Higginbotham v. Psc

Decision Date26 October 2006
Docket NumberNo. 2346 September Term, 2004.,2346 September Term, 2004.
Citation909 A.2d 1087,171 Md. App. 254
PartiesRobert M. HIGGINBOTHAM, II v. PUBLIC SERVICE COMMISSION OF MARYLAND et al.
CourtCourt of Special Appeals of Maryland

Kathleen Cahill, Towson, for Appellant.

Susan S. Miller, Baltimore, for Appellee.

Panel: KENNEY, SHARER and WOODWARD, JJ.

KENNEY, Judge.

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. He presents three questions,1 which we have recast as 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 court err in dismissing Higginbotham's claims for compensatory damages?

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") informed Higginbotham that his employment was terminated. Higginbotham appealed his termination to the Chairman on April 30, 2004. The appeal was denied on May 12, 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, capriciously, and unreasonably, in that [it] terminated plaintiff's employment unilaterally, without legal 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 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 "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 moved to dismiss Wilson's claims on June 30, 2004. After a 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 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. The Chairman urged the court not to consider the motion to amend. Neither party requested a hearing on the Chairman's motion.4

The court granted the motion to dismiss in an order dated October 19, 2004. The court's order merely states: "UPON CONSIDERATION OF the Motion to Dismiss, Memorandum in Support Thereof and Reply Memorandum of the Public Service Commission and 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
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, Higginbotham named the Commission and the Chairman. The docket 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 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 IRM, 106 Md.App. 699, 707, 666 A.2d 899 (1995). The court's order granting the Chairman's motion to dismiss 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." Fischer v. Longest, 99 Md.App. 368, 381, 637 A.2d 517 (1994). 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...

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