City Neighbors Hamilton, Inc., City Neighbors High School, Inc., Creative City Public Charter School Foundation, Inc., Empowerment Center, Inc,, Experiential Environmental Education, Inc., Kipp Baltimore, Inc., Patterson Park Public Charter School, Inc., Southwest Baltimore Charter School, Inc., and Monarch Academy Baltimore Campus, Inc. Appellants have provided in the record extract one complaint, as a representative complaint, stating that "identical versions were filed in various actions that were subsequently consolidated.” Appellees have not disputed this representation.

      . The schools involved were City Neighbors Charter School and Patterson Park Public Charter School, Inc., Baltimore City schools who are appellants in this appeal, as well as Lincoln Public Charter School, Inc., a Prince George’s County school. City Neighbors, 400 Md. at 331, 929 A.2d 113.

      . In Baltimore City Bd. of School Comm'rs v. City Neighbors Charter School, 400 Md. 324, 338, 929 A.2d 113 (2007), the Court of Appeals explained the 2% deduction, as follows:
      Recognizing that there were certain support functions, such as data collection and the development of public charter school policies, that could be performed only by the central office of the local school system, [the State Board] directed that the total average per pupil amount be reduced by 2% as a reasonable cost of performing those functions.

      . Appellants represent, and the record reflects, that the complaints were consolidated by the time the stay order that is the subject of this appeal was issued.

      . The contract defines "Title 9” as "the Public Charter School Act of 2003, Title 9 of the Education Article of the Maryland Annotated Code ('Maryland Public Charter School Program’).”

      . The State Board further stated that the petition for declaratory ruling failed to present any "concrete facts from which [it] could declare the law.”

      . The judge was not the same judge that had ruled in January that the court would not invoke the doctrine of primary jurisdiction and dismiss the complaint.

      . The City Board subsequently filed a second petition with the State Board seeking a declaratory ruling that it had provided, and continued to provide, "cash and services to all of its charter schools ... that amount to more than commensurate funding.” It also requested that the State Board “raise the 2% cap” or "clarify that the 2% cap covers only a limited bundle of services,” After the Charter Schools opposed the petition, noting this appeal, the State Board dismissed the second petition "because the case remains within the jurisdictional purview of tire courts."

      . The State Board exercises that authority by adjudicating appeals from local boards and by adjudicating petitions for declaratory rulings. Dorchester County v. Hubbard, 305 Md. 774, 788-90, 506 A.2d 625 (1986). See City Neighbors, 400 Md. at 346, 929 A.2d 113 ("Declaratory rulings are thus a permissible mechanism by which [the State Board] may exercise its statutory authority to ‘explain the true intent and meaning’ of the public school laws and decide ‘controversies and disputes’ under those laws.”).

      . The City Board did file, prior to filing its brief, a motion to dismiss the appeal on the ground that the Stay Order was not an appealable order. This Court denied the motion, "with leave to seek that relief in Appellee's brief.” The City Board did not, however, include a motion to dismiss in its brief or request a ruling on whether the Stay Order was an appealable order, and the issue was not raised during oral argument. After argument, this Court requested the parties to address whether the Stay Order was an appealable order. The City Board filed a memorandum stating its view that the Stay Order was not an appeal-able order, but asking the Court, "in the interest of judicial economy and jurisdictional clarity,” to rule on the merits and hold that the State Board had primary jurisdiction over the dispute.

      . The other two exceptions are not applicable here, and the Charter Schools do not argue to the contrary.

      . As the Charter Schools acknowledge, they can file a "petition for declaratory ruling by the State Board on the interpretation of a public school law or regulation of the State Board that is material to an existing case or controversy.” Code of Maryland Regulations 13A.01.05,02(D). The issue in this case, the interpretation of "commensurate” funding, appears to be encompassed by this provision.

      . Although our analysis could end at this point, we further note that the Stay Order does not meet the fourth requirement, that it be “effectively unreviewable” on appeal. This requirement is met in " ‘very few [and] extraordinary situations. Otherwise, ... there would be a proliferation of appeals under the collateral order doctrine.’ ” Stephens v. State, 420 Md. 495, 505, 24 A.3d 105 (2011) (quoting In re: Foley, 373 Md. 627, 636, 820 A.2d 587 (2003)). Here, after the State Board has determined the commensurate funding issue, and the stay is lifted and the breach of contract suit is resolved, the Charter Schools can challenge the circuit court’s ruling on appeal.