Town of Riverdale Park v. Ashkar

• Decision Date: 15 July 2021
• Docket Number: No. 49, Sept. Term, 2020,49, Sept. Term, 2020
• Parties: TOWN OF RIVERDALE PARK v. Mamoun K. ASHKAR, et al.
• Court: Court of Special Appeals of Maryland

474 Md. 581

255 A.3d 140

TOWN OF RIVERDALE PARK

v.Mamoun K. ASHKAR, et al.

No. 49, Sept. Term, 2020

Court of Appeals of Maryland.

July 15, 2021

Argued by Kevin Karpinski (Michael Rynd, Karpinski, Cornbrooks & Karp, P.A. of Baltimore, MD) on brief, for Petitioner.

Argued by Levi S. Zaslow (Timothy F. Maloney, Joseph, Greenwald & Laake, P.A. of Greenbelt, MD) on brief, for Respondents.

Argued before: Barbera, C.J.; McDonald, Watts, Hotten, Getty, Booth and Biran, JJ.

Hotten, J.

Mamoun K. Ashkar ("Ashkar"), a Palestinian-American and president of Greg's Towing ("Greg's"), brought suit against Petitioner, the Town of Riverdale Park, Maryland ("the Town")¹ and members of the Riverdale Park Police Department ("RPPD"), for claims that included intentional discrimination on the basis of national origin, in denying Greg's a municipal towing contract.²

The case proceeded to a five-day jury trial in the Circuit Court for Prince George's County. At the close of the evidence, the Town moved for judgment on the three remaining counts of discrimination, malicious prosecution, and tortious interference with a contractual relationship. Ashkar withdrew the tortious interference claim, and the circuit court granted the motion in favor of the malicious prosecution claim, but reserved ruling on the discrimination claim, sending that claim to the jury.

The jury found in Ashkar's favor on the discrimination claim and awarded $244,212 in damages and $15,000 in non-economic damages. The Town moved for judgment notwithstanding the verdict ("JNOV"), which the circuit court granted, citing Ashkar's lack of "direct evidence" of discrimination, lack of circumstantial evidence of discrimination that could be imputed to the Town, and no evidence of language "which would demean the inherent dignity of any person[ ]" pursuant to Prince George's Cty., Md., Code of Ordinances subtit. 2, div. 12, subdiv. 8, ("Prince George's Cty. Code") § 2-229(a)(3).

Ashkar appealed the dismissal of the malicious prosecution claim and the grant of the motion for JNOV to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals affirmed the dismissal of the malicious prosecution claim, but the panel split 2-1 in reversing the grant of the motion for JNOV. The majority held that Ashkar presented sufficient evidence such that a jury could reasonably conclude that the Town offered a pretextual reason for denying the towing contract based on national origin. The Town timely appealed to this Court.

We granted certiorari on February 8, 2021, Town of Riverdale Park v. Ashkar, 472 Md. 5, 243 A.3d 1199 (2021), to address the following questions:

1. Did [the Court of Special Appeals] err in reversing the [circuit] court's ruling that [Ashkar] had failed to prove that [the Town's] business decision was pretextual and not based on discrimination?

2. Did [the Court of Special Appeals] err in directing that the case be remanded so that the jury's verdict could be reinstated, where the [circuit] court expressly ruled that [Ashkar] had failed to prove damages in any non-speculative manner, and where the verdict is, in any event, subject to a statutory cap lower than the amount of the verdict?

We answer both questions in the negative and shall affirm the judgment of the Court of Special Appeals.

FACTS AND PROCEDURAL BACKGROUND

Underlying Incident

The following background comes from testimony and exhibits adduced at trial. We note at the outset that when we review the circuit court's "decision to grant a defendant's motion for judgment notwithstanding the verdict, an appellate court must view the evidence in the light most favorable to the plaintiff and resolve all conflicts in the plaintiff's favor." Kentucky Fried Chicken Nat'l Mgmt. Co. v. Weathersby , 326 Md. 663, 666, 607 A.2d 8, 9 (1992) (citing Lehman v. [Balt. ] Transit Co. , 227 Md. 537, 540–41, 177 A.2d 855, 857 (1962) ). "Therefore, we present the facts of the case from [Ashkar's] point of view." Id. , 607 A.2d at 9.

The Town was incorporated in 1920 as the "Town of Riverdale" and changed its name to the "Town of Riverdale Park" in 1998.³ The Town's Charter specifies the general power of the Town to enact ordinances on behalf of the town. Town of Riverdale Park, Md., Charter, art. III, § 301.

Exercise of Powers. For the purpose of carrying out the power granted in this charter, the council may pass all necessary ordinances. All the powers of the town shall be exercised in the manner prescribed by this charter, or if the manner is not prescribed, then in such manner as may be prescribed by ordinance. ...

