*1 966A.2d 418 MARYLAND UNIVERSITY SYSTEM OF Mоoney. Kevin MOONEY and Teresa Term, Sept. No. 2008. Appeals Maryland.
Court 20, 2009.
Feb. *3 F. (Douglas Wherthey, Atty. E. Asst. General Kathleen General, Swann, Asst. Gansler, Sally Atty. Gener- Atty. L. al, Baltimore), brief, on for Petitioner. N. (Jeremy Friedberg and Steven Young S. S.
Gordon Fedder, PC, Leitess, Leitess, Leitess, Owings Friedberg brief, Mills), for Respondents. HARRELL, BATTAGLIA, BELL, C.J., Before:
Argued (Retired, MURPHY, GREENE, C. ELDRIDGE JOHN (Retired, Specially RAKER Assigned), IRMA S. Specially JJ. Assigned,)
BATTAGLIA, Judge. attempt by out Kevin and
The case before us arises Prince Mooney institute suit in the Circuit Court for Teresa County University System Maryland, George’s against assignment rights in a contract upon Mooneys’ based Cable, into Chesapeake entered between the LLC, money. to which had shall hold loaned We Mooneys’ must be of their suit dismissed because failure to exhaust the available administrative remedies.1
I. Introduction Mooney agreed In October Kevin and Teresa Cable, Chesapeake (“Chesapeаke”), LLC the sum lend *4 University’s following ques- presented for the 1. The Petition Certiorari tions, which we have renumbered: respondents may pursue against the 1. If a contract-based claim State, presented administratively agency must it be for review the Maryland required by Appeals, as Title 15 and the Board of Contract the State of Finance & Procurement Article? sovereign immunity respondents’ claim 2. Does the of bar doctrine assignee rights against of as contractual the State? question disposition of We shall not second because of our address the the first. $250,0002 in exchange promissory *5 $43,005.00 for services rendered cable for an account debtor the make to payment was to Chesapeake,6 University the by let- receiving that University although disputes the Mooneys, ter.7 a to 22, 2003, University check Chesa- the issued April
On 2003, Thereaftеr, on $43,005.00. June peake Cable for Payable” at in “Accounts employee emailed an Mooney Kevin check Chesapeake to requesting copy a University, the whom, by it cashed and of how was description as well a into bank Chesapeake’s not deposited “the cheek was because accounting pur- no record company and the has account Mooney July check was faxed to poses”; copy the 2003. against the complaint filed a Mooneys the
On June George’s County, for Prince University in the Court Circuit 9-406(a) of the University the violated Section alleging that (1975, Article, Repl. Maryland Code Law Commercial Vol.),8 Chesapeake Cable “by making payable the Check the Check to Cable instead only by mailing Chesapeake the amount Mooneys.” Damages sought the were Chеsapeake University specifically, to the 6. More an invoice sent from “Doppler Con- the billed for Radar Fiber reflects that was struction.” dispute involving of notice does not affect our conclu- 7. The the issue regarding Mooneys’ remedies. the to exhaust administrative sion failure 9-406(a) Maryland Code the Law 8. Section Commercial (1975, Repl.Vol.), states: (b) through Subject (j), an account debtor on to subsections account, may intangible discharge its paper, payment or chattel after, until, obligation by paying assignor the account but not notification, by assignor debtor receives a authenticated assigned assignee, been or to become due has that the amount due assignee. receipt of payment After is to made notification, by may discharge obligation debtor its the account obligаtion paying assignee discharge paying assignor. are to the Statutory Law Article herein references Commercial (1975, Repl.Vol.), noted. unless otherwise Code $43,005.00 attorneys’ fees, interest, reasonable “plus costs of action, expenses this and other incurred enforcing rights their under the Loan Documents.”
