# Rounds v. M-NCPPC

> Court of Appeals of Maryland · January 29, 2015

URL: https://www.frixlaw.com/law-library/cases/2775040

## Case

- **Court:** Court of Appeals of Maryland
- **Decided:** January 29, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Greene
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2775040

## How later opinions describe it (automated extraction)

- holding that “only the state law claims . . . which were expressly alleged [in the prior federal suit] may be tolled”

## Opinion text

William Rounds, et al. v. Maryland-National Capital Park and Planning Commission, et al.,
No. 19, September Term 2014, Opinion by Greene, J.

LOCAL GOVERNMENT TORT CLAIMS ACT – NOTICE REQUIREMENT – CJP
§ 5-304

Generally, the notice requirement of the Local Government Tort Claims Act (the “LGTCA”)
applies to constitutional and non-constitutional based claims for unliquidated damages
resulting from the tortious acts or omissions by local governments or their employees
committed within the scope of employment.

JOINDER – NECESSARY PARTIES

To excuse non-joinder of necessary parties, a plaintiff must demonstrate that (1) the non-
joined party clearly had knowledge of the pending litigation, and (2) the non-joined party
must have purposefully declined to join the litigation, despite the non-joined party’s ability
to join. In a case involving an easement dispute, adjacent landowners are necessary parties
and a mere allegation by the plaintiffs that the adjacent landowners will not dispute the
outcome of litigation is insufficient to excuse their participation in the lawsuit.

STATUTE OF LIMITATIONS – DISCOVERY RULE – INQUIRY NOTICE

In applying the discovery rule, the court’s inquiry must focus on when the plaintiff
discovered certain facts which would be sufficient to provide notice of the injury. When a
statute of limitations defense is raised at the motion to dismiss stage, review is limited to the
facts as alleged in the complaint. Where a plaintiff specifically alleged the date on which
they became aware of their injury, such date falls within the applicable statute of limitations,
and allegations of the complaint do not demonstrate the plaintiff’s knowledge of facts which
would provide notice of the injury at any earlier date, granting the motion to dismiss on
statute of limitations grounds is improper.

STATUTE OF LIMITATIONS – TOLLING – 28 U.S.C. § 1367

28 U.S.C. § 1367(d) serves to toll the statute of limitations for state law claims that were
initially filed in federal court, but were subsequently dismissed for lack of jurisdiction. The
statute tolls only those claims that were expressly asserted in the initial federal court case.
Therefore, the statute of limitations will not be tolled for a newly asserted claim in state
court.
Circuit Court for Montgomery County
Case No. 350954
Argued: November 12, 2014

IN THE COURT OF APPEALS
OF MARYLAND

No. 19

September Term, 2014
_____________________________________

WILLIAM ROUNDS, et al.

v.

MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION, et al.
_____________________________________

Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
McAuliffe, John F. (Retired, Specially
Assigned),

JJ.
___________________________________

Opinion by Greene, J.
___________________________________

Filed: January 29, 2015
At its core, this lawsuit concerns the existence of a historic “Farm Road,” the origins

of which date back well over a century. While the history of Farm Road may lie in antiquity,

it has become the focal point of much contention in the past decade. Indeed, Farm Road has

been the subject of several lawsuits, in both the state and federal courts of Maryland,1 an

independent investigation,2 and numerous news reports and articles.3 The instant case,

arising out of an appeal to the Court of Special Appeals, requires this Court to consider the

procedural difficulties which have otherwise prevented Petitioners from reaching some

resolution on the merits of their suit.

FACTUAL AND PROCEDURAL HISTORY

Parties Involved

Petitioners, William Rounds, Marvin Gaither, Clifton Lee, James Bell, Bernice

1
See Awkard v. Md.-Nat’l Capital Park & Planning Comm’n, RWT-08-1562, 2011
WL 2896005 (D. Md. July 15, 2011); Bacon v. Arey, 203 Md. App. 606, 40 A.3d 435 (2012);
Nouvet v. Arey, et al., case no. 255120V, 2006 WL 6041009 (Md. Cir. Ct. Dec. 9, 2006) aff’d
No. 1832 (Md. Ct. Spec. App. July 16, 2009).
2
See B REGMAN, B ERBERT, S CHWARTZ & G ILDAY, LLC, R EPORT OF INVESTIGATION
FOR THE M ONTGOMERY C OUNTY P LANNING B OARD M ARYLAND-N ATIONAL C APITAL P ARK
AND PLANNING COMMISSION (D ec. 5, 2013) available at
http://ww w .m ontgom eryplanningboard.org/department/new s_releases/documents/
dellabrooke_final_report.pdf. This report, authored by Douglas Bregman with the assistance
of Kevin Barker, among others, provides an exceptional analysis of many of the substantive
issues underlying this matter. See id.
3
See, e.g., Bill Turque, Nothing Improper Found in Road Fight, The Washington
Post, Dec. 12, 2013, at B03; WUSA9, Police Called to Sandy Spring’s Farm Road (Oct. 24,
2013) available at http://www.wusa9.com/story/news/local/2013/12/18/4102725/.
Martin, and Robert4 and Michelle Awkard, filed suit in the Circuit Court for Montgomery

County against Respondents, the Maryland-National Capital Park and Planning Commission

(the “Commission”), Macris, Hendricks, and Glascock, P.A. (“MHG”), Douglas Riggs

(“Riggs”), Warren Brown (“Brown”), Paul and Sara Arey (the “Areys”), Charles and Marilyn

Mess (the “Messes”), Audrey Hill, and Milton Johnson, seeking declaratory, compensatory,

statutory, and punitive relief. Petitioners request that this Court review the Circuit Court’s

decision, and the intermediate appellate court’s judgment to affirm the dismissal of the

Amended Complaint against the Respondents.

Factual Background

According to their Amended Complaint, Petitioners own properties located along

Farm Road and a “10 Foot Right-of-Way” (collectively the “Farm Road”), which together

provide the only means of access to Petitioners’ properties. The properties are located on a

tract of land in Sandy Spring, Maryland, bordered roughly by Goldmine Road to the north,

Brooke Road to the south, and Chandlee Mill Road to the east. Petitioners allege that Farm

Road runs north and south between Goldmine Road and Brooke Road through the center of

the tract.

Petitioners aver that Respondent Brown began developing the “Dellabrooke”

subdivision along with “Dellabrooke Forest” (collectively the “Dellabrooke subdivisions”)

4
Robert Awkard passed away prior to this Court’s grant of the Petition for Writ of
Certiorari.

2
on the northern end of Farm Road in 1994. During this development, Brown is alleged to

have eliminated Farm Road’s access to Goldmine Road in the north, as well as created a

“fictional” conservation easement5 to be included in subdivision plans that were to be

submitted to the Commission. In preparation of the documents for submission, Brown

retained MHG to complete land surveying work. Riggs was the MHG surveyor primarily

responsible for this work. Acting at the direction of Brown, Riggs is alleged to have falsely

omitted Farm Road from surveying documents as well as included a “fictional” conservation

easement, which resulted in the Commission’s deletion of Farm Road from state property

maps. These documents–namely Plat 21707 for the Dellabrooke subdivision–were approved

by the Commission on August 3, 2000.

The Areys purchased a portion of the fictional easement in order to develop the

property in 2003. Prior to their purchase, the Areys allegedly worked with Brown in order

to eliminate Farm Road’s northern access to Goldmine Road as well as eliminate Farm Road

in its entirety. In doing so the Areys would increase the value of the property they

subsequently purchased from Brown.

Apart from the Commission’s approval of the fraudulent Dellabrooke subdivision

plans, Petitioners contend that the Commission has improperly refused to issue addresses to

5
Petitioners contend that Brown did not adhere to the requirements of establishing a
conservation easement. The alleged purpose behind the creation of the “fictional” easement
was to “increase the number of allowable subdivision lots,” which would increase profits.

3
the Farm Road properties, despite having issued addresses to these properties previously.6

Upon learning that their addresses were no longer recognized, Petitioners made several

attempts to receive recognition of their addresses.7 Mr. Rounds visited the Commission on

November 7, 2007, after having been unable to meet with a member of the Commission the

previous day. The Commission, however, refused to issue Petitioners addresses noting that

there were errors on a 1966 Tax Map upon which Mr. Rounds had relied. The Commission

directed Mr. Rounds to the Maryland Department of Planning (“MDP”) in order to have the

1966 Tax Map corrected if he sought addresses. Following the Commission’s suggestion,

Mr. Rounds met with the MDP, which ultimately issued a letter to the Commission on

November 14, 2007, confirming that the map had been corrected “to reflect the ‘Farm Road’

and parcel locations.” Upon returning to the Commission, Mr. Rounds, accompanied by Mr.