Town of Riverdale Park, Md., Charter, art. III, § 303.

In 1962, the Town, pursuant to Article III of its charter,⁴ enacted an ordinance that required all businesses operating in the Town to apply for and receive a business license. Town of Riverdale Park, Md., Code § 42-4. The Town's ordinances do not impose any specific requirement to operate a towing business within municipal limits, but gives the RPPD the "authority to impound and remove [any] vehicle [left unattended in violation of any law, ordinance or order] and charge the owner thereof the costs of towing, storage, and any other charges incurred in connection therewith." Town of Riverdale Park, Md., Code § 64-15.

The Town Charter specifies that purchases, including towing contracts, shall be made subject to the approval by the mayor and town council:

Purchasing and Contracts:

(a) All purchases, contracts, and/or expenditures for the town shall be made by the town administrator and/or specified individuals subject to approval of the mayor and council. All bills for purchases, contracts, and/or expenditures shall be approved by the mayor and responsible council members, committees, and administrative personnel by whatever procedure established from time to time by the mayor and council .

***

(d) Any and all other rules and regulations pertaining to purchasing and contracts ... shall be prescribed by ordinance or resolution by the mayor and council at a regular or special public meeting .

Town of Riverdale Park, Md., Charter, art. VI, § 622 (emphasis added).

Neither party made the Court aware of any resolutions or ordinances that specifically address the procurement of towing contracts.⁵ The record also provides no indication of any written policy or procedure from the mayor, the Town council, or the RPPD addressing or directing the acquisition of a towing services.⁶ The record also omits any indication of the Town's incorporation by reference to any law requiring a tow company to seek approval from Prince George's County Towing Services Program because such a requirement was not enacted until 2018.⁷

Greg Prendable founded Greg's in 1974 and formally incorporated the business in Maryland in 1986. Greg's is located near the center of the Town. From 1974 to 2013, Greg's provided uninterrupted towing and vehicle storage services to the Town and surrounding communities. To this day, Greg's remains the only towing and storage lot within Town limits.

Prendable had maintained a towing agreement with the RPPD.⁸ Prendable or one of his employees would retrieve illegally parked, wrecked, or otherwise disabled vehicles and could store these vehicles within Greg's secured facility. Sometime prior to March 2013, Prendable determined that he would sell his towing business and retire. Ashkar testified that he first heard of the sale of Greg's in "early 2013[,] ... probably February/March." The Town became formally aware that Prendable was selling Greg's, at the latest, on May 8, as reflected in a memorandum from Town Administrator Imhulse to Mayor Archer, RPPD Chief David C. Morris, and Public Works Director Leonard Addison that stated "we have heard that [Greg's Towing] may be up for sale. It may be a good idea for the Town to look into purchasing the property."

Prendable received bids from AlleyCat Towing and Recovery ("AlleyCat"), Five Star Towing, owned by Ashkar and his three brothers,⁹ and one other company. AlleyCat offered the highest bid, and Prendable accepted.

On October 29, 2013, Assistant Chief of Police, Lieutenant Colonel Patrick G. Timmons, sent a letter on official RPPD letterhead, denoting David C. Morris as Chief of Police, to Charles Heidenberg, owner of AlleyCat, stating that "we desire AlleyCat [ ] begin towing for us on November 1, 2013," on an interim basis subject to future contract negotiations. (Emphasis added.) On October 31, 2013, Greg's stopped towing for the Town. According to Ashkar's testimony, the RPPD was under the assumption that AlleyCat would eventually complete the acquisition of Greg's.

On October 29, 2013, Prendable communicated to the Prince George's County Police Department that his towing license with the county would expire October 31, 2014, and he would no longer provide towing services. With impending retirement, Prendable intended for Greg's membership with the Prince George's County Police Department Authorized Tow Services Program ("Tow List") to lapse. Ordinarily, a towing company must apply for and/or renew membership to the Tow List every two years. The application for the 2014–15 Tow List membership was due November 2013. After Prendable secured a bid for his business, he belatedly submitted his application for the 2014–15 Tow List on June 6, 2014. His application was untimely, so it was placed in a pending file, should the Prince George's County Police Department need to immediately expand towing capacity before the next Tow List cycle.

The Town's witness, Lieutenant Macherko from the Prince George's County Police Department Towing Coordination Unit, testified that Greg's was fully qualified to be on the Tow List, but for its belated submission: "Q: And at no point did you receive any information that Greg's was no longer qualified to be on the list, is that correct? [Macherko:] That's correct." Apart from the lapse in 2014 due to Prendable's retirement, Greg's maintained membership on the Tow List before and after the 2...