The University filed a Motion to Dismiss and Memorandum in Support, arguing Mooneys’ barred, that the complaint was the sovereign only because State “has waived as immunity to 12-201(a) written contracts” under Section of the State Gov- Article, (1984, ernment Maryland Code Repl.Vol.),9 Mooneys the not did have a written contract with the University. University also asserted that if sovereign waived, immunity had been the Mooneys also failed to file a claim with the appropriate year authorities within the one 12-106(b) provided by limitations period Sеctions 12-202 or of Article,10 the State which govern Government contract and actions, respectfully. tort In the to Motion Dismiss and in Support, University Memorandum the proffered also it Article, Maryland 9. Section 12-201 of State the Government Code (1984, Repl.Vol.), states: (a) general.—Except expressly provided by In as a otherwise law of State, State, officers, may the the its and its units not raise the action, sovereign immunity defense a contract in a court of State, the employee based on a written contract that an official or employee the or 1 executed for State of its units while the official or acting scope authority was within the the of the official or employee. Statutory throughout references to the State Government Article are (1984, Maryland Repl.Vol.), Code unless noted. otherwisе Article, 10. Section 12-202 of the State Government sets forth the time against frame within which a contract claim State the must be filed: A claim under this subtitle is barred unless the claimant files suit year within 1 after the later of: (1) arose; the date which the claim or (2) gives completion of the contract that rise to the claim. 12-106(b) turn, provides Section of the State Government against time frame which a tort claim the State filed: must be (b) required.—A Claim and denial claimant institute action under this subtitle unless: (1) the a claimant submits written claim to the or a Treasurer i designee year injury person of the Treasurer within 1 after the to or claim; property is the basis (2) designee finally; Treasurer denies the claim (3) years the action is filed after within the cause of action arises. defined in nor “person,” an “account debtor” was neither 9-102(a)(3) Article. the Commercial Law Section Dismiss, to Motion In to Defendant’s Opposition their was not barred complaint their argued that University sovereign waived because the immunity, sovereign Chesapeake, the contract when it entered into immunity Compli- was their assigned, nor properly which was thereafter contracts, because period limitations ant barred termination year they filed suit within one The Moo- Chesapeake University. and the contract between timely received although the neys argued that also by making notice, disregarded assignment” “willfully it Com- Maryland that the Uniform Chesapeake payment “per- University, which was apply did mercial Code Commercial 9 of the Uniform son” under Title *7 Code. was denied the Motion to Dismiss University’s
The in court, the that “the issues raised circuit which ordered re-raised in a Motion Motion to Dismiss be Defendant’s can for wherein more factual issues Summary Judgment thereafter, in Soon October of discussed and considered.” Mooney’s the com- filed Answer to University the an Mooneys’ April it the in which it admitted that received plaint, letter, that the asserted as affirmative defenses but sovereign immunity and the claims were barred Mooneys’ statute of limitations. applicable summary filed motions for subsequently cross parties
Both in to the made the Motion judgment echoing arguments thereto; summary both motions for Opposition Dismiss and 7, 2005, University the September were On judgment denied. Leave Amend Answer and an Amended filed a Motion for to letter; 14, 2003, the at
Answer, April it received denying that day, granted court the judge a that the circuit hearing motions request in to oral limine strike defendant’s Mooneys’ motion court neverthe- judge, for to amend answer. The circuit leave less, Dismiss,11 the granted University’s to concluding Motion no because there was written contract between the Moo- neys the University, the claim was in claim essence tort to requiring Mooneys go through the the procedures set forth in the Maryland Tort Act.12 Claims Mooneys
The appealed to the Court Special Appeals, arguing that the erred in judge determining that suit their was an action They argued tort. also were they University entitled to sue the based the contract between Chesapeake and The University. University, conversely, argued the Mooneys’ claim was barred failure to and, comply with Tort Act alternatively, Claims that the could not maintain a against contract action University the University because no had contract In Mooneys. unreported opinion, the intermediate that, appellate court concluded because suit was not an tort, action but “a brought instead suit under Maryland’s Mooneys’ alleged security UCC enforce the interest Chesapeake monies due under its contract with [the Universi- court, ty],” the judgment of the circuit based on the theory tort, that the suit was an action in could not stand. remand,
On University filed “Motion Dismiss or in for Summary Judgment Alternative In Response to the Ruling Special Appeals,” of Court of and Mooneys filed a Summary “Renewed Motion for Judgment.” that, argued because the “General Assembly Maryland has units[13] immunity not waived the sovereign State and its *8 Special Appeals recognized ruling, 11. The of Court later that "the dismissal, though grant summary couched as a [was] fact a of judgment.” Maryland The through Tort Claims Act is codified in Section 12-101 12. 12-110 of the State Government Article. entity 13. A "unit” is defined as "an officer or other that is the government Executive Branch of the State and is authorized law to enter into a contract.” Section State 11-101 of the Article, (1988, Maryland Repl. Finance and Procurement Code 2001