Gaither, was once again unable to obtain addresses. While Petitioners contend the

Commission originally denied Petitioners’ request on November 7, 2007, citing errors in the

1966 Tax Map, the Commission “now claims that it cannot issue [] addresses because

6
According to Petitioners’ Brief before this Court, the Commission ultimately issued
Petitioners addresses during the pendency of litigation. Pet’rs’ Br. 9 n.7 (“On July 18, while
the [Petitioners’] direct appeal was pending in the Court of Special Appeals, the Commission
issued addresses to [Petitioners], but refused to recognize the existence of Farm Road.
Despite now having addresses, the Landowners have not obtained the full relief sought in this
case because the failure to recognize the existence of Farm Road has prevented them from
using and enjoying their properties had the Commission maintained or provided addresses
in 2007.”).
7
To be clear, only Petitioners Rounds and Gaither are noted as meeting with the
Commission. Furthermore, only Rounds is noted as having requested an address.

4
[Petitioners] have not presented documentation proving their right to access their property.”

As part of the Commission’s allegedly “ever-changing, ad hoc” reasoning, Petitioners

contend that the Commission now explains that it is unable to issue addresses as a result of

the neighboring landowners’ failure to agree as to the existence or location of Farm Road.

In an effort to resolve the dispute, the then acting Montgomery County Executive

issued a letter to the Commission urging the Commission to recognize Farm Road.8 The

letter states, in relevant part:

Over the past several months, I have received extensive correspondence and
inquires about the Farm Road. . . . I hope that you are able to recognize the
Farm Road as the private right-of-way that it seems to be and provide the
property owners with their rightful recognition.

Petitioners allege that the Commission, citing to the reasons noted above, did not waver in

its decision to refuse to issue Petitioners addresses.

Following their failed attempts at obtaining addresses, Petitioners determined the

present suit was necessary and, in an effort to comply with the notice requirement of the

Local Government Tort Claims Act (“LGTCA”), Md. Code (1987, 2013 Repl. Vol., 2014

Supp.), § 5-301 et seq. of the Courts & Judicial Proceedings Article (“CJP”), sent notice of

8
The Amended Complaint does not indicate who contacted the County Executive.
Nor does the Complaint indicate when contact was made. Rather, the Amended Complaint
indicates that the County Executive, in response to inquiries he received “over the past
several months,” sent the Commission a letter concerning Farm Road in February of 2008.
To be sure, the letter from the County Executive does not indicate who the aggrieved
landowners may be, nor does it speak to any future litigation.

5
their claim on June 10, 2008 and July 21, 2008.9

Procedural Background

On June 16, 2008, Petitioners filed suit in the United States District Court for the

District of Maryland. Subsequently, Petitioners’ suit was dismissed on July 15, 2011 for

failure to exhaust state remedies. Awkard v. Maryland-Nat’l Capital Park & Planning

Comm’n, RWT-08-1562, 2011 WL 2896005 (D. Md. July 15, 2011).

Petitioners filed the instant suit in the Circuit Court for Montgomery County on

August 11, 2011. The Amended Complaint, filed on October 17, 2011, includes the

following claims as to the Commission: Count I (substantive due process violation), Count

II (procedural due process violation), Count III (regulatory taking violation), and Count IV

(declaratory judgment that the Commission exceeded its authority)10 (collectively the “state

9
The June 10, 2008 letter was sent on behalf of Petitioners Robert and Michelle
Awkard, Bernice Martin, James Bell, Clifton Lee, and Marvin Gaither, collectively
represented by Temple Law Offices at the time. The June letter was addressed to the County
Executive as well as the Commission. The July 21, 2008 letter was sent on behalf of
Petitioner William Rounds, represented by McDermott Will & Emory LLP at the time. The
July letter was addressed to the County Executive. We note that CJP § 5-304(c)(4) requires
that notice be given “to the corporate authorities of the defendant local government.” In the
present case, there is no contention that the County Executive is the “corporate authority” of
the Commission.
10
Although Count IV is titled “Declaratory Judgment,” Petitioners seek unliquidated
damages. Petitioners did not ask the court explicitly in Count IV to declare Petitioners’ rights
or interests in Farm Road. Nor did Petitioners ask the court to enjoin the Commission from
acting in a certain manner. To be certain, our decision in the present case does not imply that
the LGTCA applies to declaratory actions; indeed, such a holding would be contrary to the
language of the statute. Count IV, however, seeks compensatory, statutory, and punitive
damages. Therefore, Count IV (unlike Counts V-XI which request a declaration as to
(continued...)

6
constitutional counts”). As to all Respondents, Petitioners assert Counts V-XI (declaratory

judgment that Petitioners have an easement to use Farm Road) (collectively the “easement

claims”). With respect to the Commission, MHG, Riggs, Brown, and the Areys, the

Amended Complaint contains Count XII (wrongful interference), and Count XIII (slander

of title). The Respondents moved separately to dismiss the Amended Complaint. The

Circuit Court granted the motions to dismiss as follows:

(1) Counts I-IV (the state constitutional counts), with prejudice, against the
Commission for failure to give proper notice under the LGTCA;

(2) Counts V-XI (the easement claims), without prejudice, as to the
Commission, the Areys, the Messes, Hill, and Johnson, for failure to
join necessary parties;

(3) Counts V-XI (the easement claims), with prejudice, as to MHG, Riggs,
and Brown, as none owned property adjacent to Farm Road and were,
therefore, not interested parties; and

(4) Counts XII and XIII, with prejudice, as to the Commission, MHG,
Riggs, Brown, and the Areys, as time-barred, or alternatively, with
respects to MHG and Riggs, because no duty was owed to Petitioners.11

On appeal, the Court of Special Appeals upheld the Circuit Court’s dismissal of the

10
(...continued)
Petitioners’ interests in Farm Road) falls under the purview of the LGTCA.
11
There is no indication in the Circuit Court’s order as to why Counts XII and XIII
were disposed of on statute of limitations grounds and not the LGTCA notice requirement
grounds as against the Commission. Counts XII and XIII both seek unliquidated damages
against the Commission, among others. Therefore, the LGTCA would apply to the extent
those counts were brought against the Commission. Indeed, the Commission, in its motion
to dismiss, requested that the state constitutional counts and Counts XII-XIII be dismissed
as a result of Petitioners’ failure to comply with the LGTCA.

7
action. Rounds v. Md.-Nat’l Capital Park & Planning Comm’n, 214 Md. App. 90, 75 A.3d

987 (2013). We subsequently granted Petitioners’ certiorari request, Rounds v. Md.-Nat’l

Capital Park & Planning Comm’n, 436 Md. 327, 81 A.3d 457 (2013), to answer the

following questions, which we have rephrased for clarity:

(1) Are Petitioners, in seeking redress from alleged local government
violations of the state constitution, required to comply with the strict notice
requirements of the LGTCA?

(2) Did the Court of Special Appeals properly uphold the trial court’s dismissal
of Petitioners’ easement claims for a failure to join necessary parties, despite
Petitioners’ contention that “adjacent property owners have agreed not to
contest the relief sought”?

(3) Did the Court of Special Appeals err in its factual determination that the
Petitioners failed to file Counts XII and XIII within the Statute of Limitations?

For the reasons stated below, we answer each of the questions in the affirmative.

DISCUSSION

I. Standard of Review

This Court reviews the grant of a motion to dismiss for legal correctness. Patton v.

Wells Fargo Financial Md., Inc., 437 Md. 83, 95, 85 A.3d 167, 173 (2014); Heavenly Days

Crematorium, LLC v. Harris, Smariga & Assocs., Inc., 433 Md. 558, 568, 72 A.3d 199, 204-

05 (2013). As we noted previously,

On appeal from a dismissal for failure to state a claim, we must assume the
truth of, and view in a light most favorable to the non-moving party, all well-
pleaded facts and allegations contained in the complaint, as well as all
inferences that may reasonably be drawn from them, and order dismissal only
if the allegations and permissible inferences, if true, would not afford relief to
the plaintiff, i.e., the allegations do not state a cause of action for which relief

8
may be granted. We must confine our review of the universe of facts pertinent
to the court’s analysis of the motion to the four corners of the complaint and
its incorporated supporting exhibits, if any.

Shailendra Kumar, P.A. v. Dhanda, 426 Md. 185, 193, 43 A.3d 1029, 1033 (2012) (quoting

Parks v. Alpharma, Inc., 421 Md. 59, 72, 25 A.3d 200, 207 (2011)).

II. COUNTS I-IV

The intermediate appellate court upheld the Circuit Court’s dismissal of Counts I-IV

against the Commission on the grounds that Petitioners failed to comply with the LGTCA

notice requirement, CJP § 5-304.12 Petitioners challenge the reasoning of the courts below

and argue that the LGTCA notice requirement is inapplicable to violations of the state

constitution. As discussed in greater detail below, we hold that, generally, the LGTCA

notice requirement applies to both state constitutional and non-constitutional tort claims for

unliquidated damages.13 Moreover, we hold that the Circuit Court was well within its

12
The Court of Special Appeals limited its holding to suits brought against the
Commission. See Rounds, 214 Md. App. at 107 n.10, 75 A.3d at 997 n.10 (“We do not
decide whether the LGTCA notice requirement would apply where a plaintiff sues a different
local government for a state constitutional tort.”) (emphasis added).
13
We note that a cause of action for damages may not lie for all violations of the state
constitution. See Dipino v. Davis, 354 Md. 18, 50 n.7, 729 A.2d 354, 371 n.7 (1999) (“We
do not mean in any way to suggest that an action for damages lies for the violation of all
provisions of the Constitution or Declaration of Rights; it may or may not, but that is not
before us in this case.”) (emphasis in original). Where a cause of action for damages exists
and a plaintiff seeks unliquidated damages for the “tortious acts or omissions” of a local
government and/or employee acting within the scope of employment, however, the LGTCA
notice requirement applies.
As in the present case, where a local government has been sued for violations of
citizens’ constitutional rights, under Maryland common law “there is ordinarily no local
(continued...)

