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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2017 September Term, 2007

DEBORAH RANSOM, ET AL. v. JOHN R. LEOPOLD, ET AL.

Salmon, Eyler, Deborah S., Graeff, JJ.

Opinion by Eyler, Deborah S., J.

Filed: December 30, 2008

In the Circuit Court for Anne Arundel County, Deborah Ransom and her adult daughter Tiffany Hancock, the appellants, sued John R. Leopold, County Executive of Anne Arundel County, James Teare, Sr., the Chief of the Anne Arundel County Police Department, and Anne Arundel County, the appellees, and an "Unnamed Police Officer," in an eightcount complaint.1 All claims arose out of an incident that occurred on November 27, 2006, in which Officer Adam Hinson (apparently the "Unnamed Police Officer") shot and killed Ransom's pit bull dog. The appellees filed a motion to dismiss, which was granted in full, with prejudice. Ransom and Hancock brought this appeal, in which they present three questions for review, which we have reordered and rephrased: I. Did the circuit court err in ruling that they did not substantially comply with the notice provision of the Maryland Local Government Tort Claims Act? Did the circuit court err in denying their request for a good cause waiver of the notice requirement of the Maryland Local Government Tort Claims Act? Did the circuit court err by granting the motion to dismiss as to their "claims of violations of Local Government Tort Claims Act, gross negligence and related claims"?

II.

III.

For the following reasons, we shall affirm the circuit court's judgment.
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In the caption of the complaint, one defendant is listed as: Anne Arundel County, Police Department Headquarters 8945 Veterans Highway, Millersville The appellants take the position that this defendant is Anne Arundel County. The appellees take the position that it is the Anne Arundel County Police Department. It seems to us that, although not artfully described, the defendant is Anne Arundel County.

FACTS AND PROCEEDINGS
The appellants allege that the following events took place on November 27, 2006, at Ransom's house in Edgewater, Anne Arundel County. Ransom called the police to report a suspicious vehicle parked near her house for several days. About an hour later, the "Unnamed Police Officer" responded to the call. For ease of discussion, we shall refer to Anne Arundel County Police Officer Adam Hinson in discussing the "Unnamed Police Officer." Officer Hinson walked up to Ransom's door, stood on the front porch, and knocked. Hancock answered the door. Officer Hinson did not identify himself. Hancock went to get her mother. She left Officer Hinson standing on the front porch, with the front door open but a clear glass storm door closed in front of him. As Hancock went to get her mother, the family's dog approached the storm door. Officer Hinson opened the storm door and let the dog out. As the dog greeted him enthusiastically, the officer became frantic, retreated from the porch, and drew his service weapon. By then, Hancock and Ransom were at the door. They yelled for Officer Hinson to stop retreating and remain calm. He did not do so, however. Instead, he shot the dog in the back, killing him.2

Officer Hinson's version of these events, documented in police records that the appellants attached as exhibits to court filings, is completely different. He claims that when Hancock went to get Ransom, she left the glass storm door slightly ajar. The pit bull dog came bounding to the storm door and, despite the officer's efforts to hold the door closed, pushed it open and then attacked him, biting him on several parts of his body. When he saw that the dog was about to attack him again, he shot at the dog's left shoulder, in an effort to stop him. The shot killed the dog.
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On June 18, 2007, the Anne Arundel County Attorney received a letter, dated June 14, 2007, from counsel for the appellants, giving notice of claim under the Local Government Tort Claims Act ("LGTCA"), Md. Code (1974, 2006 Repl. Vol.), sections 5-301 et seq. of the Courts and Judicial Proceedings Article ("CJ"). Among other things, the letter stated that, "[u]pon information and belief, [Ransom and Hancock] sent notice within 180 days to Prince George's County. Immediately upon learning that the injury occurred in Anne Arundel County, [Ransom and Hancock] sent this letter as notice to Anne Arundel County." The appellants attached to the letter a copy of the complaint they intended to file. On July 6, 2007, the appellants filed their complaint in the Circuit Court for Anne Arundel County. In a preface titled, "Exhaustion of Procedural Requirements," they alleged that their lawyer had sent notice of their claims to the County Attorney for Prince George's County, by certified mail, with a postmark of May 25, 2007. "On June 14, 2007, [their] counsel learned that the injury occurred in Anne Arundel County and promptly sent the notice of claims, with a copy of the complaint, to the County Attorney for Anne Arundel County." Acknowledging that the notice of claim was given to the Anne Arundel County Attorney outside the 180 days from injury requirement in CJ section 5-304(b), the appellants moved the court to entertain the suit nevertheless, because they had substantially complied with the notice requirement and/or there was good cause to waive the notice requirement and the appellees had not suffered prejudice from the delay in notice. The complaint sets forth its counts, all of which are stated against all defendants. As Counts VII and VIII were voluntarily dismissed, six counts are operative for our purposes:
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Count I Count II Count III Count IV