399 1 Article],” the Mooneys Law [Commercial 9 the under Title of Article, while the University under that not sue the could University violated Section 9- that the Mooneys reasserted 406(a) it the check Law Article when sent the Commercial assigned properly had been though they even Chesapeake, After another hear rights. receivable accounts Chesapeake’s motions, Univer judge granted court the the circuit ing the Dismiss, express that “there is no concluding sity’s Motion to Immunity Title 9 of the Sovereign [Commer under waiver of cial Law Article].” of Special Ap again appealed Court Mooneys
The the which, appropriate reported opinion, in a stated pеals, University waived sovereign had was not whether question but whether under the Commercial Law immunity default, was in debtor Mooneys, parties as secured whose Uni rights against the debtor’s contractual could enforce the University sovereign had waived and whether versity, rights. contractual respect to the debtor’s immunity 637, University Maryland, Md.App. Mooney System (2008). appellate The intermediate A.2d University waived sovereign that the had court then concluded Chesapeake’s enforce Mooneys and that the could immunity noted that the waiver of rights. opinion contractual also only year one under Section immunity existed sovereign Article and further that the Government 12-202 of State year of the to file the within one Mooneys “needed suit A.2d 113. In Id. contract.” at at termination terminated, as the contract was well order to determine whеn University notice to the gave proper whether judgment assignment, the court vacated Id. at proceedings. and remanded for further circuit court 113. 943 A.2d at VoL). System present case the State unit is the In Maryland. Statutory Article to the State Finance and Procurement references Code, (1988, Repl.Vol.). are to the herein
400 University certiorari, petitioned
The
which
granted,
we
University Systems v.
290,
Mooney,
405
Md.
II. Discussion The if asserts that even claim, they could pursue a were first to required exhaust their by submitting administrative remedies a contract claim to the procurement officer and the denial protesting Maryland Board”) State Board Appeals of Contract (“Appeals before judicial review, seeking they failed to do. The Moo neys, conversely, argue that we should not consider issue they required whether were first to exhaust their adminis trative remedies because the issue was raised for the first time in the Petition for Certiorari. The Mooneys allege also they are not a or person “contractor” “a who has been awarded a contract” under the State Finance and Procurement so that they required are not to proceed administratively before pursuing remedies.
With to the fact that respect exhaustion of administra tive remedies seminally us, was raised before ordinarily we will not consider an in this issue Court it plainly “unless appears by the record to have been raised in or decided by the 8-131(a)14; trial see also Maryland court.” Rule Robinson State, 456, 404 Burch v. (2008); Md. 946 A.2d 8-131(a) provides: Rule 14. jurisdiction subject The issues of of the trial court over the matter and, 2-322, person unless Rule may waived under over a raised by appellate and decided court whether not raised in and by Ordinarily, appellate decided the trial court. court will not any plainly appears decide other issue it unless the record to have court,
been raised in or decided the trial but the Court decide necessary guide such issue if or desirable to trial court or expense delay appeal. avoid the of another Cable, (2006); 687, 695, Md. 895 A.2d United State, 484, 505, 384 Md. 864 A.2d Fitzgerald v.
(2004). require Rule is “to counsel purpose *10 of lower to the attention of their client bring position and pass upon, court can the trial court at the trial so “to pre in proceedings” errors any correct possibly fashion, accelerating in thus piecemeal of cases a vent the trial Robinson, 216-17, 404 Md. at litigation.” of the termination 1018; 505, at Fitzgerald, 461; 384 at 864 A.2d at Md. 946 A.2d 1070, 1075 499, 509, 639 A.2d v. County Offen, Council 334 Md. (1994). that has usually will not consider an issue
Although we issues, of below, category there is “a limited not been raised ordinarily will jurisdiction, which an court appellate addition to Moats they by were raised a party.” even though address 972, 519, 525, 324 597 A.2d 975 City Hagerstown, v. Md. of (1991). administrative issues is the exhaustion of One of these remedies, the first time will when raised for we address South, See Furnitureland us, or our own before on initiative. State, 126,132, Treasury 771 Inc. Comptroller 364 Md. v. v. Broadcast (2001); Montgomery County 1061, A.2d 1065 Inc., 7, 452, 995, 758 438, 450-451 & A.2d Equities, 360 Md. n. Associates, (2000); Reclamation 7,n. 1003 1002 & 476, 10, 567, County, Inc. n. 677 A.2d v. Harford 342 Md. (1996). 574 n. 10 we will address ex
The determination
whether
remedies,
for the
when raised
first
haustion of administrative
initiative,
part depen
time in this Court or on our own
is
the adminis
statutory
scheme in which
dent on whether
exclusive, primary
is
is deemed to be
remedy
trative
included
Co.,
Zappone
Liberty
v.