9
discretion to conclude that no good cause existed to excuse Petitioners’ failure to comply

with the notice requirement.

At the outset, we emphasize what is not before us in the present case. Petitioners

have not argued, before this Court, that they actually complied with the notice requirement

of the LGTCA. Moreover, although raised in the Circuit Court below, no issue has been

raised by Petitioners as to whether they have substantially complied with the notice

requirement of the LGTCA. Instead, this Court is asked to resolve whether Petitioners, in

bringing an action against the Commission for alleged violations of the state constitution,

were required to comply with the LGTCA notice requirement. With respect to whether

Petitioners have demonstrated good cause to excuse their failure to comply, we limit our

review to whether the Circuit Court abused its discretion in finding that no good cause

existed.

Statutory Scheme

A brief overview of the LGTCA itself is appropriate. As this Court previously

explained in Ennis v. Crenca, 322 Md. 285, 291, 587 A.2d 485, 488 (1991):

The Local Government Tort Claims Act was passed in response to a perceived

13
(...continued)
government immunity.” Ashton v. Brown, 339 Md. 70, 102, 660 A.2d 447, 463 (1995)
(citations omitted) and cases cited therein. As we explained in Dipino, “sitting atop [the
principles of immunity] is [the] LGTCA.” 354 Md. at 49, 729 A.2d at 370. As discussed
infra, where a plaintiff maintains an action against a local government or its employees (i.e.
where the local government has no immunity), the LGTCA affects the allocation of financial
liability between the local government and its employees.

10
insurance crisis plaguing counties, municipalities and their employees. The
legislative history of the Act reflects the General Assembly’s concern for the
impact of increased law suits on the incentive of public employees and
officials to do their jobs to the best of their abilities.

In order to address these concerns, the LGTCA, among other things, acts to limit the

designated local governments’14 financial liability as well as to provide the employees of

local governments certain protections from damages.

Where an employee of a local government is sued, the LGTCA affords the employee

limited protections. First, the Act provides that “[e]ach local government shall provide for

its employees a legal defense in any action that alleged damages resulting from tortious acts

or omissions committed . . . within the scope of employment.” CJP § 5-302(a). Second,

where a plaintiff prevails on his or her claim, the LGTCA provides that “a person may not

execute against an employee on a judgment rendered for tortious acts or omission committed

. . . within the scope of employment [and without malice].” CJP § 5-302(b). Instead, the

14
The LGTCA applies to “local governments” as defined in CJP § 5-301. While this
includes governmental entities perhaps colloquially thought of as “local governments,” such
as Montgomery County or Prince George’s County, § 5-301 also includes in its scope
governmental entities such as the Commission, the Baltimore City Police Department, the
Washington Suburban Sanitary Commission, and the Enoch Pratt Free Library. See Balt.
Police Dep’t v. Cherkes, 140 Md. App. 282, 322, 780 A.2d 410, 433-34 (2001) (explaining
that the definition of “local government” under the LGTCA includes entities, “many of
which are not local governments for purposes other than the LGTCA. (For example, the
LGTCA includes among local governments the Maryland–National Capital Park and
Planning Commission; the Washington Suburban Sanitary Commission; the Enoch Pratt Free
Library or Board of Trustees of the Enoch Pratt Free Library; Housing Authorities created
under Article 44A of the Maryland Code; the Baltimore Metropolitan Council, and the
Howard County Mental Health Authority.)”).

11
“local government shall be liable for any judgment against its employee for damages

resulting from tortious acts or omissions committed by the employee within the scope of

employment[.]” CJP § 5-303(b)(1). If the employee acts with malice, however, “[a]n

employee shall be fully liable” and “the local government may seek indemnification for any

sums it is required to pay[.]” CJP § 5-302(b). In other words, the employee would be liable

for any amount in excess of the local government’s liability, which is limited by CJP § 5-303.

The effect of the LGTCA is to “provide a remedy for those injured by local government

officers and employees, acting without malice in the scope of their employment, while

ensuring that the financial burden of compensation is carried by the local government

ultimately responsible for the public officials’ acts.” Ashton v. Brown, 339 Md. 70, 108, 660

A.2d 447, 466 (1995).

With respect to only these protections, the LGTCA makes clear that “[a] local

government may not assert governmental or sovereign immunity to avoid the duty to defend

or indemnify an employee[.]” CJP § 5-303(b)(2). Apart from this limited waiver of

immunity, the LGTCA does not waive any preexisting immunity against suit held by the local

government or its employees. Hansen v. City of Laurel, 420 Md. 670, 679-80 n.5, 25 A.3d

122, 128 n.5 (2011) (“First, the LGTCA does not waive the limited immunity enjoyed by

local governments[.] . . . Second, the LGTCA does not waive any immunity enjoyed by

‘public officials’ and other similar representatives of local government against potential tort

claimants.”).

12
Under the LGTCA, the liability of the local government is limited and “may not

exceed $200,000 per an individual claim, and $500,000 per total claims[.]” CJP § 5-303(a).

This cap limits the local government’s liability in both a suit brought directly against the

governmental entity itself and in a suit brought against the employee, where the

governmental entity must provide indemnification. Bd. of Cnty. Comm’rs v. Marcas, L.L.C.,

415 Md. 676, 684, 4 A.3d 946, 951 (2010) (explaining that “the General Assembly enacted

. . . an emergency measure ‘clarifying that the monetary limits on the liability of a local

government under the [LGTCA] apply to claims against local governments when named as

defendants’”). As part of the limitation on liability, CJP § 5-303(c)(1) notes that “[a] local

government may not be liable for punitive damages.”

Finally, the LGTCA provides the procedural prerequisites to bringing a cause of

action against a local government or its employees. The LGTCA’s notice requirement

provides, in part, that “an action for unliquidated damages may not be brought against a local

government or its employees unless [] notice of the claim . . . is given within 180 days after

the injury.”15 CJP § 5-304(b)(1). The failure to give notice, however, does not operate as an

absolute barrier to a plaintiff’s claims provided the plaintiff shows good cause for the failure

to give the required notice and the defendant has not been prejudiced by the failure. CJP §

5-304(d) (“[U]nless the defendant can affirmatively show that its defense has been prejudiced

15
The only actions which may “be brought against a local government” are those
which exist apart from the LGTCA. The LGTCA does not authorize a new cause of action;
rather, it affects the liability of a local government and its employees.

13
by lack of required notice, upon motion and for good cause shown the court may entertain

the suit even though the required notice was not given.”). The notice requirement applies to

tort actions brought against the local government directly as well as those brought against an

employee. See Williams v. Maynard, 359 Md. 379, 391, 754 A.2d 379, 386 (2000) (“The

plain language of § 5-304 of the LGTCA indicates a legislative intent to make the notice

requirement broadly applicable to tort actions brought directly against local governments.”).

We note that the enactment of the LGTCA did not serve to create a cause of action

against the local governments or their employees. Put simply, “[t]he only actions which can

be brought directly against a local government are those authorized by law which is separate

and distinct from the LGTCA.” Maynard, 359 Md. at 394, 754 A.2d at 388 (emphasis

added). The LGTCA does not create a cause of action against the local government.

Hansen, 420 Md. at 682 n.7, 25 A.3d at 130 n.7 (explaining that “under the LGTCA, a

plaintiff may not sue directly a local government for many kinds of alleged tort violations.

A plaintiff could bring against those governments, however, claims that were available prior

to the adoption of the LGTCA”); Maynard, 359 Md. at 394, 754 A.2d at 388; Holloway-

Johnson v. Beall, __ Md. App. __ , 103 A.3d 720 (2014); Balt. Police Dep’t v. Cherkes, 140

Md. App. 282, 318, 780 A.2d 410, 431 (2001) (“On several occasions, the Maryland

appellate courts . . . have held that the [LGTCA] neither authorizes a direct action against a

local government nor waives the common law governmental immunity of an entity

designated as a local government.”); Williams v. Prince George’s Cnty., 112 Md. App. 526,

14
552, 685 A.2d 884, 897 (1996) (noting that the LGTCA “does not provide a method for

directly suing the County or other local governments”). Rather, the LGTCA’s enactment

affects the financial liability of a defendant local government or employee in a tort action.

Does the LGTCA Notice Requirement Apply to State Constitutional Claims?

