Ungar v. State

• Decision Date: 01 September 1984
• Docket Number: No. 829,829
• Parties: Norbert T. UNGAR v. STATE of Maryland, et al. ,
• Court: Court of Special Appeals of Maryland

Page 472

63 Md.App. 472

492 A.2d 1336

Norbert T. UNGAR v. STATE of Maryland, et al.

No. 829, Sept. Term, 1984.

Court of Special Appeals of Maryland.

June 5, 1985.

Paul M. Weiss, Baltimore, for appellant.

Marc K. Cohen, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee, State of Md., Dept. of Health and Mental Hygiene.

Michael J. McMahon, Asst. County Atty. (Malcolm F. Spicer, Jr., County Atty., Towson, on brief), for appellee, Baltimore County.

Argued before GILBERT, C.J., and WILNER and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

This case requires us to review the rulings of the lower court sustaining all motions raising preliminary objection and a demurrer to appellant's claim and dismissing that claim without leave to amend. We will affirm.

On January 24, 1984, Norbert Ungar, appellant, filed a Claim and Prayer for Jury Trial, (claim) in the Circuit Court for Baltimore County, naming the State of Maryland, Baltimore County, and several individuals, appellees, as defendants.

The claim alleged that in May, 1973, Ungar purchased 5.6 acres of commercially zoned undeveloped land in the Gwynns Falls Basin, for use as an automobile dealership. He obtained the necessary permits, including grading, plumbing and building permits, to proceed with his development plan. Grading and clearing began in July, 1973. Construction started toward the end of August, 1973. On May 14, 1974, by which time Ungar had invested approximately eighty percent of the construction costs, the State Department of Health and Mental Hygiene imposed a sewer moratorium on the Gwynns Falls Basin, prohibiting further connection to the Gwynns Falls sewer main. Pursuant to Ungar's request for an immediate hearing, a hearing was held in September, 1974, and in November, 1974, the moratorium was lifted as to Ungar's property. Ungar contends that the almost seven month delay caused him to incur many increased and added construction costs. ¹ The Ungar Olds, Inc. dealership opened in 1975. The dealership suffered severe financial losses during 1975 to 1977 and in January, 1977, Maryland National Bank instituted foreclosure proceedings against it. On June 16, 1977, the assets of Ungar Olds, and the real estate, owned by Ungar, individually, and leased to the corporation, were sold at foreclosure sale.

Ungar alleges that he subsequently became aware that during 1980, two governmental officials, Alan Spector, then a member of the City Council of Baltimore and one "Wyman", by whom we assume is meant Maurice Wyatt, ² then an aide on the Governor's staff, "were tried for various charges, including bribery and other fraudulent and criminal acts involving the use of their influence over various public officials including certain Maryland State department [sic] of Health employees and officials, and obtaining favored treatment with regard to the lifting of the sewer moratorium and obtaining speedy sewer hook-up, on behalf of certain developers who paid the aforesaid bribes to them.... This favorable treatment for some developers caused a disfavorable treatment of other affected developers such as [Ungar]" and that on January 22, 1981, the appellate court "confirmed the findings of the lower court."

Relief was sought on six bases. In the First Count, Ungar alleged that appellees, by virtue of the procedure for issuing permits, "falsely led" Ungar to believe that once permits were obtained, construction could proceed without interruption; that the sewer moratorium was not only unwarranted but was tainted by deceit and injustice; and that, because of the illegal activities of Spector and Wyatt, Ungar was "unjustly discriminated against." The Second Count alleged that appellees did not follow appropriate standards and procedures in issuing permits and in imposing the moratorium. The Third Count alleged that appellees negligently entrusted the administration of the moratorium to "individuals not qualified or capable of properly carrying out the duties of [their] job or office." In the Fourth Count, "[b]ased on the fraud and proven illegal acts of defendants Spector, [Wyatt] and Norin ³ [sic]", the Assistant Attorney General assigned to represent the State Department of Health and Mental Hygiene, appellees were charged with "an abuse of police powers to have arbitrarily imposed the sewer moratorium", which was accentuated by the complete mishandling of the moratorium. The Fifth Count alleged a breach by appellees of an implied contract not to interfere with the use of building or plumbing permits once issued. Finally, the Sixth Count, charged that the actions of the appellees in connection with the sewer moratorium constituted a taking of his property without just compensation in violation of the Fifth Amendment to the United States Constitution. The claim thus sounded both in tort and contract, although the only relief sought was money damages.