Ins.
or concurrent. See
349 Md.
Life
(1998).
1060,
45, 60-61,
We have articulated
706 A.2d
1067-68
remedy
primary,
administrative
is deemed
where the
in Board
sponte;
raised
this Court sua
issue can be
Hubbard,
774,
County
Dorchester
v.
305 Md.
Education 625,
(1986),
786-87,
506 A.2d
we stated:
Where ...
the administrative
is
remedy
deemed to
primary,
this Court has
it
generally held that
must be
pursued
jurisdiction
before a court
exhausted
exercises
to decide
controversy.
Wash. Sub. San. Comm’n
Mitchell &
Best,
supra, 303 Md.
[544]
at
553-554,
495 A.2d
(1985)];
Co.,
[30
Md. Comm’n on Human Rel. v. B.G. & E.
46, 50,
205,
(1983);
296 Md.
459 A.2d
Md. Comm’n
Steel,
Human Rel. v. Beth.
295 Md.
457 A.2d
(1983),
Sec.,
there
explained
cases
cited. As
Dep’t
Human
Res. v.
Wilson,
supra,
286 Md.
[639]
at
[1979],
“when the enacts comprehensive remedial scheme in which claim is to be determined agency administrativе and reviewed in an administrative available, appeal establishes, before review it *11 public policy, that a procedure produces such the most efficient and effective In results. order to effectuate this public trial policy, generally courts not should act until there has been compliance statutory comprehen- sive remedial scheme.”
While the failure to invoke and exhaust an administrative
remedy
not ordinarily
does
result
in
being
a trial court’s
nevertheless,
of
deprived
jurisdiction,
fundamental
because
of
public
involved,
policy
the matter is for
pur-
some
poses
jurisdictional question.
treated like a
Consequently,
of primary jurisdiction
issues
and exhaustion of administra-
tive
will
by
remedies
be
sponte
addressed
this Court sua
even though
not
any party.
raised
in
(Emphasis
original).15 The
of
primary,
nоtion
this con-
text, is juxtaposed against
concepts
of “exclusive” adminis-
State,
15. The
reliance on Jones v.
379 Md.
778
A.2d
Jones,
(2004),
misplaced.
is
In
did
we
not consider
the failure to
remedies,
rather,
exhaust administrative
but
whether
of
Court
Special Appeals properly exercised its
discretion when it remanded
consideration,
post-conviction complaint
to
circuit court for
of
rule,
exception
coconspirator
hearsay
though
was
even
that issue
appeal.
safeguard promulgated
raised for the first time
Jones,
714—15,
784, providing
appellate
First, thus remedy may be the administrative remedy. Under this any resort to an alternative precluding scenario, no cause of action simply there alternative remedy. administrative statutory covered matters Second, remedy primary but the administrative situation, In invoke and this a claimant must exclusive. *12 judicial review remedy, exhaust the administrative and seek decision, can before a court of an adverse administrative judicial adjudicate the merits of the alternative properly remedy. prejudice a criminal consideration of an issue would not
review when
would, instead,
justice,
promote
is
the administration
defendant and
inapplicable
present
the
in
case.
Bell,
State,
571,
(2002)
Conyers
15
State v.
Md.
790 A.2d
367
178,
(1994),
Mooneys,
by the
are
Md.
Bell
We
emphasized
statutory
“where neither the
language
legislative
nor the
history disclose an intent that the admin-
exclusive,
remedy
istrative
to be
and where there is an
judicial remedy
alternative
under another statute or under
equitable
common law or
principles,
presumption
there is no
that the
remedy
administrative
was
exclu-
intended
be
sive.” Zaрpone,
Instead,
Bell
at
at
Md.
A.2d
797.