In this case, the Circuit Court, as well as the Court of Special Appeals, concluded that

the notice requirement of the LGTCA must be satisfied in order to bring a state constitutional

claim for unliquidated damages16 and that Petitioners’ failure to comply with the LGTCA

notice requirement warranted dismissal of Counts I-IV of the Amended Complaint, alleging

various violations of the state constitution. Petitioners ask this Court to conclude that the

LGTCA is inapplicable to claims alleging violations of the state constitution. We hold that,

generally, the LGTCA may be properly applied to claims seeking redress for government

violations of the state constitution where unliquidated damages are sought.17

16
Compare Blick v. Mercantile Trust & Deposit Co., 113 Md. 487, 490-91, 77 A. 844,
845 (1910) (“Unliquidated damages are such as rest in opinion only, and must be ascertained
by a jury. They are damages which cannot be ascertained by computation or calculation; as,
for instance, damages for not using a farm in a workmanlike manner, for not skillfully
amputating a limb, for unskillfully working raw material into a finished fabric, and other
cases of like character where no data are given for computation or any mode of calculation.”)
(citations and quotations omitted), with Traylor v. Grafton, 273 Md. 649, 661, 332 A.2d 651,
660 (1975) (“We have defined ‘liquidated damage’ as a ‘‘specific sum of money . . .
expressly stipulated by the parties to a . . . contract as the amount of damages to be recovered
by either party for a breach of the agreement by the other.’’”) (citations omitted).
17
In its motion to dismiss, the Commission characterized Counts I-IV (as well as
Counts XII and XIII) as causes of action for unliquidated damages. Petitioners have not
argued, before any court in the instant case, that this characterization is incorrect; indeed,
Petitioners appear to accept that they have elected to pursue these allegations in tort. We
(continued...)

15
Under CJP § 5-304, a plaintiff is required to send notice to the local government

within 180 days of an injury as a condition precedent to bringing an action for unliquidated

damages. “It is a longstanding principle of Maryland jurisprudence that the LGTCA notice

provision is a condition precedent to maintaining an action directly against a local

government or its employees.” Hansen, 420 Md. at 682, 25 A.3d at 130. See also Prince

George’s Cnty. v. Longtin, 419 Md. 450, 467, 19 A.3d 859, 869 (2011); Rios v. Montgomery

Cnty., 386 Md. 104, 127, 872 A.2d 1, 14 (2005); Mitchell v. Housing Auth., 200 Md. App.

176, 191, 26 A.3d 1012, 1021 (2011). As we have previously stated, the purpose of the notice

requirement is “to apprise a local government of its possible liability at a time when it could

conduct its own investigation, i.e., while the evidence was still fresh and the recollection of

the witnesses was undiminished by time, sufficient to ascertain the character and extent of

17
(...continued)
note that the aforementioned counts do seek unliquidated damages as Petitioners simply
request “compensatory, statutory, and punitive damages” with respect these counts.
We note that, although Petitioners title Count III as a “Regulatory Taking” the
allegations under Count III contain a prayer for “compensatory, statutory, and punitive”
relief. Therefore, this allegation is subject to the LGTCA because Count III seeks
unliquidated damages for the alleged wrongful conduct of the Commission and sounds in
tort. To the extent Count III could be based upon a theory of inverse condemnation, we do
not wish to give the impression that a taking in the constitutional sense would implicate the
provisions of the LGTCA. Indeed, we recognize that applying the LGTCA to a
constitutionally based taking could conflict with a vested right to just compensation (i.e.
where the value of plaintiff’s property exceeded the cap on the local government’s liability).
This issue, however, is not before us. We are asked to consider whether Petitioners, in
bringing a cause of action for alleged government violations of the constitution seeking
unliquidated damages, were required to comply with the notice requirement of the LGTCA.

16
the injury and its responsibility in connection with it.” Longtin, 419 Md. at 466, 19 A.3d at

869 (citation omitted). See also Maynard, 359 Md. at 389-90, 754 A.2d at 385 (quoting

Bartens v. Mayor & City Council of Balt., 293 Md. 620, 626, 446 A.2d 1136, 1138-39

(1982)) (explaining that the purpose of the notice requirement of the predecessor to the

LGTCA was “to protect the municipalities and counties of the State from meretricious

claimants and exaggerated claims by providing a mechanism whereby the municipality or

county would be apprised of its possible liability at a time when it could conduct its own

investigation”).

Nothing in the statute’s language or its legislative history indicates that the General

Assembly intended to exclude any category of tortious conduct committed by a local

government or its employees, from the scope of the LGTCA notice requirement. As we have

previously indicated, “[t]his Court has been most reluctant to recognize exceptions in a

statute when there is no basis for the exceptions in the statutory language.” Lee v. Cline, 384

Md. 245, 256, 863 A.2d 297, 304 (2004). Our conclusion that the notice requirement

ordinarily applies to state constitutional claims for damages is amply supported by our

caselaw. See Dehn Motor Sales, LLC v. Schultz, 439 Md. 460, 96 A.3d 221 (2014)

(upholding trial court’s grant of summary judgment in favor of defendants on plaintiff’s state

constitutional tort claims for failure to comply with LGTCA notice requirements); Hansen,

420 Md. at 682 n.7, 25 A.3d at 130 n.7 (“Whether the [notice] requirement applies to

constitutional claims, which plaintiffs may bring directly against local governments, remains

17
uncertain. We have intimated as much, however.”); Longtin, 419 Md. at 521, 19 A.3d at 902

(2011) (Harrell, J., concurring and dissenting in part) (“[W]e recognize, at least implicitly,

that the LGTCA procedural requirements (e.g., notice) apply also to constitutional tort

claims.”); Maynard, 359 Md. at 391, 754 A.2d at 386 (“The plain language of § 5-304 of the

LGTCA indicates a legislative intent to make the notice requirement broadly applicable to

tort actions brought directly against local governments[.]”); Ashton, 339 Md. at 108 n.19, 660

A.2d at 466 n.19 (“Nevertheless, there is no exception in the [LGTCA] for constitutional

torts. In fact, there is no exception in the statutory language for any category of tort.”);

Thomas v. City of Annapolis, 113 Md. App. 440, 458, 688 A.2d 448, 457 (1997) (“The

statute does not distinguish between intentional and unintentional or constitutional and

nonconstitutional torts[.]”).

We most recently upheld the application of the notice requirement to state

constitutional claims in Dehn Motor Sales, LLC v. Schultz, 439 Md. 460, 96 A.3d 221 (2014).

In Dehn Motor Sales, the plaintiff, Dehn, filed claims against two police officers of the

Baltimore City Police Department, among others, alleging state constitutional violations

arising out of the towing of vehicles from Dehn’s property. 439 Md. at 468-69, 96 A.3d at

226-27. After the completion of discovery, the officers moved for summary judgment

arguing, in part, that the plaintiff failed to comply with the notice requirement of the

LGTCA. Dehn Motor Sales, 439 Md. at 472, 96 A.3d at 228. The trial court granted the

officers’ motion “conclud[ing] that the State constitutional claims were barred by the

18
[LGTCA].” Dehn Motor Sales, 439 Md. at 475, 96 A.3d at 230. On appeal, this Court was

asked to consider whether the plaintiff had substantially complied with the notice

requirement. By affirming the trial court’s determination that the plaintiff had not

demonstrated substantial compliance, this Court implicitly concluded that the notice

requirement was properly applied to the plaintiff’s state constitutional claims. Dehn Motor

Sales, 439 Md. at 487, 96 A.3d at 238. Having found no indication in the plain language of

the statute or in our caselaw that the notice requirement is inapplicable to actions alleging

violations of the state constitution, we decline to restrict the statute in the manner suggested

by Petitioners.

Good Cause to Excuse Compliance with the LGTCA Notice Provision

The Circuit Court did not abuse its discretion in concluding that Petitioners failed to

demonstrate good cause to excuse their failure to comply timely and fully with the notice

requirement. As discussed above, an action may proceed despite a failure to comply strictly

with the LGTCA notice requirement where the plaintiff has substantially complied with or,

alternatively, demonstrates good cause to excuse the failure to comply with the notice

requirement. Housing Auth. v. Woodland, 438 Md. 415, 428-30, 92 A.3d 379, 386-88

(2014); Longtin, 419 Md. at 467, 19 A.3d at 869. Petitioners do not dispute that notice was

given outside of the 180-day period proscribed by the LGTCA, nor do they argue substantial

compliance with the notice requirement before this Court. Rather, Petitioners aver that the

Circuit Court and the Court of Special Appeals have improperly concluded that Petitioners

19
failed to show good cause. As explained below, we affirm the Circuit Court and the Court

of Special Appeals’s judgment to dismiss Counts I, II, III, and IV against the Commission.

Where a plaintiff fails to comply with the notice requirement, it is the plaintiff’s

burden to demonstrate “good cause.” If the local government defendant is unable to

“affirmatively show that its defense has been prejudiced by lack of required notice . . . the

court may entertain the suit even though the required notice was not given.” CJP § 5-304.

As we explained in Heron v. Strader, 361 Md. 258, 271, 761 A.2d 56, 63 (2000), “[t]he test

for whether good cause exists . . . is ‘whether the claimant prosecuted his claim with that

degree of diligence that an ordinarily prudent person would have exercised under the same

or similar circumstances.’” (citations omitted). Moreover, “[t]his ‘good cause’ exception

leaves the courts some discretion in enforcing the notice requirement, and allows a court, in

certain circumstances, to avoid an unjust result.” Longtin, 419 Md. at 467, 19 A.3d at 869-70.