The State filed a Motion Raising Preliminary Objection on the grounds of sovereign immunity and lack of standing and a Special Plea of Limitations. Baltimore County filed similar motions as well as a Demurrer, alleging that the claim failed to state a cause of action, was barred by limitations, and was precluded by then Md.Code Ann. Article 57, § 18 ⁴ because of Ungar's failure to give proper notice of claim to the County. Hearing was held on the pleadings on July 2, 1984. The trial judge sustained the motions raising preliminary objection and the demurrer, without leave to amend. It is from that Judgment that Ungar appeals.

I.

Ungar first argues that the trial judge erred in ruling on appellee Baltimore County's demurrer because demurrers had been abolished, effective July 1, 1984. Relying on Md.Rule 2-302, ⁵ Ungar reasons that since demurrers no longer existed as a valid pleading when the ruling was made, the trial court could not legally rule on the County's demurrer.

While Ungar correctly notes that the trial judge ruled on the County's demurrer on July 2, 1984 and that the new Rules took effect on July 1, 1984, he fails to consider the Rules Order, dated April 6, 1984, of the Court of Appeals, which provides that the Rules:

Shall govern the courts of this State and all parties and their attorneys in all actions and proceedings; and shall take effect and apply to all actions commenced on and after July 1, 1984, and insofar as practicable, to all actions then pending.

It would be the height of folly to adopt Ungar's construction and proposed application of the new Rules. His position flies in the face of their purpose, see Md.Rule 1-201, and is totally devoid of merit. The trial court properly ruled on the County's demurrer, which was pending prior to the effective date of the new Rules. ⁶

II.

Asserting that a demurrer is not the appropriate pleading to determine whether a "taking" has occurred and that his claim states a claim upon which relief can be granted, Ungar next contends that the trial judge erred in granting the demurrer. Again, we disagree.

At the threshold, we acknowledge that Ungar has cited the appropriate test to be used to review the propriety of the grant or denial of a demurrer; well pleaded allegations of fact contained in the complaint are taken as true and the complaint should not be dismissed unless it appears that no set of facts can be proven in support of the claim set forth therein. Nistico v. Mosler Safe Co., 43 Md.App. 361, 405 A.2d 340 (1979). Baltimore Import Car Service & Storage, Inc. v. Maryland Port Auth., 258 Md. 335, 265 A.2d 866 (1970). Nevertheless, we conclude that, under the rules applicable to this case, a demurrer was the appropriate vehicle by which to test the material allegations of the complaint for sufficiency to state a claim upon which relief can be granted.

In Count Four of his claim, Ungar alleges an abuse of police power, specifically,

That in fact the Department of Health of the State of Maryland gave approval for issuance of these building and plumbing permits herein by Baltimore County only after the aforesaid evaluation was completed. At the time these permits were issued the anticipated trend of sewage flow increase and the capacity of the sewage facilities were well known to defendants. The calculations of anticipated sewage flow had already been made and the approval of the issuance of the aforesaid construction permits had already contemplated the capacity of the sewage system versus the requirements of this project. In view of the facts in this case there was an abuse of police powers to have arbitrarily imposed the sewer moratorium on this Ungar Olds development. This abuse was further accentuated by the complete mishandling of the sewer moratorium as aforesaid. Based on the fraud and proven illegal acts of defendants, Spector, Wyman and Norin the imposing of the sewer moratorium was an illegal abuse of police powers and part of a scheme to illegally extract funds from developers. This scheme was tantamount to an extortion effort through the abuse of police powers. The result, however, was to cause grave monetary losses to the plaintiffs.

Count Six sounds in "inverse condemnation". ⁷ The specific allegations are:

Plaintiffs further allege that the actions of the defendants Baltimore County, the Maryland State Health Department, their employees, department heads, and officials involved with the aforesaid sewer moratorium were tantamount to a taking of property without providing fair compensation therefore. This is in violation of the fifth amendment of the United States Constitution.

Essentially, then Ungar contends that the imposition of the moratorium was an unreasonable exercise of police power and that the delay occasioned by the moratorium on Ungar's property was such as to amount to an unconstitutional taking. In essence, he argues that any governmental action that effectively prohibits the owner from using his property constitutes a taking and, if no compensation is paid, the...