We
applied
Zappone analysis
then
statutory
Atlantic,
3-102(a)
scheme at issue Bell
Section
(1998),
Public Utilities
Code
stated that
“[a]ny person may
complaint
file a
Commission.” We
concluded that the
was
statutory scheme
to be
intended
remedy
the exclusive
with complaints against
consumers
*13
“ex-
the scheme was not
because
companies,
services
public
of
exhaustion
administrative
language requiring
in its
plicit
Atlantic,
25-26,
at
At the outset general- case, University System we note that the present II of the State Finance ly governed by not Division is ll-203(e) Article Article because Section Procurement provides, part: pertinent
(e) University System Maryland.—(l)(i) In this subsec- following meanings words have the indicated. tion (ii) Regents of the Regents” “Board of means board Maryland. System of University
(iii) System Mary- “University” University means the land.
(2) subsection, in this this provided as otherwise Except University System II does apply Division Maryland.
(3)(i) comply A shall with the procurement by University procedures developed by University policies and the Board of Public Works and the Administra- approved by Executive, tive, Legislative Review Committee of § 12-112 of Edu- Assembly accordance General cation Article. added). Article, 12-112 of the Education
(Emphasis Section (1978, complementary: RepLVol.), Code (a)(1) ll-203(e) provided § Except Fi- State nancе and Procurement is exempt *14 from Division II of the State Finance and Procurement Article.
(2)(i) Subject to review and approval by the Board of Public Administrative, Executive, Works and the and Legislative Review Committee of the General the Board of Assembly, Regents shall develop policies procedures and governing procurements by the University.
(ii) policies The procedures developed under subpara- graph
(i) this paragraph promote of purposes shall procurement § State law set forth as 11-201 the State Finance and Procurement Article. result,
As a the Board of Regents, powers under delegated to it by Legislature, has developed Procurement Policies and Procedures the University System, for X Section of which governs protests in connection with the solicitation and award of contracts as well as contract provides claims and that “[a]n aggrieved party shall all exhaust administrative pro- remedies vided in this section before seeking judicial review.” Universi- ty of Maryland Policies Manual, and Procedures Section VIII-' 3.00, X, Subsection at http://www.president.umd.edu/ available policies/. The Procurement Policies and in- Procedures also clude an extensive protests scheme governing involving the contracts, award of but subject the University to the dispute procedures resolution in the State Finance and Procurement Article when contract claims are involved:
All claims shall be handled accordance with Title Subtitle of the State Article, Finance and Procurement Annotated of Maryland Code of Maryland Code Regula- tions, Title Subtitle 10—Administrative and Civil Reme- dies, 04, 05, Chapters as be may аmended from time to time. X(c). claim,
Id. at A contract defined Section 15-215 Article, State Finance and Procurement “includes a claim breach, modification, or termination performance, about the procurement contract.” and Procure- in the Finance framework State statutory The 15-217, “a Article, which provides includes Section ment contract procurement awarded a person who has been 15-220, officer,” Section a claim to the submit the final action “may appeal a contractor provides Board,” 15-223, which Appeals and Section unit “a of the Appeals review of final decision provides Board, turn, jurisdiction Appeals Board.” 15-211 of Finance and Procure- the State governed Section that, shall Appeals which states Board “[t]he ment from appeals аrising have to hear and decide all jurisdiction the final action of a unit.” *15 statutory the factors to the scheme
Application Zappone of Legislature of has indicated entails consideration whether “the that remedy that the administrative is exclusive.” We note jurisdiction appeals have over “all the Board does Appeals the Although from final of a unit....”16 arising the action “all,” is whole meaning of the word which defined “the plain of,” amount, Colle- quantity, or extent see Merriam-Webster’s (11th ed.2003), an intent on the giate Dictionary suggests the the of part Legislature jurisdiction of the to consider exclusive, in is no such indication Appeals Board as there 15-217(a)(2) of State Finance and Procurement Section Article, states, in that has pertinent part, “person which a who contract a contract procurement been awarded a submit 15-220, оfficer,” nor claim to the Section of a “may the final action provides appeal that a contractor we statutory provisions unit Like the Appeals to Board.” Atlantic, A.2d one in at at analyzed Md. Bell with “[a]ny person may complaint that file a which stated 3-102(a)(l) Commission,” see Section the Public Utilities Article, (1998), in 15- Sections language Code Article, 15-211(a)(2) State Procurement 16. Section Finance and note, jurisdiction Appeals except "a we does from the Board relating property.” of real contract claim a lease 217 and 15-220 of the State Finance and Procurement Article explicitly require does initial exhaustion administrative remedies to the of judicial exclusion the invocation reme- dies.