Cognizant of this discretionary authority, we confine our review to determining whether the

trial court abused its discretion in making its good cause determination. Woodland, 438 Md.

at 434-35, 92 A.3d at 390.

After conducting a hearing, the Circuit Court concluded as a matter of law that

Petitioners failed to present any evidence establishing good cause. This judgment was

upheld by the Court of Special Appeals. In affirming the judgment of the Circuit Court, the

intermediate appellate court “reject[ed] [Petitioners’] contention that they prosecuted their

claims with the degree of diligence that an ordinarily prudent person would have exercised

20
under the same or similar circumstances.” Rounds, 214 Md. App. at 107, 75 A.3d at 997.

The Court of Special Appeals pointed out that, according to the Amended Complaint,

Petitioners took no action between November 2007–the date Petitioners allege they became

aware of the Commission’s wrongful acts–and June 2008–the date Petitioners sent the first

notice letter–apart from apparently contacting the County Executive, who wrote a letter

urging the Commission to issue addresses for Farm Road. Rounds, 214 Md. App. at 107-08,

75 A.3d at 997. The intermediate appellate court concluded that “persuading one

officeholder to write one letter–and taking no further action [in a seven-month span]–does

not amount to the degree of diligence that an ordinarily prudent person would have

exercised.” Rounds, 214 Md. App. at 108, 75 A.3d at 997. Moreover, the Court of Special

Appeals rejected any notion that the delay in sending notice was caused by the Commission’s

allegedly misleading representations. Id. Petitioners failed to explain how this contributed

to a delay after they became aware of the alleged misconduct.

Petitioners challenge the reasoning of the courts below and conclude that they “clearly

provided proof of a good cause waiver.” In support of their position, Petitioners argue that

the Commission has not been prejudiced by their failure to send timely notice. Petitioners

also contend that they sought “non-adversarial remedies” pointing to the involvement of the

County Executive.

On the basis of the record before us, we are unable to conclude that the Circuit Court

abused its discretion. Similar to the Court of Special Appeals, we are unable to conclude that

21
the sole act of some unidentified person soliciting the assistance of the County Executive in

the span of time between the alleged injury date (November 2007) and the notice dates (June

10, 2008 and July 21, 2008) unequivocally constitutes good cause. Petitioners present no

reason for the delay in sending notice after learning of the injury. In other words, it was not

unreasonable for the trial court to have concluded that this conduct fails to amount to good

cause. Therefore, having found no abuse of discretion, we shall not disturb the trial court’s

determination.

III. COUNTS V – XI

In Counts V–XI of the Amended Complaint, Petitioners seek a declaratory judgment

that they have an easement with respect to Farm Road against all named defendants: the

Commission, Brown, MHG, Riggs, the Areys, the Messes, Hill, and Johnson. The Amended

Complaint also includes the assertion that not every person owning property adjacent to Farm

Road had been joined; however, Petitioners assert that the “other adjacent property owners

have agreed not to contest the relief sought herein.” The Circuit Court dismissed Counts

V–XI without prejudice for failure to join necessary parties.18 The Court of Special Appeals

affirmed, because “the record leaves unclear who is directly interested in the case, much less

whether the directly interested people know of the case.” Rounds, 214 Md. App. at 112, 75

A.3d at 1000 (emphasis in original). We agree.

18
The Circuit Court dismissed Counts V-XI with prejudice as to Brown, MHG and
Riggs, however, because those defendants do not have any property interest in the subject
areas and, therefore, are not interested parties.

22
The Court of Special Appeals offered three reasons for its conclusion: (1) Petitioners

failed to name the other interested property owners; (2) Petitioners failed to specify the

number of other property owners; and (3) Petitioners attempted to waive the presence of

other property owners by alleging that they would not contest the relief sought, which

Petitioners cannot themselves do. Rounds, 214 Md. App. at 111-12, 75 A.3d at 999-1000

(quoting LaSalle Bank, N.A. v. Reeves, 173 Md. App. 392, 402, 919 A.2d 738, 744 (2007))

(“The failure to join a necessary party constitutes a defect in the proceedings that cannot be

waived by the parties.”). The intermediate appellate court also rejected Petitioners’ argument

that the court should merely accept their allegation that others “agreed not to contest the

relief sought” to mean that they knew about the lawsuit and specifically declined to

participate, which would satisfy an exception to compulsory joinder that we announced in

City of Bowie v. MIE Props., Inc., 398 Md. 657, 703-04, 922 A.2d 509, 537 (2007).

Joinder

Counts V–XI were brought under the Declaratory Judgment Act, CJP § 3-405(a),

which provides that “[i]f declaratory relief is sought, a person who has or claims any interest

which would be affected by the declaration, shall be made a party.” Md. Rule 2-211 further

provides that:

Except as otherwise provided by law, a person who is subject to service of
process shall be joined as a party in the action if in the person’s absence (1)
complete relief cannot be accorded among those already parties, or (2)
disposition of the action may impair or impede the person’s ability to protect
a claimed interest relating to the subject of the action or may leave persons

23
already parties subject to a substantial risk of incurring multiple or inconsistent
obligations by reason of the person’s claimed interest.

We have long held that the “general rule [is] that ordinarily, in an action for a declaratory

judgment, all persons interested in the declaration are necessary parties.” Williams v. Moore,

215 Md. 181, 185, 137 A.2d 193, 196 (1957). Similar to this case, Williams involved a

declaratory judgment action regarding an easement. In that case, at least two other property

owners had an interest in the purported easement, because their properties abutted the

easement, but were not named in the suit. This Court held that without all adjacent property

owners (who could be affected by the declaratory judgment regarding the easement), the case

had to be dismissed. Williams, 215 Md. at 186, 137 A.2d at 197. In other words, the failure

to join necessary parties was “fatal.” Id.

We have recognized an exception to the joinder requirement, relevant here.

“‘[P]ersons who are directly interested in a suit, and have knowledge of its pendency, and

refuse or neglect to appear and avail themselves of their rights, are concluded by the

proceedings as effectually as if they were named in the record.’” MIE Properties, Inc., 398

Md. at 703, 922 A.2d at 537 (quoting Bodnar v. Brinsfield, 60 Md. App. 524, 532, 483 A.2d

1290, 1295 (1984)). In MIE Properties, we stated further that “we identify as the controlling

principles the non-joined party’s knowledge of the litigation affecting its interest and its

ability to join that litigation, but failure to do so.” 398 Md. at 704, 922 A.2d at 537

(emphasis in original). Therefore, to excuse non-joinder of necessary parties, Petitioners

must demonstrate, without resorting to self-serving hearsay declarations, that (1) the non-

24
joined party clearly had knowledge of the pending litigation, and (2) the non-joined party

must have purposefully declined to join the litigation, despite the party’s ability to join.

Petitioners in this case have not demonstrated sufficient facts to excuse the participation of

the “other adjacent property owners.”

Petitioners would have us conclude that their statement in the Amended Complaint,

that “other adjacent property owners have agreed not to contest the relief sought herein,” is

sufficient to demonstrate that the “other adjacent property owners” had express knowledge

of the litigation as well as the ability to join the suit and failure to do so. We decline to do

so. Petitioners’ conclusory statement implying knowledge of all interested landowners is

grossly insufficient. As stated by COSA, “[i]n ruling on a motion to dismiss, although a

court assumes the truth of a complaint’s factual allegations, the court (1) does not consider

‘bald assertions [or] conclusory statements[,]’ Forster [v. State], 426 Md. [565,] 604, 45 A.3d

180[, 203 (2012)] (citation omitted); and (2) construes against the plaintiff ‘[a]ny . . .

uncertainty in the [complaint’s factual] allegations[.]’ Shenker [v. Laureate Educ., Inc.], 411

Md. [317,] 335, 983 A.2d 408[, 418 (2009)].” Rounds, 214 Md. App. at 111-12, 75 A.3d at

1000. Moreover, we agree with the Court of Special Appeals’s view that Petitioners failed

to provide names or even the number of additional landowners who would be potentially

affected by a declaratory judgment regarding an easement over Farm Road. In this case,

Petitioners clearly failed to establish that the non-joined parties met the MIE exception.

25
Because Counts V–XI were dismissed without prejudice, a remand of Counts V–XI to allow

Petitioners to join the necessary adjacent landowners is proper.

IV. COUNTS XII AND XIII

Petitioners assert Counts XII (“wrongful interference with easement rights”) and XIII

(“slander of title”) of their Amended Complaint against the Commission, MHG, Riggs,

Brown, and the Areys. On Respondents’ motions, the Circuit Court dismissed Counts XII

and XIII, and the Court of Special Appeals affirmed that judgment, on the grounds that the

causes of action were time-barred pursuant to CJP § 5-101 (“A civil action at law shall be

filed within three years from the date it accrues unless another provision of the Code provides

a different period of time within which an action shall be commenced.”) and CJP § 5-105

(“An action for assault, libel, or slander shall be filed within one year from the date it

accrues.”), respectively. For the reasons we shall explain further in this opinion, we affirm,

but for different reasons, the Court of Special Appeals’s conclusion that dismissal was proper

as to Count XII. We shall reverse the Court of Special Appeals’s judgment as to Count XIII,

however, and conclude that dismissal of that count was premature at this stage of the

litigation.