Count V Count VI

Tortious Injury to Property; Intentional Infliction of Emotional Distress; Violation of Local Government Tort Claims Act; Violations of Article III, sections 33 and 40 of the Maryland Constitution and Articles 8, 19, 24, and 26 of the Maryland Declaration of Rights; 42 U.S.C. Section 1983 Claim for Violations of the Fourth, Fifth, and Fourteenth Amendments to the Federal Constitution; and Gross Negligence.3

The appellants demanded a jury trial. They did not request a hearing on the motions set forth in their complaint. On July 31, 2007, the appellees filed a motion to dismiss on several grounds, with supporting memoranda of law, affidavits, and exhibits. As to all counts but Count V, they moved to dismiss on the ground that the claims were barred because the appellants had not given timely notice to the Anne Arundel County Attorney within 180 days, as required by CJ subsection 5-304(b). They argued with respect to County Executive Leopold and Chief Teare that none of the facts alleged were based on conduct on their parts and, to the extent they were sued on a respondeat superior theory of liability, neither one of them had taken office by the date of the incident. Both came into office after the incident. The appellees further argued that the LGTCA does not create its own cause of action, as suggested in Count III; Article III, sections 33 and 40 of the Maryland Constitution and articles 8, 19, and 26 of the Declaration of Rights are not implicated in the rights allegedly violated in the incident; a claim for violation of article 24 of the Declaration of Rights merely

The counts that were voluntarily dismissed were for first-degree assault and reckless endangerment.
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"duplicates" the section 1983 claim in Count V; and the excessive force claim in Count V is "misplaced," because the only force used was against the dog, who did not have any federal constitutional rights that could be violated.4 The exhibits attached to the appellees' motion to dismiss were a copy of the June 14, 2007 letter from the appellants' lawyer to the Anne Arundel County Attorney, marked "Received" on June 18, 2007; an affidavit by a legal secretary for the Office of Law asserting that a search of the office's records showed that there was no notice of claim from Ransom or Hancock or both from November 27, 2006, until receipt of the June 14, 2007 letter; and an affidavit by the assistant safety and insurance manager of the Risk Management Division of Anne Arundel County asserting that there was no notice of claim from Ransom or Hancock or both from November 27, 2006, until receipt of the June 14, 2007 letter. The appellees did not request a hearing on their motion to dismiss. The appellants filed a timely opposition to the motion to dismiss. They argued that they substantially complied with the LGTCA notice requirement by sending their notice of claim to the Prince George's County Attorney; and that they had good cause for not strictly complying and the appellees did not suffer any prejudice as a result of the delay. They explained that "[a] law clerk in the [law] office working on the claims notice incorrectly believed that Prince George's was the county in which the injury occurred"; the section 1983

The appellees also argued that the Anne Arundel County Police Department is not a legal entity capable of being sued. As explained supra in footnote 1, the named defendant in this case is Anne Arundel County, not the Anne Arundel County Police Department.
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claim in Count V is not subject to the notice requirement of the LGTCA as to Anne Arundel County or Officer Hinson; it would be premature to dismiss the claims against County Executive Leopold and Chief Teare before discovery had taken place; the LGTCA indeed creates a cause of action; all of the provisions of the Maryland Constitution and Declaration of Rights relied upon in the complaint are implicated; and the section 1983 excessive force claim is not for force used against the dog but for force used against the appellants in taking their property (the dog).5 The appellants' opposition makes reference to Exhibits A and B, but attaches only Exhibit B. The reference to Exhibit A suggests that it would contain the June 14, 2007 letter to the Anne Arundel County Attorney and perhaps the letter allegedly mailed on May 25, 2007, to the Prince George's County Attorney. In fact, neither the latter letter nor any envelopes nor any certified mail receipts for the alleged May 25 letter, or the June 14 letter, are in the record.6 Exhibit B is a copy of the Anne Arundel County Police Department Incident Report for the November 27, 2006 encounter between Officer Hinson and the appellants and their dog and copies of six photographs, one of the interior of a vehicle and the rest of bite and other wounds to Officer Hinson's body. The appellants did not request a hearing on the appellees' motion to dismiss.

The appellants also argued in their opposition that defendant "Anne Arundel Police" should be properly designated as "Anne Arundel County." As explained above, we agree. Even though the May 25, 2007 letter was not made a part of the record, the appellants have included it in the record extract. The letter bears a blank signature line and is not marked certified mail.
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The appellees filed a timely reply memorandum of law. They repeated most of the arguments they had made before and added that any claims against Anne Arundel County (if it is a defendant) are barred by governmental immunity. Two exhibits, both establishing the dates on which County Executive Leopold and Chief Teare took their offices, are attached to the reply memorandum. On September 17, 2007, the court issued an order granting the appellees' motion to dismiss with prejudice. The order was docketed two days later, and this timely appeal followed. We shall include additional information as necessary to our discussion of the issues.