In the exclusivity, recognized absence of we have that there “a in presumptiоn specif- arises rebuttable the absence of otherwise, statutory language indicating ic an administrative Atlantic, Bell remedy was intended be primary,” 366 Md. at at presumption A.2d and this is not rebutted present statutory case. The scheme resolution of disputes occupies an entire subtitle Finance State is, indeed, Procurement Article and comprehensive, encom- passing the cause of action Mooneys’ sounding breach of Additionally, contract. the agency certainly jurisdic- views its primary, posited tion as “the having Appeals Board shall jurisdiction arising have to hear and decide all under disputes a contract with any agency, State as a result of a breach of a contract any agency....”17 State COMAR 21.02.02.02.
In deciding statutory that the scheme under consideration is primary, reject concurrеnt; we it obviously could be we statute, do so specifically because under the more Section 15- 211 of the State Finance and Procurement agency given authority is to entertain “all from appeals arising breach, final action of unit” on claim for the performance, termination or recognition modification of a contract. This statutory that the scheme a primary embodies administrative remedy our decision in SEFAC &Lift undergirded by *16 Admin., v. Mass Transit Equip. Corp. 374, 367 Md. 788 A.2d (2002), 192 in which we had occasion to consider the same statutory in issue framework and deemed it “either primary or SEFAC, Wilner, exclusive.” In Alan Judge writing M. then Court, this remarked: (§§ 15, 15-223) Title 2 through subtitle 15-201 of the State Finance and Procurement of the Maryland Article Code sets except jurisdiction Appeals 17. COMAR 21.02.02.02 does from the of the disputes relating Board labor claim[s] and "contract to a lease of real property.”
409 resolution of framework for the comprehensive forth a agencies between State disputes contract procurement framework is statutory The heart their contractors. § 15-205. an Board], excep- With created Appeals [the jurisdic- here, agency § 15-211 gives tion not relevant from the final arising “all appeals” to hear and decide tion concerning claim” “a contract agency action of a State modification, or of a breach, termination performance, contract. procurement confirmed, held, recently long and have
We have
has
or exclusive
agency
primary
administrative
“[w]here
the controver
controversy,
parties
over a
jurisdiction
await a final administrative
decision
sy
ordinarily
must
courts for resolution оf
contro
resorting
before
Appeals,
v.
Board
Contract
364
versy.” State
State
Md.
(2001); Board
License Comm.
446,
504,
457,
A.2d
510
773
Wine, Inc.,
418,
916,
v.
761 A.2d
Corridor
Md.
Admin.,
(2000).
Aviation
Driggs Corp.
In
(1998),
406-08,
442-43
we held that
704 A.2d
Md.
juris
or
has either
exclusive
primary
Appeals
[the
Board]
disputes encompassed by
contract
procurement
diction over
that,
result,
“any
§ 15-211
resolution
as
matter,
Appeals Board]
decision
would
[the
before
final
Appeals,
v. State Board
Contract
State
premature.”
510-11; Driggs, supra,
supra, Md. at
Chesapeake required to relief, assignees, were not so seeking judicial they, before person who has been they “[a] were not required, because nor a “contractor” under awarded a contract” Finance and Procure 15-217 and 15-220 of the State Sections respectively, provided: ment protest contract 15-217. Section Submission claim.
(a)(1) general.—A offeror, In prospective bidder a or bid- der, may protest procurement or offeror submit a to the officer.
(2) A person who has been a procurement awarded contract may submit a contract claim to the procurement officer. (b) Time submission.—Except § in provided 15-219 for subtitle, of this a protest or contract claim shall submit required ted within time under regulations adopted by primary procurement responsible unit procuremen for the t.[18] Appeal
Section 15-220. gener- from unit’s decision—In al.
(a) Appeals action.—Except for a contract claim of final related to a for real offeror, lease a or property, bidder a offeror, unit, prospective bidder a or a contractor may appeаl final action of a unit to the Appeals Board. (b) Time under filing.—An appeal this section shall be for filed:
(1) a protest, for within 10 days after receipt of notice of action; a final
(2) claim, days contract within receipt after of the notice of a final action.