Relevant Lower Court Proceedings

Petitioners’ Count XII alleges “wrongful interference with easement rights” against

the Commission, MHG, Riggs, Brown, and the Areys. Petitioners specifically allege that

they “have and enjoy an easement with respect to Farm Road and the 10 Foot Right-of-Way[,

26
and that Respondents] intentionally and purposefully obstructed [Petitioners’] easement and

interfered with their reasonable enjoyment of their easement rights.” It is undisputed that

Brown and the Areys owned and developed properties to the north of Petitioners’ properties,

and that at some point during the development of the Dellabrooke subdivisions, “northern

access” to Farm Road was eliminated. Accordingly, we can deduce that Count XII arises out

of the elimination of Petitioners’ alleged easement on the northern side of Petitioners’

properties.

Count XIII alleges “slander of title” against the Commission, MHG, Riggs, Brown,

and the Areys. In Count XIII, Petitioners allege that “[Respondents] deliberately ignored

public records referring to Farm Road and the 10 Foot Right-of-Way, and intentionally

omitted references to Farm Road and the 10 Foot Right-of-Way in creating development

documents and submitting those documents to the Commission[,]” which were subsequently

improperly approved by the Commission. By submitting false documents, Petitioners allege,

Respondents “falsely stated and/or agreed to the intentional false publication of, or

knowingly facilitated the false publication of, the title history of the land for the area

covering Farm Road and the 10 Foot Right-of-Way.” In addition, Petitioners allege that, by

knowingly approving the false documents, the Commission “falsely stated the title history

of the land for the area covering Farm Road and the 10 Foot Right-of-Way and, in doing so,

maliciously published false words.” Thus, like Count XII, Count XIII arises out of the

27
activities surrounding the development and elimination of the alleged easement to the north

of Petitioners’ properties.

In their preliminary motions to dismiss pursuant to Md. Rule 2-322, Respondents

contend that Counts XII and XIII should be dismissed on statute of limitations grounds,

because, where Petitioners admitted that “access to Goldmine Road was cut off either in

1994 or 2000[,]” and “[i]f [Petitioners] relied on the alleged Farm Road as the sole means

of northward access to Gold Mine Road, then they would have clearly known of an injury

upon any attempt to go north on Farm Road through the Dellabrooke subdivision.” The

Circuit Court granted the motion, concluding that Petitioners “were on inquiry notice, at the

very least, of the alleged harm because the conservation easement was approved by the

Commission in 1994 and then Plat 21707 was approved by the Commission August 3, 2000.

Furthermore, [Petitioners] in their Amended Complaint state that northern access to Farm

Road was eliminated in 1994, inferring that [Petitioners] may have possessed more than just

inquiry notice.”

The Court of Special Appeals affirmed, agreeing with the trial court that Petitioners

had at least “inquiry notice” of their claims by 2003 at the latest, and, therefore, the June

2008 filing in federal court was untimely. Rounds, 214 Md. App. at 115-17, 75 A.3d at

1002-03. Noting that Petitioners “[did] not allege the date on which Brown allegedly

‘eliminated the northern access to Farm Road,’” the court determined that “the Amended

Complaint implies that Brown’s alleged elimination of northern access to Farm Road

28
occurred sometime in or before 2003.” Rounds, 214 Md. App. at 115, 75 A.3d at 1002.

Based on that determination, the court therefore “assume[d] that Brown’s alleged elimination

of northern access to Farm Road occurred sometime in or before 2003 (when the Areys

allegedly bought the 69 acres).” Rounds, 214 Md. App. at 116, 75 A.3d at 1002.

In conducting its statute of limitations analysis, the Court of Special Appeals relied

in part on its prior opinion in Bacon v. Arey, 203 Md. App. 606, 40 A.3d 435 (2007), which

involved the same original property and basic facts regarding the development of

Dellabrooke and the alleged elimination of Farm Road. In that case, Bacon, the appellant

landowner, brought suit on June 9, 2006 against the Commission, the development group,

and other property owners asserting his entitlement to an easement over Farm Road, which

he alleged ran across property he purchased on October 1, 2002. Bacon, 203 Md. App. at

618, 40 A.3d at 442-43. Bacon “alleged that Farm Road’s access to Gold Mine Road ‘was

permanently cut’ in 1994, with the initial approval of Brown’s subdivisions, and that

northward access of Farm Road to Gold Mine Road was prohibited, in 2001, with approval

of the Dellabrooke subdivisions and the ‘recordation of Plat 21707.’” Bacon, 203 Md. App.

at 619, 40 A.3d at 443. The Circuit Court for Montgomery County dismissed Bacon’s

claims, in part, as time-barred. The Court of Special Appeals held that, based on the above

allegations, Bacon “had knowledge of facts sufficient to constitute, at least, inquiry notice”

and that by making such allegations, Bacon “acknowledged that he ‘reasonably should have

known’ or with diligent investigation could have known at the time he purchased the property

29
that he could not use Farm Road to access Gold Mine Road.” Bacon, 203 Md. App. at 660-

61, 40 A.3d at 468. Therefore, the Court of Special Appeals concluded that his claim

accrued when he took title to the property on October 1, 2002. Bacon, 203 Md. App. at 663,

40 A.3d at 469.

As in Bacon, the Court of Special Appeals in the instant case concluded that the

alleged elimination of Farm Road provided Petitioners with “inquiry notice that their ability

to access Farm road was in danger.” Rounds, 214 Md. App. at 116, 75 A.3d at 1002. In the

alternative, the court concluded that Petitioners were placed on inquiry notice when the

Commission approved Plat 21707 on August 3, 2000. Rounds, 214 Md. App. at 116-17, 75

A.3d at 1002. The court noted, however, that the Bacon decision “depended on the fact

that—independent of what was in the plaintiff’s chain of title—the plaintiff was on inquiry

notice because of the alleged elimination of northern access to Farm Road.” Rounds, 214

Md. App. at 116 n.17, 75 A.3d at 1002 n.17. Therefore, the court concluded, “after Brown’s

alleged elimination of northern access to Farm Road—as well as the Commission’s approval

of Plat 21707—[Petitioners] should have discovered their injury through the exercise of due

diligence.” Rounds, 214 Md. App. at 116-17, 75 A.3d at 1003 (citation and quotation

omitted). In other words, the Court of Special Appeals’s conclusion relied on inferences or

assumptions that Petitioners had knowledge of facts that should have put them on inquiry

notice. For the reasons explained below, we shall conclude that such inferences and

30
conclusions were not clear from the allegations of fact on the face of the Amended

Complaint.

Parties’ Contentions

Petitioners ultimately rely on the discovery rule to contend that they did not discover,

and had no reason to know of, their injury until the denial of addresses by the Commission

in November 2007. Specifically, Petitioners insist that it was not until the Commission

denied their request for addresses that “it came to light that [Respondents], working together,

effectively erased Farm Road and its ten-foot right-of-way from the books, providing the

Commission with an unfounded justification to deny [Petitioners] residential addresses.” In

other words, Petitioners maintain that their claims accrued in November 2007. Respondents

argue that Petitioners had at least inquiry notice, if not actual notice, of any possible claim

by 2003 at the latest, based not on chain-of-title notice but “by virtue of the open

development of Dellabrooke since 1994” and the undisputed elimination of northern access

to Farm Road. Respondents MHG and Riggs note that the Court of Special Appeals in

Bacon looked at the “totality of the facts, including the development of Dellabrooke,

undisputed obstruction of the road, recording of the initial plat in 1994 and the recording of

Record Plat 21707 [in] 2001.” Like in Bacon, Respondents contend, all of those facts as

alleged by Petitioners in this case, when taken together, demonstrate sufficient notice that any

right to use Farm Road was being challenged at some point prior to 2003.

Statute of Limitations

31
For any statute of limitations analysis, the operative date is the date that a claim

accrues. Generally, a claim accrues when the plaintiff suffers the actionable harm. The

“discovery rule” is an exception to this general rule, and operates to “toll[] the accrual date

of the action until such time as the potential plaintiff either discovers his or her injury, or

should have discovered it through the exercise of due diligence.” Poole v. Coakley &

Williams Const., Inc., 423 Md. 91, 131, 31 A.3d 212, 236 (2011) (quotation omitted).

Simply put, the discovery rule provides that a “cause of action accrues when the claimant in

fact knew or reasonably should have known of the wrong.” Poffenberger v. Risser, 290 Md.

631, 636, 431 A.2d 677, 680 (1981) (holding the discovery rule to be generally applicable).

