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Higginbotham v. PSC
State: Maryland
Court: Court of Appeals
Docket No: 2346/04
Case Date: 10/26/2006
Preview:REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2346 SEPTEMBER TERM, 2004

ROBERT M. HIGGINBOTHAM, II v. PUBLIC SERVICE COMMISSION OF MARYLAND ET AL.

Kenney, Sharer, Woodward, JJ.

Opinion by Kenney, J.

Filed: October 26, 2006

Robert M. Higginbotham, II, appeals the decision of the Circuit Court for Baltimore City dismissing his complaint against the Public Service Commission of Maryland and Chairman Kenneth D. Schisler. five: 1. Does the circuit court's grant of the Chairman's motion to dismiss constitute an appealable final judgment? 2. Did the circuit court err in dismissing Higginbotham's claim that his termination violated his due process rights? 3. Did the circuit court err in dismissing Higginbotham's claim that he was illegally terminated? 4. Did the circuit court abuse its discretion in refusing to grant Higginbotham leave to amend his complaint? 5. Did the circuit dismissing Higginbotham's compensatory damages? court err in claims for He presents three questions,1 which we have recast as

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Higginbotham presents the following issues: 1. Whether the lower court erred in granting the motion to dismiss where Appellant had properly pled a claim for relief under Article 24 of the Maryland Constitution. 2. Whether the lower court erred in granting the motion to dismiss where Appellant had properly pled a claim for compensatory damages under Article 24 of the Maryland Constitution. 3. Whether the lower court erred in granting the motion to dismiss without leave to amend, where amendment would have made Appellant's claim viable, and no unjust delay or prejudice would have resulted.

For the following reasons, we shall reverse the circuit court's judgment. FACTUAL AND PROCEDURAL HISTORY Higginbotham was employed by the Public Service Commission ("the Commission") as a Public Information Officer from January 1999 until April 16, 2004, when Chairman Kenneth D. Schisler ("the Chairman") terminated. informed Higginbotham that his employment was

Higginbotham appealed his termination to the Chairman The appeal was denied on May 12, 2004.

on April 30, 2004.

On June 10, 2004, Higginbotham brought suit in the Circuit Court for Baltimore City against the Commission and the Chairman, individually and in his official capacity. He raised two counts in the complaint. In the first, entitled "Maryland Declaration of

Rights," he asserted that his termination "deprived [him] of rights secured by the Maryland Constitution, including but not limited to the right to procedural and substantive due process." In the

second count, entitled "Petition for Judicial Review," Higginbotham argued that the Commission "acted illegally, unconstitutionally, arbitrarily, terminated capriciously, and unreasonably, unilaterally, in that [it] legal

plaintiff's

employment

without

authority, and without notice, hearing, impartiality, or recourse or process for plaintiff." Claiming "lost wages, damage to his

reputation, emotional distress, and loss of enjoyment of life," he sought reinstatement with back pay, or, in the alternative, damages

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in the amount of $500,000. The Chairman filed an answer and a motion to dismiss on July 23, 2004.2 In his motion to dismiss, the Chairman argued that

Higginbotham was subject to removal at will, that he did not have a constitutionally protected liberty or property interest in

continued employment, and that there was no statutory right to judicial review of the Chairman's denial of his appeal. With

respect to Higginbotham's claim for compensatory damages, the Chairman asserted that he had failed to properly follow the

procedural requirements of the Maryland Tort Claims Act and that the Chairman enjoys governmental immunity from liability. The

Chairman further argued that Higginbotham's "vague assertions that the Defendant violated state and federal law are insufficient to support a claim," and that Higginbotham had "failed to allege any facts supporting a claim that Chairman Schisler acted with malice or was grossly negligent." After having been granted an extension of time by the court, Higginbotham responded to the Chairman's motion to dismiss on September 13, 2004. He asserted that he was "[u]narguably . . .

entitled to certain legal protections prior to discharge" and

In his answer, the Chairman alleged that Higginbotham had "failed to serve the Public Service Commission." In a memorandum in support of his motion to dismiss, the Chairman stated that he had been served with Higginbotham's complaint on June 23, 2004, but that "[t]he Public Service Commission has never been served." The Chairman urged that Higginbotham's "entire Complaint . . . must be dismissed." -3-