To assignee determine whether an comes within the meaning “person” Section 15-217 of the State Finance Article, normal, Procurement we look first plain statute, meaning language reading statute as word, clause, whole ensure that “no phrase sentence or surplusage, superfluous, rendered meaningless or nugatory.” Pope, (2007) Barbre v. 402 Md. 935 A.2d (internal omitted). quotations A “person” Section 15-217 of 15-217(a)(2) by Chapter 18. Section was amended 373 of Laws of to state: person procurement A unit or a who has been awarded a contract submit а contract claim to the officer. is defined Procurement Finance and the State *18 individual, receiver, as “an the same Article 11-101 of Section or fiduciary, repre- trustee, personal representative, guardian, firm, association, any partnership, kind and any sentative of “re- language the entity.” Clearly, or other corporation, fiduciary, or trustee, representative, ceiver, personal guardian, the only person include kind” does not any representative contract, parties repre- third but procurement awarded “receiver,” A contracting party. interests of the senting the furthermore, person appointed a “disinterested is defined as for the court, person, or other aby corporation or by a subject that is property collection of or protectiоn ed.2004). (8th claims,” Dictionary 1296 Black’s Law diverse of the same then, serves some third-party a who Obviously, another, receiver, due by collecting property functions of a statutory definition. by accommodated must also be are concomi- assignee of an rights that the recognized We 520, 256 Md. Goldberg, v. assignor of an James tant to those (1970), 753, wherein we stated: 527, 261 A.2d to transfer to operates assignment generally unqualified An of the title and interest right, all of the assignee and does not subject assignment in the of the assignor right than the greater right assignee any confer upon assignor. possessed Inc., 356 Md. Hyatt Agency, Ins. recently,
More Jones (1999), we 1106 n. 8 also n. 741 A.2d to the same limitations assignees are “bound recognized conclusion, furthermore, that a assignor.” as their Our period contract” has been awarded “person who rights, contractuаl is assignees includes the “contractor” 9-404(a) Law of the Commercial by Section buttressed assignee subject are to”: rights “the of an provides (1) between the account debtor agreement All terms recoupment or claim in aris- any and defense assignor contract; rise to the gave from the transaction ing (2) against or claim of the account debtor Any other defense debtor re- before the account assignor which accrues assignment
ceives notification of the authenticated assignor or the assignee. added).
(Emphasis If assignee subject to all agreement terms of the debtor, between the assignor the account including the complying burden of with the same period limitations as the assignor, they surely subject also must be any condition precedent to the invocation of remedies tо which the assignor subject. would be Exhaustion of administrative rem edies, case, in the present is such a condition precedent, and without satisfying such a condition “the action fatally itself is Montgomery Rios v. flawed.” County, 386 Md. 104, 127, (2005). A.2d To hold otherwise provide would Mooneys with greater rights than Chesapeake, which we will *19 not do. Mooneys, nevertheless,
The University also point to Maryland Architects, Inc., v. MFE Incorporated NCP / 86, (1997), Md. A.2d 676 to support their assertion that only primary contractor is required comply to with the remedy administrative governing procurement contract dis- putes. contrary, case, To the only we held State did not have the opportunity to utilize the administrative remedies under Section 15-217 of the State Finance and Procurement Article by appealing a unit decision against Board of Appeals. We noted that “the omission to authorize a Stаte unit is significant,” id. at 345 Md. at contract claims 93, 679, 691 A.2d at and since that Legislature time the has 15-217(a)(2) responded by amending Section of the State Finance and Procurement Article to allow a State unit to submit a contract claim to the See officer. Laws, 373. Chapter
Where, here, an administrative remedy primary, so that exhaustion of administrative remedies must prior occur to relief, seeking judicial we have suggested that: disputant] [A first must file a complaint adminis- [the trative agency] and then decide to file independent an Thereafter, judicial action. the trial court stay must party of either request judicial upon action independent proceeding. of the administrative final resolution until after 27, 806-07. See also Atlantic, 782 A.2d at Md. at Bell 646, 381 Md. County, Educ. Howard v. Board Arroyo (2004) (“[W]e that there is 576, perceive 584-85 851 A.2d action judicial filing indеpendent against prohibition no but, way, are under proceedings administrative primary while i.e., adjudicating, against deciding, prohibition there is a until a final adminis- judicial case independent in the the issue made.”) If (emphasis original). determination is trative administrative- proceed about whether to any there was doubt their courts, Mooneys could have filed through ly the circuit court action judicially; administratively claim the administrative deci- stayed pending could have been then sion. that the Mooneys alleged complaint,
In their Procure- Finance and under 9-405 of the State was breach Chesapeake April the check to Article when it issued ment denial of have this protested could 2003. days April within 30 after Appeals to the Board their claim 15-220 of the State of Section meaning within the so, do but chose Financе and Procurement we remedies. Because attempting to invoke instead reme- of administrative have that the exhaustion recognized sue, we affirm the right precedent dies is a condition Court, in the Circuit Mooneys complaint dismissal for further proceedings. rather than remand *20 THE OF SPECIAL APPEALS OF COURT JUDGMENT REVERSED; THAT REMANDED TO COURT CASE THE AFFIRM JUDGMENT TO WITH INSTRUCTIONS PRINCE GEORGE’S THE CIRCUIT COURT FOR OF IN THE COUNTY; IN AND COURT COSTS THIS COURT PAID BY BE RESPON- APPEALS TO OF SPECIAL DENT. MURPHY, J.