For purposes of the discovery rule, depending on the circumstances, “inquiry notice” is

sufficient to trigger the statute of limitations. “[I]nquiry notice ‘means having knowledge

of circumstances which would cause a reasonable person in the position of the plaintiffs to

undertake an investigation which, if pursued with reasonable diligence, would have led to

knowledge of the alleged [cause of action].’” Anne Arundel Cnty. v. Halle Dev., Inc., 408

Md. 539, 562, 971 A.2d 214, 228 (2009) (quoting O’Hara v. Kovens, 305 Md. 280, 302, 503

A.2d 1313, 1324 (1986)). In other words, under the discovery rule, “notice of facts . . . is the

trigger for commencement of the limitations period.” Halle Dev., Inc., 305 Md. at 565, 971

A.2d at 229. Thus, unlike the general rule, which depends on when the injury occurred,

32
when we apply the discovery rule, the focus is on when the plaintiff discovered facts which

provide notice of the injury.19

In this case, Respondents raised the statute of limitations defense in a preliminary

motion to dismiss pursuant to Md. Rule 2-322. It is well settled that “a motion to dismiss

ordinarily should not be granted by a trial court based on the assertion that the cause of action

is barred by the statute of limitations unless it is clear from the facts and allegations on the

face of the complaint that the statute of limitations has run.” Litz v. Maryland Dep’t of the

Environment, 434 Md. 623, 641, 76 A.3d 1076, 1086 (2013). See also Antigua Condo. Ass’n

v. Melba Investors Atl., Inc., 307 Md. 700, 711 n.5, 517 A.2d 75, 80 n.5 (1986) (noting that

“if correct, the defense of limitations clearly appeared from the face of the complaint and the

defense could properly be raised by a motion to dismiss under Md. Rule 2–322(b).”); Desser

v. Woods, 266 Md. 696, 703, 296 A.2d 586, 591 (1972) (“It is well settled that the defenses

of the bar of the statute of limitations and of laches may only be availed of by demurrer to

a bill of complaint when they appear on the face of the bill of complaint, itself, and other

matters not so appearing cannot be considered in determining whether or not these defenses

are a bar to the alleged cause of action.”). Accordingly, our review is limited “to the universe

19
Essentially, the Court of Special Appeals concluded in this case that Petitioners
were on “inquiry notice” of their claims at the time that northern access to Farm Road was
allegedly eliminated (i.e., sometime between 1994 and 2003). In reaching this conclusion,
the intermediate appellate court did not rely on or specify any facts or allegations relating to
when Petitioners knew that northen access to Farm Road had been eliminated, or knew of
facts which would cause a reasonable person to conduct further investigation, which would
have revealed the elimination of northern access to Farm Road. Rather, the Court of Special
Appeals focused on when Petitioners alleged that the elimination (the injury) occurred.

33
of the facts and allegations contained in [the Amended Complaint]” and all reasonable

inferences drawn in the light most favorable to Petitioners. Litz, 434 Md. at 642, 76 A.3d

at1087.

The allegations relevant to Counts XII and XIII contained in Petitioners’ Amended

Complaint read as follows:

1. Farm Road runs in a north-south direction through the center of the Gilpin
Tract. It begins at Goldmine Road to the north and runs south to Brooke Road.

2. Use of Farm Road continued until such time as residents were openly
discouraged and then prevented from traversing the northern portion of Farm
Road that traversed the Dellabrooke property.

3. [Plaintiffs’] Properties sit directly along Farm Road, which has provided the
only means of ingress and egress to those properties for more than one hundred
years.

4. “In or around 1994, Defendant Brown, a real estate developer, began
developing the area around Farm Road into subdivisions of luxury, single-
family homes. . . . Development and sale of lots as the subdivision continued
through the late 1990s and 2000s.”

5. “As part of his development efforts, Brown eliminated the northern access
to Farm Road from Goldmine Road. In addition, Brown created a fictional
“conservation easement” . . . and included it in subdivision plans submitted to
the Commission.”

6. “Plat 21707 which the Commission approved on August 3, 2000, falsely
omits any reference to Farm Road or to the 10 Foot Right-of-Way. Moreover,
Plat 21707 includes the fictional ‘conservation easement’ over parts of Farm
Road.”

7. “In or around 2003, the Areys purchased 69 acres of the fictional
‘conservation easement’ . . . from Brown for purposes of developing the
property.”

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8. “On information and belief, defendants the Areys, even before their
purchase of the 69 acres, worked behind the scenes with Brown to develop
‘Dellabrooke’ and ‘Dellabrook Forest,’ to cut off the northern access to Farm
Road, and to eliminate Farm Road entirely[.]”

9. “Brown, the Areys and MHG were able to take advantage of the dense
forest surround [sic] the northern part of Farm Road to keep Plaintiffs from
knowing about their elimination of Farm Road.”

10. “As a result of the Commission’s knowingly wrongful approval of
Brown’s, MHG’s and Riggs’s false submissions, (1) the ‘Dellabrooke’
subdivision was built over the northern entrance to Farm Road, severing the
road’s access point from Goldmine Road, and (2) a fictional conservation
easement was recorded in the Commission’s records that overlay parts of Farm
Road, further severing the Plaintiffs’ access to Goldmine Road.”

11. “Only upon [Mr. Rounds’] November 2007 attempts to obtain addresses
from the Commission did Plaintiffs learn of Defendants’ wrongful acts.”

Absent from these factual allegations is the date on which Petitioners became aware

of the elimination of northern access to Farm Road.20 Indeed, Petitioners claimed that they

did not become aware of their injury or “[Respondents’] wrongful acts” until 2007. In

addition, we note that the allegations do not describe how the alleged elimination of Farm

Road occurred (much less whether the elimination involved any physical barrier that was in

plain view of Petitioners, which might have put them on notice of their injury). Likewise,

there is no allegation regarding any notice to Petitioners regarding the Commission’s

20
One would normally expect this issue to be explored if a motion for summary
judgment were filed and considered. In this case, however, the issues are raised by a motion
to dismiss and thus our review is limited to the four corners of the Amended Complaint and
any reasonable and permissible inferences drawn from the allegations in a light most
favorable to the non-moving party.

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recording of Plat 21707.21 What is clear is that the allegations contained in the Amended

Complaint, to which our review is limited, do not include any facts known by Petitioners,

prior to 2007, which would have put them on notice, inquiry or otherwise, of their claims

relating to the elimination of northern access to Farm Road.

“We have held consistently that ‘the question of accrual in § 5-101 is left to judicial

determination,’ unless the determination rests on the resolution of disputed facts regarding

discovery of the wrong.” Poole, 423 Md. at 131, 31 A.2d at 236 (quoting Frederick Rd. Ltd.

P’ship v. Brown & Sturm, 360 Md. 76, 95, 756 A.2d 963, 973 (2000)). Accordingly, where

it is unclear from the facts and allegations on the face of the Amended Complaint what

Petitioners knew and when they knew it, the question of accrual rests on a determination of

fact. This is a question appropriate for the fact finder, not the appellate court. See Litz, 434

Md. at 641, 76 A.3d at 1086 (“When it is necessary to make a factual determination to

identify the date of accrual, however, those factual determinations are generally made by the

trier of fact, and not decided by the court as a matter of law.”). Based on our review of the

21
We also reject the Court of Special Appeals’s alternative conclusion that “the
Commission’s approval of Plat 21707 on August 3, 2000, put [Petitioners] on inquiry notice
that their ability to access Farm Road was in danger.” Rounds, 214 Md. App. at 116, 75 A.3d
at 1002. Although the Court of Special Appeals did not explain under what theory the
recording of Plat 21707 would provide notice to Petitioners, we point out for sake of
completeness that “constructive notice from the land records, in and of itself, does not
constitute the requisite knowledge of circumstances which ought to have put the plaintiff on
inquiry.” Poffenberger v. Risser, 290 Md. 631, 638, 431 A.2d 677, 681 (1981) (Rodowsky,
J., concurring). Moreover, we reiterate our conclusion in Poffenberger that “the discovery
rule contemplates actual knowledge – that is express cognition, or awareness implied from
knowledge of circumstances which ought to have put a person of ordinary prudence on
inquiry[.]” 290 Md. at 637, 431 A.2d at 681 (majority opinion).

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Amended Complaint, we conclude that Petitioners alleged facts sufficient to survive a

preliminary motion to dismiss on limitations grounds. Therefore, dismissal was premature.

28 U.S.C. § 1367(d)

The Circuit Court also concluded that, even if the date of accrual was not until

November 2007, Count XII (“wrongful elimination of easement rights”) was time-barred in

any event because Count XII was not included in the initial federal court case. Rather, Count

XII was first made a part of the state court complaint filed in 2011, more than three years

after the latest possible accrual date. The Circuit Court declined to accept Petitioners’

argument that Count XII would relate back to the initial filing in federal court because,

although it was a different legal theory, it arose out of the same facts. Although the Court

of Special Appeals did not address this question, because it held that both claims were time-

barred based on the date of accrual, when the trial court gives an alternate ground for a

conclusion, it is reasonable for the appellate court to review it for legal correctness. See

Bailiff v. Woolman, 169 Md. App. 646, 653, 906 A.2d 409, 414 (2006) (“We still must satisfy

ourselves . . . that the alternative holding is indeed the one that . . . would legally constitute

a freestanding basis in support of the trial court’s decision.”) (internal quotation marks

omitted). Therefore, we shall provide guidance on this point in anticipation of remand.