STANDARD OF REVIEW
On appeal from a decision to grant a motion to dismiss for failure to state a claim upon which relief can be granted, "`we must determine whether the complaint, on its face, discloses a legally sufficient cause of action.'" Schisler v. State, 177 Md. App. 731, 742-43 (2007) (quoting Md. Rule 2-322(b)(2); Fioretti v. Md. State Bd. of Dental Exam'rs, 351 Md. 66, 72 (1998)). We "`"determine whether the trial court was legally correct, examining solely the sufficiency of the pleading."'" Pendleton v. State, 398 Md. 447, 459 (2007) (quoting Ricketts v. Ricketts, 393 Md. 479, 491-92 (2006) (quoting Benson v. State, 389 Md. 615, 626 (2005))). In doing so, "we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party." Sprenger v. Pub. Serv. Comm'n of Md., 400 Md. 1, 21 (2007) (quoting Converge Servs. Group v. Curran, 383 Md. 462, 475 (2004)). "We will only find that dismissal was proper `"if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the
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plaintiff."'" Id. (quoting Pendleton, supra, 398 Md. at 459 (quoting Ricketts, 393 Md. at 49192)).

DISCUSSION
I. Substantial Compliance with Notice Provision of the Local Government Tort Claims Act In Thomas v. City of Annapolis, 113 Md. App. 440 (1997), this Court explained: The Local Government Tort Claims Act . . . applies to all suits against local governments arising from events occurring on or after July 1, 1987. The LGTCA covers municipalities and counties and applies to "employees," as distinguished from the common law concept of public officials, and it applies to all torts without distinction, including intentional and constitutional torts. Under the LGTCA, local governments, except to the extent common law immunity is incorporated, have no immunity from torts of their employees unless committed with "actual malice." Further, under the LGTCA, the employees are immune from execution on any judgment if they acted within the scope of their employment and without "actual malice." Id. at 457-58 (footnote omitted). CJ subsections 5-304(b) and (c) provide, in relevant part: (b) Notice required. ---- Except as provided in subsections (a) [not here applicable] and (d) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury. (c) Manner of giving notice. . . . (2) In Anne Arundel County, Baltimore County, Harford County, and Prince George's County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county solicitor or county attorney. (3) The notice shall be in writing and shall state the time, place, and cause of the injury.

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The purpose of the LGTCA notice requirement is "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, 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 the injury and its responsibility in connection with it.'" Moore v. Norouzi, 371 Md. 154, 167-68 (2002) (quoting Williams v. Maynard, 359 Md. 379, 389-90 (2000)). The appellants contend the undisputed facts show that they substantially complied with the notice requirements of CJ section 5-304, and therefore the circuit court erred in granting the appellees' motion to dismiss. They maintain that the facts as pleaded demonstrate that, by virtue of an error on the part of a law clerk, who (for reasons not explained) thought the injury occurred in Prince George's County, not Anne Arundel County, they mistakenly mailed a proper notice of claim to the Prince George's County Attorney on May 25, 2007. May 25, 2007 (a Friday) was exactly 179 days after the November 27, 2006 day of injury. They assert that, by mailing the notice of claim as they did to the Prince George's County Attorney, on May 25, 2007, they substantially complied with the notice and manner of notice requirements of CJ section 5-304. The appellees respond that, contrary to the appellants' suggestion, the appellees do not concede that the notice of claim letter allegedly mailed to the Prince George's County Attorney on May 25, 2007, reached the Prince George's County Attorney's office by May 26, 2007 - - the 180th day after the injury. In any event, they argue, mailing a notice of claim
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letter to an altogether uninvolved county, whether timely or not, is not substantial compliance with the requirement of notice to the county against whom the claim is asserted. Until June 18, 2007, they had no notice of the appellants' claims, and one cannot substantially comply with a notice requirement by giving no notice.7 In Moore, supra, 371 Md. 154, the Court of Appeals held that tort claimants in two cases had substantially complied with the notice requirements of CJ section 5-304 when they did not give notice to the Montgomery County Executive, as prescribed by the LGTCA, but did give notice to that county's claims administrator, Trigon. Montgomery County had contracted with Trigon, a private company, to administer all tort claims against it. The county exercised tight control over Trigon's activities and authorized it to investigate and adjust claims, settle certain small claims, and directly access the county's risk management information system. Observing that "substantial compliance with the statutory requirements [of the LGTCA] may . . . satisfy the statute where the purpose of the notice requirement is fulfilled," id. at 168, the Court reasoned: [W]here the tort claimant provides the local government, through the unit or division with the responsibility for investigating tort claims against that local government, or the company with whom the local government or unit has contracted for that function, the information required by

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