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"protection against unconstitutional or illegal conduct in the termination of his employment." In a footnote on the first page of

his opposition to the motion, Higginbotham noted that there was a similar case pending before the court, Wilson v. Public Service Commission, Case No. 24-C-04-004553.3 Wilson, whose employment was terminated by the Chairman the day before Higginbotham's, had brought similar claims against the Commission. The Commission After a

moved to dismiss Wilson's claims on June 30, 2004.

hearing, the court denied the motion to dismiss on October 25, 2004. By the same order, it granted Wilson's motion for summary

judgment, and ordered "that the Plaintiff shall be immediately reinstated as Manager of Public Relations with all the duties and responsibilities of the office of Manager of Public Relations as well as full back pay and back benefits from the date of

termination to the date of reinstatement." In his opposition to the motion to dismiss, Higginbotham conceded that he had not previously satisfied the requirements of

The documents related to the Wilson case are not part of the record in this case, but were included by Higginbotham in the appendix to his appellant's brief. Generally, we may not consider documents that are not in the record before us. Forward v. McNeily, 148 Md. App. 290, 309, 811 A.2d 855 (2002). We may, however, take judicial notice of proceedings in another case when failing to do so "would offend `the ends of justice.'" Id. (quoting James v. State, 31 Md. App. 666, 685, 358 A.2d 595 (1976)). Because of the unique circumstances in this case, we shall take judicial notice of the October 25, 2004 order of the Circuit Court for Baltimore City in Wilson v. Public Service Commission, case number 24 -C-04-004553. -4-

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the Tort Claims Act, but stated that he was not at that time raising tort claims. He argued that the issues of the Chairman's

immunity and malice or gross negligence by the Chairman should be considered only after the completion of discovery. Higginbotham stated that he "d[id] not oppose the motion as to the Petition for Judicial Review," but noted that he would "move to amend [his complaint] to include [a] claim for a writ of mandamus." In his memorandum in support of his opposition to the motion to dismiss, Higginbotham stated that he "does not oppose the motion as to the Petition for Judicial Review, and instead, moves to amend to include his claim for a writ of mandamus." In a reply memorandum in support of his motion to dismiss, the Chairman argued that it was inappropriate for Higginbotham to move to amend his complaint in a memorandum in opposition to a motion to dismiss. to amend. motion.4 The court granted the motion to dismiss in an order dated October 19, 2004. The court's order merely states: "UPON The Chairman urged the court not to consider the motion Neither party requested a hearing on the Chairman's

CONSIDERATION OF the Motion to Dismiss, Memorandum in Support Thereof and Reply Memorandum of the Public Service Commission and

Maryland Rule 2-311(f) provides that "[a] party desiring a hearing on a motion other than a motion filed pursuant to Rule 2532, 2-533, or 2-534, shall request the hearing in the motion or response under the heading `Request for Hearing.'" -5-

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Chairman Kenneth D. Schisler and the Plaintiff's Opposition thereto . . . the Motion to Dismiss is GRANTED." The court did not provide

reasons for dismissal, or address the Commission's failure to respond to Higginbotham's complaint, the Wilson case, or

Higginbotham's request to amend his complaint. On October 22, 2004, Higginbotham filed his amended complaint. On October 29, 2004, he moved for reconsideration, or to alter or amend judgment. The court denied Higginbotham's motion on November 23, 2004. Higginbotham noted this appeal on December 20, 2004. STANDARD OF REVIEW The following standard of review applies on appeal from the grant of a motion to dismiss: "The proper standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct. In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action." In reviewing the complaint, we must "presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom." "Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven." Britton v. Meier, 148 Md. App. 419, 425, 812 A.2d 1082 (2002) (citations omitted) (quoting Fioretti v. Md. State Bd. of Dental Exam'rs, 351 Md. 66, 71-72, 716 A.2d 258 (1998); Faya v. Almaraz, 329 Md. 435, 443, 620 A.2d 327 (1993)). DISCUSSION