The Circuit Court concluded that “since [Petitioners] did not specifically assert a

claim for wrongful interference in the federal district court case, the statute of limitations will

not date back to or be tolled from the filing of the district court case.” This conclusion was

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based on the Circuit Court’s interpretation and application of 28 U.S.C. § 1367(d)

(“supplemental jurisdiction”). We have explained:

[28 U.S.C.] § 1367(d) serves to suspend the running of a State statute of
limitations from the time the State-law claim is filed in U.S. District Court
until 30 days after (1) a final judgment is entered by the U.S. District Court
dismissing the pendant State-law claims, or (2) if an appeal is noted from that
judgment, issuance of an order of the U.S. Court of Appeals dismissing the
appeal or a mandate affirming the dismissal of those claims by the District
Court.

Turner v. Knight, 406 Md. 167, 189, 957 A.2d 984, 996 (2008). 28 U.S.C. § 1367(d)

provides:

The period of limitations for any claim asserted under subsection (a), and for
any other claim in the same action that is voluntarily dismissed at the same
time as or after the dismissal of the claim under subsection (a), shall be tolled
while the claim is pending and for a period of 30 days after it is dismissed
unless State law provides for a longer tolling period.

The Circuit Court in this case concluded that “‘[a]sserted’ under § 1367(d) is not read

broadly to include state law claims not expressly asserted in the federal complaint, despite

the fact that the state complaint may contain the same facts.” At least one other state court

has agreed with this conclusion. In Rester v. McWane, Inc., 962 So. 2d 183 (Ala. 2007),

cited by the Circuit Court in this case, the Supreme Court of Alabama held that “[u]nder 28

U.S.C. § 1367(d), the statute of limitations for state-law claims is tolled only when a party

seeks to refile in the state court the same state-law claims the party asserted in the federal

court.” 962 So. 2d at 186. United States District Courts have held similarly. See In re

Vertrue Mktg. & Sales Practices Litig., 712 F. Supp. 2d 703, 721 (N.D. Ohio 2010) aff’d sub

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nom. In re Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474 (6th Cir. 2013) (“[O]nly

those state law claims actually asserted in [the federal case] are subject to statutory tolling

[under § 1367(d).]”).

Petitioners rely on a Kansas appellate court case in support of their position.

Specifically, they point to where the Kansas Court of Appeals stated that where “[p]laintiffs

filed their petition . . . within the 30-day window created by 28 U.S.C. § 1367(d) . . . any

theories of state law liability fairly within the notice provided to Brown County in the federal

complaint should be treated as timely for limitations purposes.” Estate of Belden v. Brown

Cnty., 261 P.3d 943, 975 (Kan. Ct. App. 2011). The Kansas case is inapposite, however.

The plaintiffs in Belden first filed suit in federal court alleging both constitutional and state-

law claims against Brown County, through its board of commissioners, individual

commissioners, the county sheriff, and several jail employees, resulting from the death of

Belden while he was incarcerated in a county jail. Id. at 950. Following dismissal by the

federal court, the plaintiffs refiled their state-law claims in a new case in state court within

the 30 day time period provided by 28 U.S.C. § 1367(d). Id. at 975. In the state court, the

county argued that it could not be held vicariously liable based on the statute of limitations,

because the “[p]laintiffs did not include a specific assertion of vicarious liability in their

federal court complaint.” Id. at 974. The appellate court disagreed, holding that the county

“fail[ed] on its statute of limitations argument because [p]laintiffs’ federal complaint

provided sufficient notice to the [c]ounty that it faced vicarious liability for the alleged

39
negligence of various Sheriff’s Department employees.” Id. at 975. The court specifically

rejected the plaintiffs’ argument that a vicarious liability theory would “relate back” to the

filing of the federal case. Id. at 974. Thus, the court’s conclusion rested on the fact that the

plaintiffs had adequately asserted claims for liability against the county as an employer, even

though in the original federal complaint the plaintiffs had not used the words “respondeat

superior” or “vicarious liability.” Id. at 974-75.

Unlike the Kansas case, where the plaintiffs simply refined their state law claims, the

Petitioners in this case asserted an entirely new cause of action for wrongful interference with

easement rights. Under 28 U.S.C. § 1367(d), “in order to benefit from tolling, the claim must

have been expressly asserted in federal court.” In re Vertrue Mktg. & Sales Practices Litig.,

712 F. Supp. 2d at 721-22 (holding that “only the state law claims . . . which were expressly

alleged [in the prior federal suit] may be tolled”). Accordingly, where Petitioners failed to

assert a claim for wrongful interference with easement rights in their federal suit, and did not

file their state suit including the wrongful interference claim until more than four years after

the latest possible accrual date, that claim is barred by the statute of limitations. We therefore

affirm the dismissal of Count XII.

MHG & Riggs

As an alternate ground for dismissing Counts XII and XIII against MHG and Riggs,

the Circuit Court concluded that MHG and Riggs owed no duty of care to Petitioners and

therefore could not be liable to Petitioners for their wrongful interference with easement

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rights or slander of title claims. Although the Court of Special Appeals did not address this

issue, because it affirmed dismissal of Counts XII and XIII on other grounds, as we stated

above, we shall review the alternate ground for the trial court’s decision to provide guidance

in anticipation of remand. As we have affirmed the dismissal of Count XII on the basis of

limitations, we shall focus solely on Count XIII (“slander of title”).

In reaching its decision, the Circuit Court relied on Carlotta v. T.R. Stark & Assocs.,

Inc., 57 Md. App. 467, 470 A.2d 838 (1984). In Carlotta, the plaintiffs brought suit against

adjacent landowners for continuing trespass, and against the adjacent landowners’ surveyor

for aiding and abetting the landowners “by negligently preparing an erroneous survey plat

of the disputed property boundary.” 57 Md. App. at 469, 470 A.2d at 838. The trial court

sustained the surveyor’s demurrer for failure to state a cause of action. Carlotta, 57 Md.

App. at 469, 470 A.2d at 838-39. The Court of Special Appeals affirmed, holding that “a

surveyor of a disputed boundary line does not owe a duty of care to a non-reliant third party

adjacent landowner.” Carlotta, 57 Md. App. at 472, 470 A.2d at 840.

Carlotta is inapposite to the instant case, however, because it involved a claim

sounding in negligence, in which the plaintiff was required to prove the predicate duty of

care. See also Bacon v. Arey, 203 Md. App. 606, 664, 40 A.3d 435, 470 (2012) (quoting Doe

v. Pharmacia & Upjohn Co., 388 Md. 407, 414, 879 A.2d 1088, 1092 (2005)) (“There can

be no negligence where there is no duty that is due; for negligence is the breach of some duty

that one person owes to another.”). Conversely, in this case, Petitioners’ Count XIII alleges

41
an action for intentional slander of title. Petitioners have alleged no duty of care or any

breach thereof on the part of Respondents, and there is no contention by Respondents that

duty of care or breach thereof is an element of a claim for slander of title.

As we have stated, our review at the motion to dismiss stage is limited to whether

Petitioners pled sufficient facts to support a claim. To support a claim for slander of title, a

plaintiff must plead facts sufficient to show (1) a false statement, (2) that the false statement

was communicated to someone else (publication), (3) malice, and (4) special damages. See

Beane v. McMullen, 265 Md. 585, 607-09, 291 A.2d 37, 49 (1972) (quoting Prosser, Law of

Torts (4th ed. 1971)). See also Rite Aid Corp. v. Lake Shore Investors, 298 Md. 611, 625,

471 A.2d 735, 742 (1984) (“Special damages are those which result in a pecuniary loss

directly or immediately from the conduct of third persons.”). In the Amended Complaint,

Petitioners allege that MHG and Riggs engaged in wrongful and intentional conduct, which

subsequently caused them injury. Essentially, Petitioners in this case allege that MHG and

Riggs were involved with Brown and the Areys in a scheme to erase Farm Road. Petitioners

specifically set forth facts related to the alleged falsity of the survey documents, and that

MHG and Riggs had knowledge of the falsity when the documents were created and

submitted to the Commission. Petitioners allege that the false survey documents were

submitted to and approved by the Commission, and filed in the land records. Finally,

Petitioners allege that the publication of the false surveys has affected the marketability of

their title, such that they have been unable to list their properties for sale, thus alleging

42
pecuniary damages. We conclude that these allegations are sufficient to survive a motion to

dismiss on grounds that MHG and Riggs owed no duty of care to Petitioners.

JUDGMENT OF THE COURT OF SPECIAL APPEALS
AFFIRMED IN PART AND REVERSED IN PART.
CASE REMANDED TO THAT COURT WITH
DIRECTIONS TO REMAND THE CASE TO THE
CIRCUIT COURT FOR MONTGOMERY COUNTY
FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. THE PARTIES TO ABIDE THEIR
COSTS.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2775040. Public record. Not legal advice.