Dissenting Opinion by
that
to be dismissed on
basis
complaint
never
filed on June
2004. Petitioner
majority opinion was
that
argued
complaint
to the Circuit Court
should be
that
had failed to
ground
respondents
dismissed
“exhaust” their administrative
remedies.
Petitioner never
argument
this
in the briefs it filed on the two
presented
when
bar
pending
occasions
the case at
was
the Court of
Special Appeals.
argument
pre-
Petitioner’s “exhaustion”
was
argument
sented for the first time at the second oral
in the
Mooney
University System, Special
Court of
Appeals.
(2008).
647 n.
If disputed Chesapeake’s right Petitioner had to receive its unpaid $43,005.00 payment, Chesapeake assigned Respondents, Respondents claim to would have been required proceed administratively before the Board of Contract bar, however, The case at Appeals. dispute does not involve a between Petitioner I Chesapeake. agree While with the majority ‘person’ Section 15-217 of the State “[a] ... Finance and Procurement Article does not include only contract, the person awarded the but third par- representing contracting party[,]” ties the interests of the I do agree Respondents not should be included in the defini- “person” ground they tion of on the are involvеd in the process of “collecting property due to Because another[.]” Respondents are “representing not the interests of the con- tracting party,” attempting and are not to collect funds that Chesapeake, Petitioner had withheld from I would affirm the judgment Special of the Court of Appeals and order that this case be returned to the proceedings Circuit Court further opinion inconsistent the March of the Court of Special Appeals. for two notes a Securi- ty Agreement, assigned Chesapeake’s receiv- accounts Mooneys able to the in the event that Chesapeake were to Loan, default “in connection with the including but limited interest, fee, to any principal, deposit, penalty, charge, ad- vancement, assessment, escrow or or pre- taxes or insurance miums, Note, provided in Agreement, any as the the other Mooney, Loan Document.” Kevin whose affidavit states he was a of Chesapeake, signed Security “member”3 Agree- as a ment both lender and a borrower. as In a dated April Mooneys gave letter Chesa- peake Security written notice of under Agreement, default for to make timely payments failure on the loan. letter Mooneys further possession advised intended take notify of receivable Chesapeake’s accounts and to account payments make subsequent debtors to directly Moo- days later, 11, 2003, neys. Mooneys Two on April perfect- security ed their in Chesapeake’s interest accounts receivable financing a with the filing Maryland Department statement The Mooneys alleged Assessments Taxation.4 also their complaint they University System notified (the that, Maryland “University”)5 because the was undisputed Chesapeake promissory It is issued two notes to the 2. $200,000 $50,000, although Security amount of $200,000 Agreement only Agreement refers Line to Credit and a promissory unspecified note money for an amount. sum of The total nevertheless, Chesapeake, analysis. lent to is not relevant to our Article, Corporations 3. Under 4A-602 Section of the and Associations (1975, Maryland Repl.VoL), Code a member has an interest personal property liability company. of a limited security against is defined of a "[v]alidation Perfection interest as 4. creditors, usually by filing public other statement with some office or by taking possession Dictionary of the collateral.” Black’s Law ed.2004). (8th University Maryland, College 5. The Park is a constituent institution University System Maryland. Section 12-101 the Education (1978, Repl.VoL). Code