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I. Final Judgment At oral argument on March 8, 2006, Higginbotham asserted that the circuit court's grant of the motion to dismiss is not a final judgment because it pertains only to the Chairman, the Commission having failed to file an answer or pretrial motion. The Chairman

responded that the Commission was never properly served, and that, even if it was properly served, it had joined in the Chairman's motion to dismiss, which pertained to the complaint as a whole. A named defendant becomes a party to the action only when the defendant is properly served. State Highway Admin. v. Kee, 309 Md. 523, 529-30, 525 A.2d 637 (1987). If the circuit court's judgment

resolved all claims against the parties over whom it has acquired jurisdiction, i.e., all parties who were properly served, the judgment is final and appealable. Id. In his complaint, The docket

Higginbotham named the Commission and the Chairman.

indicates that summonses were issued on June 16, 2004, for the Commission, the State, and the Chairman.5 The docket does not show

that the summonses were served or returned, and there is no proof of service in the record. Assuming that the parties were not

served (because there was nothing in the record at the time to

Although Higginbotham named only the Commission and the Chairman in his complaint, the docket lists three defendants: the Commission, the State, and the Chairman. With respect to the Chairman and the State, the docket indicates that service was to be effected on the "Office of the Attorney General of the State of Maryland." Susan Stevens, of the Public Service Commission, is also listed as "Attorney" for the Commission. -7-

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indicate that they were), the Chairman waived service by responding to the complaint, and therefore became a party to the action. See

Prof'l Staff Nurses Ass'n v. Dimensions Health Corp., 110 Md. App. 270, 276 n.1 677 A.2d 87 (1996), aff'd, 346 Md. 132, 695 A.2d 158 (1997); LVI Envtl. Servs. v. Academy of IRN, 106 Md. App. 699, 707, 666 A.2d 899 (1995). motion to dismiss The court's order granting the Chairman's Higginbotham's claims is clearly a final

judgment.6 Moreover, "unless fettered by a Rule or statute, a court ordinarily may take any action sua sponte that it can take in response to a motion, including dismissal of an action." v. Longest, 99 Md. App. 368, 381, 637 A.2d 517 (1994). Fischer A circuit

court can dismiss a complaint as to all named defendants, even based on a motion to dismiss submitted by only one of the

defendants if the grounds for the dismissal applied to all named defendants. If the Commission was properly served, the lack of

evidence in the record notwithstanding, it was a party to the action irrespective of its failure to respond to the complaint. In its order, the court referred to the motion to dismiss as having been submitted by both the Commission and the Chairman. We are

persuaded that the court effectively dismissed the complaint as to

In this context, the court's reference to the motion to dismiss as having been filed by the Commission and the Chairman is irrelevant, the court having never obtained personal jurisdiction over the Commission. -8-

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both defendants, even if the motion was offered by the Chairman only. II. Due Process Higginbotham argues that he pleaded properly a claim of violation of his procedural and substantive due process rights under Article 24 of the Maryland Declaration of Rights,7 and that he is entitled to compensatory damages for those constitutional violations. The Chairman responds that the court properly

dismissed Higginbotham's claim because he does not have a property interest in continued employment, and therefore may be terminated at will. Article 24 "protect[s] an individual's interests in

substantive and procedural due process."

Samuels v. Tschechtelin, "To be successful in

135 Md. App. 483, 523, 763 A.2d 209 (2000).

an action alleging denial of procedural due process in violation of a property interest, a plaintiff must demonstrate that he had a protected property interest, that he was deprived of that interest, and that he was afforded less process than was due." Id. at 523.

A colorable property interest in a position of employment requires "`a legitimate claim of entitlement'" to continued employment. Id.

Article 24 of the Maryland Declaration of Rights states: "That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." -9-

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at 524 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). That claim must be grounded on

a source of law apart from Article 24 itself, i.e., "existing rules or understandings that stem from an independent source such as state law - rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."

Samuels, 135 Md. App. at 524. According to the January 1999 letter from the then Chairman offering the position to Higginbotham, a Public Information Officer is "a Special Appointment position." Maryland Code (1993, 2004

Repl. Vol.),
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